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ELRCDismissedCause No 145 of 2015· [2023] KEELRC 572 (KLR)

Moses v Mini Bakeries (NBI) Limited (Cause 145 of 2015) [2023] KEELRC 572 (KLR)

Employment and Labour Relations Court of Kenya
9 March 2023
4,640 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that an employee fired for taking customer money was fairly dismissed, even without a physical hearing.

What this practically means

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Executive summary

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This Employment and Labour Relations Court judgment at Nakuru, delivered by David Nderitu, J on 9th March 2023, determines a claim by David Makori Moses against Mini Bakers Limited arising from his summary dismissal on 17th February 2015. The Claimant sought one month's salary in lieu of notice, underpayments, leave pay for seven years, gratuity for six years, and compensation under Section 49(1)(c) of the Employment Act, totalling Kshs.482,264. The court framed four issues: the nature of the employment relationship, the fairness of the dismissal, entitlement to reliefs, and costs. On the first issue, the court found that the Claimant was engaged only as a turnboy from 1st September 2013 per an undisputed letter of appointment, rejecting his pleaded claims of earlier casual employment and positions as general worker, slicing supervisor, and salesperson, which his own testimony contradicted. On fairness, the court held the dismissal substantively fair because the Claimant admitted misappropriating or failing to account for Kshs.12,785 and Kshs.23,000, amounting to gross misconduct under Section 44(4)(c) and (g). Procedurally, the court held that the written exchanges - show-cause letter, response, dismissal letter, and appeal process - constituted a fair hearing, since a hearing does not of necessity imply a physical hearing and the Claimant's written admission left nothing further to be heard. All five reliefs were denied. The claim was dismissed in its entirety with each party bearing its own costs, the court exercising leniency on costs with a warning that the costs-follow-event principle would apply in future.

Key legal issues

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01

Nature of the employment relationship

Holding

The Claimant was engaged only as a turnboy from 1st September, 2013 per the letter of appointment dated 3rd September, 2013; claims of earlier casual employment, or of roles as general worker, slicing supervisor or salesperson, were unsupported and contradicted by his own testimony.

Reasoning

The Claimant's pleadings alleged engagement in 2007 as a general worker, then slicing supervisor and salesperson, but his oral testimony departed from the pleadings and he conceded prior casual employment without any supporting evidence. The Respondent produced the appointment letter, confirmation letter and employment identity card showing the position of turnboy. The contradictions undermined the Claimant's credibility, and the court accepted the documentary evidence of the Respondent.

p. 4
02

Substantive fairness of the summary dismissal

Holding

The dismissal was substantively fair; the Claimant's admitted misappropriation of or failure to account for Kshs.12,785/= and Kshs.23,000/= amounted to gross misconduct under Section 44(4)(c) and (g) of the Employment Act.

Reasoning

The Claimant collected money from customers on behalf of the Respondent and failed to account for two sums, admitting in his reply to the show-cause letter that he applied the money to personal use. He produced no evidence of permission from management. The court held that the employer had reasonable and sufficient grounds for summary dismissal, whether the conduct amounted to negligence, misappropriation, or theft under Section 44(4) of the Act.

p. 8
03

Procedural fairness - whether a physical disciplinary hearing was required

Holding

The Claimant was afforded procedural fairness through the written correspondences (show-cause letter, response, dismissal letter, appeal, and dismissal of appeal); a physical hearing was unnecessary given his written admission.

Reasoning

The court held that a hearing does not of necessity imply a physical hearing; it is an opportunity to present a defence. The Claimant admitted the misconduct in writing in response to a specific show-cause letter, and any oral testimony at a physical hearing could not override his written admission. Relying on JSC v Shollei and Jeremiah Gitau Kiereini v Capital Markets Authority, the court found the correspondence exchanges constituted a fair hearing under Sections 41, 43, 44 and 45 of the Act.

p. 8
04

Reliefs

Holding

All five reliefs claimed (notice pay, underpayments, leave pay, gratuity, and Section 49 compensation) were denied because the dismissal was fair and lawful and the claims lacked evidentiary support.

Reasoning

Having found the summary dismissal lawful, the court held no notice was due; the underpayment claim failed because the Claimant was a turnboy and was in fact overpaid per the CBA and Legal Notice; leave pay failed for lack of evidence and records showing leave taken; gratuity was not a right and the service period was under two years; and no Section 49 compensation is payable for a fair dismissal.

p. 9

Legal principles established

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  • A hearing does not of necessity imply a physical hearing; it is about an opportunity for the employee to present his defence to the allegations made against him.
  • Where an employee admits the misconduct in writing in response to a show-cause letter, the written exchanges may constitute a fair hearing.
  • Gratuity is not a right and is only payable upon agreement between employer and employee or as provided for in the contract.
  • Dishonestly taking sale proceeds for personal use amounts to gross misconduct attracting summary dismissal under Section 44(4) of the Employment Act.

Court orders

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  1. 1.A declaration that the summary dismissal of the Claimant by the Respondent was fair and lawful
  2. 2.The cause is dismissed in its entirety
  3. 3.Each party ordered to meet own costs

Authorities

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Legislation

  • Employment ActSection 49(1)(c)
  • Employment ActSections 41, 43, and 45
  • Employment ActSection 44(4)(g)
  • Employment ActSection 44(4)(c) & (g)
  • Constitution of KenyaArticles 41 and 47

Cases cited (13)

  • Rashid Jeneby V Prime Bank Limited
    (2015) eKLR
  • Sikuku Nzuvi Ngii V Gacal Merchants Ltd
    (2015) eKLR
  • Amos Kitavi Kivite V Kenya Revenue Authority
    (2020) eKLR
  • Kioko Muindi V United Aryan (EPZ) Limited
    (2022) eKLR
  • Kenya Power & Lighting Company Limited V Aggrey Lukorito Wasike
    (2017) eKLR
  • Judicial Service Commission & Another V Gladys Boss Shollei & Another
    (2012) eKLR
  • Jeremiah Gitau Kiereini V Capital Markets Authority & Another
    (2013) eKLR
  • Mary Chemweno V Kenya Pipeline Company Limited
    (2014) eKLR
  • Walter Ogal Anuro V Teachers Service Commission
    (2013) eKLR
  • Janet Nyandiko V Kenya Commercial Bank Limited
    (2017) eKLR
  • Pathfinder International Kenya Limited V Stephen Ndegwa Mwangi
    (2019) eKLR
  • Bamburi Cement LTD V Farid Aboud Mohamed
    (2016) eKLR
  • H. Young & Company EA Limited V Javan Were Mbago
    (2016) eKLR
Jurisdiction invoked
Article 41 and 47 of the Constitution and Sections 41, 43, 44, 45 and 49 of the Employment Act

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, "Moses v Mini Bakeries (NBI) Limited (Cause 145 of 2015) [2023] KEELRC 572 (KLR)", Case Analysis (2023). Cause No 145 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/572/eng@2023-03-09

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