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ELRCPartially AllowedCause No 1228 of 2016· [2022] KEELRC 938 (KLR)

Peter Mutinda Ngei v Rentokil Initial (K) Limited [2022] KEELRC 938 (KLR)

Employment and Labour Relations Court
28 January 2022
SRSTELLA RUTTO
4,263 words in judgment
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The bottom line

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A Kenyan court ruled Rentokil unfairly sacked a technician because M-Pesa statements alone couldn't prove theft, awarding him six months' salary.

What this practically means

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Executive summary

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The claimant, a pest control technician employed by the respondent from August 2013, sued for unfair termination following his dismissal on 3rd September 2015. The respondent alleged the claimant stole chemicals and sold them to a competitor, Mr. Gerald Githiri, relying on M-Pesa statements showing payments from Githiri, and contending a show cause letter and disciplinary hearing preceded dismissal. The claimant denied the allegations, stating the payments related to a shared Chama, denied receiving a show cause letter or attending a hearing, and asserted he was summarily dismissed by directors. The court framed two issues: whether termination was unfair and unlawful, and entitlement to reliefs. It held the employer bore the burden of proving substantive justification and procedural fairness. The M-Pesa statements conflicted with RW1's testimony on how they were obtained, and there was no evidence that Githiri was a competitor or that the reports implicating the claimant came from credible witnesses; the allegations remained speculative, so substantive justification failed. On procedure, the respondent could not prove service of the hearing invitation, the minutes were too sketchy to record the claimant's defence, and the dismissal letter ignored the hearing, so procedural fairness also failed. The court declared the termination unfair and unlawful, awarded five months' gross salary (Kshs 75,000) as compensatory damages and one month's notice pay (Kshs 15,000), with interest, but denied severance, 2014 leave, and costs (each party to bear its own costs due to the claimant's non-compliance with submission-filing directions).

Key legal issues

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01

Substantive justification for termination

Holding

Respondent failed to prove valid and fair reasons; allegations rested on M-Pesa statements and unsubstantiated reports

Reasoning

Section 43(1) and 45(2) place the burden on the employer to prove valid, fair reasons. The respondent relied only on M-Pesa statements, which conflicted with RW1's testimony on how they were obtained, and on reports whose authors never testified. There was no evidence that Mr. Githiri was a competitor or that the claimant's dealings were work-related rather than social. Allegations therefore remained speculative.

p. 4
02

Procedural fairness under section 41(1)

Holding

Respondent failed to demonstrate a fair hearing; service of invitation unproven, minutes sketchy, dismissal letter ignored the defence

Reasoning

The respondent did not show how the hearing invitation was served or that the claimant was given the evidence against him. The disciplinary minutes recorded only a brief oral comment without the defence in writing, did not indicate witnesses or how findings were reached, and the dismissal letter made no reference to the hearing or the defence. The requirements of section 45(2)(c) were thus not met.

p. 5
03

Reliefs entitlement

Holding

Five months' salary as compensatory damages and one month's notice pay awarded; severance and 2014 leave denied

Reasoning

Having found unfair termination, the court awarded five months' gross salary as compensatory damages considering length of employment, and one month's notice under section 35(1)(c). Untaken 2014 leave was forfeited under the contract's accumulation clause, and severance was inapplicable because termination was not under section 40(1). A certificate of service entitlement was noted.

p. 5

Legal principles established

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  • An employer bears the burden of proving valid and fair reasons for termination and procedural fairness; M-Pesa statements alone, without corroborating evidence, do not substantiate allegations of dishonesty or theft.
  • Minutes of a disciplinary hearing must sufficiently record the employee's defence; sketchy minutes do not establish a fair hearing under section 41(1) of the Employment Act.

Court orders

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  1. 1.A declaration that the claimant's termination was unfair and unlawful.
  2. 2.Compensatory damages in the sum of Kshs 75,000/= which sum is equivalent to 5 months gross salary.
  3. 3.One-month salary in lieu of notice being Kshs 15,000/=.
  4. 4.Interest on the amount in (b) and (c) at court rates from the date of Judgement till payment in full.
  5. 5.Each party shall bear its own costs.

Authorities

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Legislation

  • Employment ActSection 43(1)
  • Employment ActSection 45(2), 45(2)(c)
  • Employment ActSection 44(4)(g)
  • Employment ActSection 41(1)
  • Employment ActSection 35(1)(c)
  • Employment ActSection 40(1)
  • Employment ActSection 51(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d); Article 48

Cases cited (5)

  • Kenafric Industries vs John Njeru
    (2016) eKLR
  • Kenya Power & Lighting Company Limited vs Aggrey Lukorito Wasike
    (2017) eKLR
  • Chairman Board of Directors (National Water Conservation and Pipeline Corporation) vs Meshack M. Saboke & 2 others
    Nairobi Civil Appeal No. 241 of 2015
  • Pius Machafu Isindu vs Lavington Security Guards Limited
    [2017] eKLR
  • Postal Corporation of Kenya vs Andrew K. Tanui
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; memorandum of claim under its procedure)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Peter Mutinda Ngei v Rentokil Initial (K) Limited [2022] KEELRC 938 (KLR)", Case Analysis (2022). Cause No 1228 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/938/eng@2022-01-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.