Muema v Kenga Equitorial Hotels Limited t/a Mombasa Continental Resort (Cause E007 of 2022) [2023] KEELRC 1236 (KLR)

The respondent alleged the claimant fraudulently received cheques of Ksh. 503,873 and Ksh. 102,045 contrary to company policy. The court noted that issuing personal cheques to a bank agent in the finance department is common practice, so the allegations called for evidence and, more fundamentally, the claimant was never accorded a hearing as mandated by Section 41 before termination. Failure to follow the mandatory provisions rendered the termination unlawful and unfair under Section 45.

Although termination was procedurally unfair, the court in assessing compensation considered the claimant's work record under Section 45(5): he had received a warning during employment which he admitted, and his terminal dues were paid immediately upon termination. These factors justified the reduced award of one month's salary rather than the Ksh. 1,980,000 claimed.

A defamation claim must establish a defamatory statement published or caused to be published by the respondent referring to the claimant, with particulars pleaded with precision to allow a fair defence. From the claimant's case, only the EACC call regarding Homa Bay County cheques and the police escort from premises emerged; the EACC call was part of its investigative mandate and the police presence was not linked to any defamatory publication. The claim therefore failed.

For the completed year 2020 the respondent's tabulation of untaken leave was fair as untaken leave is payable on basic salary. For 2021, leave pay due is prorated for months worked under Section 28. The respondent also offered one month's notice pay of Ksh. 165,000, which the court allowed, while noting the claimant offered no labour after 23rd October 2021.