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ELRCDismissedCause No E020 of 2022· [2023] KEELRC 284 (KLR)

Kenya Plantation & Agricultural Workers Union v Delmonte Kenya Limited (Cause E020 of 2022) [2023] KEELRC 284 (KLR)

Employment and Labour Relations Court
2 February 2023
OMOnesmus N Makau
2,543 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court upheld Del Monte's summary dismissal of an employee accused of soliciting bribes, confirming employers can dismiss fairly when they follow proper procedure.

What this practically means

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Executive summary

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The claimant trade union sued on behalf of its member, John Munyua Ngugi, a Lead man employed by the respondent from 27th October 2001 until his dismissal on 3rd April 2019. The union sought reinstatement or, alternatively, gratuity, twelve months' salary, leave and travelling allowances, notice pay, damages for unfair dismissal, costs and interest. The respondent defended the dismissal, alleging the grievant solicited and received a bribe of Kshs 212,000.00 to help secure a porridge supply tender, and pleaded limitation under section 90 of the Employment Act. The grievant testified that the money was a loan from his friend Henry Kamau Mwaniki, repaid under a police-station agreement, and that he recanted his office statement by affidavit. The respondent's Senior Department Head, Industrial Relations, confirmed the grievant was never convicted and was not involved in the tendering process. The court framed three issues: validity of the reason, fairness of the procedure, and entitlement to reliefs. It found the arrest and police proceedings sufficient to arouse reasonable suspicion, and held that soliciting bribes and engineering a scheme to manipulate tendering breached the Employment Act, the CBA and the Code of Conduct, justifying summary dismissal. On procedure, it was satisfied that section 41 was complied with: show cause, a disciplinary hearing with shop stewards, consideration of his defence, and an appeal dismissed by the Managing Director. All reliefs were declined, including gratuity, which CBA clause 8(h) excludes for gross misconduct. The suit was dismissed with costs on 2nd February 2023, delivered online under Covid-19 directions.

Key legal issues

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01

Validity of the reason for dismissal

Holding

The reason - soliciting and receiving money as inducement to secure a tender - was a valid and fair reason for summary dismissal.

Reasoning

The court found evidence substantiating the allegation: the grievant was arrested following a police complaint by Henry Kamau Mwaniki, from whom he had solicited and received Kshs 212,000.00, and he signed an agreement to repay the sum. The court held that these circumstances would lead any reasonable employer to genuinely conclude the employee was involved in fraudulent conduct of corruption using the company's name, violating the Employment Act, the CBA and the Code of Conduct.

p. 5
02

Fairness of the procedure followed

Holding

Section 41 of the Employment Act was complied with; the dismissal followed a fair procedure.

Reasoning

The grievant was served with a show cause letter and responded; he attended a disciplinary hearing accompanied by shop stewards of his choice; his defence was considered before dismissal; and his appeal was heard and dismissed by the Managing Director. The court was satisfied this met the requirements of section 41, including hearing and considering representations before termination.

p. 5
03

Entitlement to reliefs

Holding

None of the reliefs sought were merited since the dismissal was fair and lawful.

Reasoning

Having found both a valid reason and fair procedure, the court declined reinstatement, damages, notice pay, leave and leave travelling allowance claims (no legal basis), and gratuity (excluded under CBA clause 8(h) for gross misconduct). The claimant therefore failed to prove unfair or wrongful dismissal and the suit was dismissed with costs.

p. 6

Legal principles established

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  • An employer is justified in summarily dismissing an employee who solicits and receives bribes to manipulate tendering processes, as such conduct substantially breaches the employment contract.
  • An employee's arrest and related police proceedings may suffice to arouse reasonable suspicion justifying an employer's genuine belief in the employee's misconduct.
  • Compliance with section 41 of the Employment Act (show cause, hearing with a representative of choice, consideration of representations, and appeal) constitutes a fair procedure.

Court orders

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  1. 1.The suit is dismissed with costs

Authorities

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Legislation

  • Employment ActSection 90
  • Employment ActSection 44
  • Employment ActSection 41
  • Employment ActSection 21
  • Constitution of KenyaArticle 50
  • ELRC Procedure RulesRule 28(3)

Cases cited (3)

  • Kenfreight (EA) Ltd v Benson K. Nguti
    (2016) eKLR
  • Raymond Chepkirwa Mrisha v Civion Limited
    (2014) eKLR
  • Kennedy Maina Mirera v Barclays Bank of Kenya Ltd
    (2018) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and the Constitution (Article 50 raised by parties)

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, "Kenya Plantation & Agricultural Workers Union v Delmonte Kenya Limited (Cause E020 of 2022) [2023] KEELRC 284 (KLR)", Case Analysis (2023). Cause No E020 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/284/eng@2023-02-02

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