Moses v Mini Bakeries (NBI) Limited (Cause 145 of 2015) [2023] KEELRC 572 (KLR)
The bottom line
#A Kenyan court ruled that an employee fired for taking customer money was fairly dismissed, even without a physical hearing.
What this practically means
#Executive summary
#Key legal issues
#Nature of the employment relationship
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.
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.
Substantive fairness of the summary dismissal
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.
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.
Procedural fairness - whether a physical disciplinary hearing was required
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.
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.
Reliefs
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.
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.
Legal principles established
#- 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
#- 1.A declaration that the summary dismissal of the Claimant by the Respondent was fair and lawful
- 2.The cause is dismissed in its entirety
- 3.Each party ordered to meet own costs
- Jurisdiction invoked
- Article 41 and 47 of the Constitution and Sections 41, 43, 44, 45 and 49 of the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.