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ELRCPartially AllowedCause No. 1266 of 2017 (consolidated with Cause No. 1267 of 2017)· [2023] KEELRC 1889 (KLR)

Mukundi & 3 others v South Cape Investment Limited & 2 others (Cause 1266 & 1267 of 2017 (Consolidated)) [2023] KEELRC 1889 (KLR)

Employment and Labour Relations Court
27 July 2023
MNMathews N. Nduma
2,772 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Four Kenyan casino employees won over Kshs 1.6 million after their employer failed to prove valid reasons for firing them.

What this practically means

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Executive summary

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Four casino employees of Cape Investment Limited, acting in person and consolidated in Causes No. 1266 and 1267 of 2017, challenged their summary dismissals in 2017 after long service (9 to 11 years). They testified, through the 1st claimant Joyce Mukundi, that management had instructed them to secretly remit daily cash from live games and slot machines to the cashier to evade Betting Control and Licensing Board detection, and that after they joined KUDHEIHA and protested the practice, the Chief Operations Officer used the scheme to frame and dismiss them for theft without notice to show cause or a hearing. The respondent's sole witness, General Manager Michael Muthui, conceded he had no personal knowledge of the events, having been based in Nanyuki, and relied on CCTV allegations of gross misconduct; his evidence was rightly treated as hearsay. The court found the respondent failed to prove a valid reason under Section 43 and breached Sections 36, 41 and 45 on procedure, and that the claimants discharged their burden under Section 47(5) by demonstrating victimisation for resisting an unlawful practice and for union membership. The court awarded notice pay, untaken leave pay and compensation of 10 months' salary each (8 months for Purity Njeru) under Section 49(1)(c) and (4), with interest and costs. The claim for house allowance was dismissed for lack of proof that salaries were not consolidated.

Key legal issues

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01

Whether the summary dismissals were for a valid reason and after a fair process

Holding

The dismissals were substantively and procedurally unfair in violation of Sections 36, 41, 43 and 45 of the Employment Act; no valid reason was proved and no fair hearing was accorded

Reasoning

The respondent's sole witness had no personal knowledge of the events, was based in Nanyuki during the relevant period, and the evidence on the alleged theft was therefore hearsay. The claimants testified they were instructed by management to secretly remit cash to evade the Government Inspector and were victimised after joining the union. They were not given notices to show cause or a hearing before dismissal.

p. 5
02

Entitlement to terminal benefits and compensation

Holding

Claimants proved non-payment of notice, untaken leave and unremitted NSSF dues, and were awarded compensation of 10 months' salary each (8 months for Purity Njeru) under Section 49(1)(c) and (4)

Reasoning

The court considered long service of 11 and 9 years without adverse records, the victimisation for disobeying an unlawful employer practice and for union membership, the sudden loss of employment without notice or terminal benefits, and the varied salaries earned.

p. 5

Legal principles established

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  • An employer must prove a valid reason for summary dismissal under Section 43(1) and (2) of the Employment Act
  • An employee who demonstrates victimisation for protesting an unlawful practice or for union membership discharges the burden under Section 47(5)

Court orders

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  1. 1.Kshs.703,847.00 awarded to Joyce Njeri Mukundi (notice Kshs.61,561; untaken leave Kshs.26,676; compensation Kshs.615,610)
  2. 2.Kshs.219,495.50 awarded to Purity Njeru (notice Kshs.22,785; untaken leave Kshs.14,430.50; compensation Kshs.182,280)
  3. 3.Kshs.378,431.90 awarded to Elizabeth Chege (notice Kshs.33,099; untaken leave Kshs.14,342.90; compensation Kshs.330,990)
  4. 4.Kshs.344,218.70 awarded to Irene Ogol (notice Kshs.29,589; untaken leave Kshs.18,739.70; compensation Kshs.295,890)
  5. 5.Interest at Court rates from date of judgment till payment in full
  6. 6.Costs of the suit to each of the claimants
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 36, 41, 43, 45, 47(5), 49(1)(c) and (4))

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, "Mukundi & 3 others v South Cape Investment Limited & 2 others (Cause 1266 & 1267 of 2017 (Consolidated)) [2023] KEELRC 1889 (KLR)", Case Analysis (2023). Cause No. 1266 of 2017 (consolidated with Cause No. 1267 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1889/eng@2023-07-27

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