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ELRCDismissedNot stated in judgment· [2022] KEELRC 4139 (KLR)

Kizito v Kenya Kazi Services Limited (Cause 1568 of 2016) [2022] KEELRC 4139 (KLR)

Employment and Labour Relations Court
28 April 2022
MMM. Mbarũ
1,073 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court upheld a security guard's dismissal for being drunk at work because the employer gave him a fair hearing before firing him.

What this practically means

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Executive summary

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The claimant, employed as a security guard by the respondent from 1996, was summarily dismissed by letter dated 12th February 2016 after being found intoxicated at work on 31st January 2016. He was taken for a blood test at AAR Healthcare which confirmed intoxication, subjected to a disciplinary hearing on 11th February 2016 in the presence of two union officials, and his appeal was rejected. He sued for one month's notice pay (Ksh.23,690), unpaid leave for a year, compensation of twelve months (Ksh.284,280), punitive damages for breach of constitutional rights, and costs. The respondent, through its human resource officer, justified the dismissal as gross misconduct inconsistent with the trust required of a security guard, and asserted all dues (Ksh.13,641 as terminal dues) were paid. The court held that while an employer may dismiss for gross misconduct, Sections 41 and 44(4) of the Employment Act oblige the employer to hear and consider the employee's representations before dismissal, citing Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd and Alinur Mohamed Abdi v County Government of Garissa. On the facts, the claimant was taken through a disciplinary process and appeal, so his rights were secured. Intoxication at work constitutes gross misconduct under Section 44(4)(b). The dismissal was lawful and justified, defeating the notice pay and compensation claims. On leave pay, the court found the basic wage was Ksh.12,221 and the Ksh.13,641 already paid exceeded the leave pay due under Section 28, so nothing further was payable. The claim was dismissed with each party bearing their own costs.

Key legal issues

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01

Lawfulness and justification of the summary dismissal

Holding

The dismissal was lawful and justified as the claimant was found intoxicated at work on a blood test and was taken through a disciplinary process in the presence of union representatives and allowed an appeal

Reasoning

The court found that intoxication at work constitutes gross misconduct under Section 44(4)(b) of the Employment Act. The claimant did not deny being taken for a blood test at AAR Healthcare which found him intoxicated. The procedural safeguards of a hearing before union officials and a subsequent appeal satisfied Section 41 of the Act, rendering the dismissal lawful and the notice pay and compensation claims unavailable.

p. 3
02

Leave pay entitlement

Holding

Leave pay due on the basic wage of Ksh.12,221 under Section 28 was exceeded by the terminal dues of Ksh.13,641 already paid, so no further award lies

Reasoning

The respondent paid terminal dues of Ksh.13,641 without explaining their breakdown, and the leave pay aspect was not addressed. The claimant's payment statement showed a basic wage of Ksh.12,221, making the leave pay due under Section 28 lower than the sum already paid. The claimant therefore could not claim beyond that amount.

p. 3

Legal principles established

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  • An employer may summarily dismiss for gross misconduct but must first hear and consider the employee's representations under Sections 41 and 44(4) of the Employment Act
  • Intoxication during working hours rendering an employee unwilling or incapable of performing work amounts to gross misconduct justifying summary dismissal

Court orders

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  1. 1.The claim is found without merit and is dismissed
  2. 2.Each party shall pay own costs

Authorities

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Legislation

  • Employment Act, 2007Section 41(2)
  • Employment Act, 2007Section 44(3) and (4), including 44(4)(b)
  • Employment Act, 2007Section 28

Cases cited (2)

  • Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd
    [2013] eKLR
  • Alinur Mohamed Abdi v County Government of Garissa
    [2021] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations claims; Employment Act, 2007

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, "Kizito v Kenya Kazi Services Limited (Cause 1568 of 2016) [2022] KEELRC 4139 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4139/eng@2022-04-28

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