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ELRCDismissedCause No 405 of 2016· [2023] KEELRC 123 (KLR)

Nanjala v Brookview Limited (Cause 405 of 2016) [2023] KEELRC 123 (KLR)

Employment and Labour Relations Court
26 January 2023
OKOcharo Kebira
3,613 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A domestic worker fired for theft lost her case because the Kenyan court found her employer followed the law and the dismissal was justified.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from April 12, 2011 as a domestic worker at the residence of two of its directors, was summarily dismissed on November 25, 2015 over allegations of stealing personal effects, household items and a bottle of whiskey belonging to her employer. She sued for a declaration that her termination was unlawful, loss of job expectation of Kshs 150,000, hardship allowance of Kshs 65,000, general damages for defamation and costs. The Respondent denied the claim, asserting the dismissal was justified by gross misconduct and procedurally fair. At hearing, the Claimant's testimony contradicted her pleadings and witness statement on the manner of dismissal and on whether she was heard; under cross-examination she admitted being informed of the accusations and given an opportunity to explain herself. The Respondent's three witnesses gave consistent evidence of the theft-related conduct, supported by photographs and contemporaneous complaints. The court framed three issues: fairness of the dismissal, entitlement to reliefs, and costs. It held that the Section 41 procedure (information, hearing and consideration) was followed, rendering the dismissal procedurally fair. On substance, applying Section 44(3), the theft-related conduct amounted to gross misconduct and a fundamental, repudiatory breach undermining the trust essential in a role caring for an elderly lady with dementia. The dismissal was therefore substantively justified. All reliefs collapsed: the declaration, loss of job expectation and defamation damages failed with the finding of fairness; the hardship allowance had no contractual, statutory or practice anchor and was declined. The suit was dismissed with costs to the Respondent. The Claimant had filed no submissions by the date of judgment.

Key legal issues

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01

Procedural fairness of the summary dismissal

Holding

The dismissal was procedurally fair — the Claimant was informed of the accusations and given an opportunity to explain herself.

Reasoning

Section 45(2)(c) renders termination unfair absent procedural fairness, and Section 41 supplies the procedure, comprising information, hearing and consideration components. The Claimant admitted under cross-examination that the accusations were put to her and that she was given an opportunity to explain herself, supporting the Respondent's defence of procedural fairness.

p. 6
02

Substantive fairness / validity of the reason for dismissal

Holding

The theft-related conduct constituted gross misconduct and a fundamental breach, justifying summary dismissal.

Reasoning

Sections 43 and 45 place the burden on the employer to prove and justify the reasons for termination. The Respondent's three witnesses gave consistent, credible evidence of the Claimant taking the employer's items; the Claimant's testimony contradicted her pleadings and witness statement. Her conduct, in a role caring for a vulnerable elderly lady with full access to the premises, undermined the trust essential to the employment relationship.

p. 7
03

Entitlement to the reliefs sought, including hardship allowance and defamation damages

Holding

All reliefs were declined; the hardship allowance claim had no contractual, statutory or practice anchor, and the defamation claim was unproven.

Reasoning

With both procedural and substantive fairness established, reliefs premised on unfairness necessarily fail. The Court separately considered the hardship allowance and found no evidence it flowed from the contract, practice or statute. The defamation claim failed for want of evidence of publication stigmatising the Claimant.

p. 8

Legal principles established

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  • Fairness of a dismissal comprises procedural and substantive fairness; presence of both renders the dismissal fair, absence of either renders it unfair.
  • The Section 41 procedure is mandatory; non-adherence renders termination unfair under Section 45.
  • Summary dismissal requires a repudiatory (fundamental) breach undermining the employer's trust and confidence.

Court orders

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  1. 1.The suit is dismissed with costs

Authorities

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Legislation

  • Employment Act, 2007Section 44(3)
  • Employment Act, 2007Section 44(4)
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 45(2)(c)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure ActSection 1B

Cases cited (4)

  • Pius Machefu Isundu -vs- Lavington Security Guards
    [2017] eKLR
  • Samuel Onderi Choi vs. Absolute Security Limited
    Cause No. 1815 of 2015, ELRC, Nairobi
  • Hunter Engineering Co v Syncrude Canada Limited
    1989, LII 129 [SCC]
  • Geluck v Rockdale Golf
    ASSA 2004 [Can. LII 145666 [ON SC]
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (suit for unfair termination and defamation arising from employment)

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, "Nanjala v Brookview Limited (Cause 405 of 2016) [2023] KEELRC 123 (KLR)", Case Analysis (2023). Cause No 405 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/123/eng@2023-01-26

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