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ELRCPartially AllowedCause No 2406 of 2017· [2022] KEELRC 1056 (KLR)

Kenneth Kiongo Ndumbi v Kenol Kobil Limited [2022] KEELRC 1056 (KLR)

Employment and Labour Relations Court
20 January 2022
LNLINNET NDOLO
4,326 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled Kenol Kobi unfairly sacked its accountant and ordered payment of over Kshs. 3.7 million plus costs.

What this practically means

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Executive summary

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Kenneth Kiongo Ndumbi, an Accounts Payable Accountant employed by Kenol Kobi Limited from 2002, was summarily dismissed on 4th August 2017 on allegations of gross misconduct, including erroneous debit notes, double payments, unreconciled accounts and unauthorised balance transfers. He claimed the dismissal violated Article 41(1) of the Constitution and sought compensation, severance pay, notice pay, leave pay, aggravated damages, salary to retirement and a Certificate of Service. The Respondent maintained the dismissal was lawful, procedural and justified. The court framed two issues: whether the dismissal was lawful and fair, and whether the Claimant was entitled to the remedies sought. Applying Section 41 of the Employment Act and its own precedent in Rebecca Ann Maina, the court held that the Claimant was denied the documents and system access necessary to prepare his defence; the Respondent's witnesses conceded this, and no record of the 4th August 2017 meeting was availed. The charges were thus not proved at the shop floor, and the forced annual leave used to pave way for investigations was also unprocedural. The court found the dismissal substantively and procedurally unfair. It awarded twelve months' salary in compensation, notice pay, July 2017 salary and 36 days' leave pay, totalling Kshs. 3,767,763.54, with interest at court rates, a Certificate of Service and costs. Claims for aggravated damages, severance pay and salary to retirement were disallowed for lack of basis.

Key legal issues

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01

Whether the Claimant's dismissal was procedurally fair

Holding

The dismissal was procedurally unfair because the Claimant was denied access to the documents and the Oracle System necessary to defend himself, and no record of the 4th August 2017 hearing was availed.

Reasoning

Section 41 of the Employment Act requires the employer to explain the reasons and hear the employee's representations. The Claimant requested access to documents and the company system; the Respondent did not respond to the request. Its own witnesses admitted it was impossible to respond to accounting queries without documents and that the Claimant was denied access to the Oracle System. No record of the hearing was produced, so the court could not assess its legal efficacy. The process was short-circuited and the outcome a sham.

p. 7
02

Whether the dismissal was substantively justified

Holding

The dismissal was substantively unfair; the allegations of gross misconduct were not proved.

Reasoning

The Respondent alleged negligence and fraud in the Accounts Payable function, yet the Claimant's performance appraisals rated him 'very good' and once 'excellent'. Because the disciplinary process denied him the means to respond and produced no reliable record, the charges were not proved. The court found the dismissal substantively and procedurally unfair, entitling the Claimant to compensation.

p. 7
03

Whether forcing the employee on annual leave to allow investigations was lawful

Holding

It was unprocedural and unlawful to force the Claimant to take annual leave to pave way for investigations.

Reasoning

The Respondent's Human Resource Manager confirmed that annual leave is not a disciplinary avenue under the Respondent's Human Resources Policy, nor is it one in law. Using compulsory leave as a de facto disciplinary measure therefore violated the Claimant's rights and formed an additional fault line in the process.

p. 7
04

Remedies payable for unfair termination

Holding

Twelve months' salary in compensation, one month's notice pay, July 2017 salary and 36 days' leave pay were awarded; aggravated damages, severance pay and retirement salary were disallowed.

Reasoning

In fixing compensation at twelve months' salary, the court took into account the Claimant's long service, documented good performance, and the Respondent's unlawful conduct. Leave pay succeeded in the absence of leave records to the contrary. No basis was laid for aggravated damages, severance pay or salary up to retirement, which failed.

p. 7

Legal principles established

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  • For an employee to respond to allegations, the charges must be clear, the employee afforded sufficient time to prepare a defence, and entitled to documents in the employer's possession assisting the defence.
  • An employer's suspicion or perception of an employee's breaches cannot justify denying the employee the right to be heard in his defence.
  • Forcing an employee to take annual leave to pave way for investigations is unprocedural and unlawful.

Court orders

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  1. 1.12 months' salary in compensation of Kshs. 2,974,550.16
  2. 2.One month's salary in lieu of notice of Kshs. 247,879.18
  3. 3.Salary for July 2017 of Kshs. 247,879.18
  4. 4.Leave pay for 36 days of Kshs. 297,455.02
  5. 5.Total judgment of Kshs. 3,767,763.54 with interest at court rates from the date of judgment until payment in full
  6. 6.Claimant entitled to a Certificate of Service
  7. 7.Costs of the case awarded to the Claimant

Authorities

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Legislation

  • Constitution of KenyaArticle 41(1)
  • Employment ActSection 41
  • Employment ActSections 42(1), 44(3) and (4)

Cases cited (3)

  • Rebecca Ann Maina & 2 others v Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
  • Kenya Plantation & Agricultural Workers Union v Finlays Horticulture Kenya Ltd
    [2015] eKLR
  • Ol Pajeta Limited v David Wanjau Muhoro
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Article 41(1) of the Constitution (right to fair labour practices)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenneth Kiongo Ndumbi v Kenol Kobil Limited [2022] KEELRC 1056 (KLR)", Case Analysis (2022). Cause No 2406 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1056/eng@2022-01-20

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