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ELRCPartially AllowedCause No E008 of 2023· [2023] KEELRC 2348 (KLR)

Ngolo v Western Seed Company Ltd (Cause E008 of 2023) [2023] KEELRC 2348 (KLR)

Employment and Labour Relations Court
28 September 2023
2,196 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that taking away an employee's duties and company property amounts to dismissal, and employers must raise accusations with workers before firing them.

What this practically means

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Executive summary

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The Claimant, a Sales Representative employed by the Respondent from 2009 (with a break) until November 2019, sued alleging that following a road accident on 10th November 2019 involving the Respondent's vehicle KCT 335H, he was directed to hand over all company property and was orally dismissed. The Respondent denied dismissing him, asserting he absconded duty and was paid his dues. The court framed one issue: whether the employment was unfairly terminated or the Claimant deserted duty. It found that the directions to hand over tools of trade and the reassignment of his subordinates on 19th November 2019 constituted dismissal. The Respondent's allegations of dishonesty about the accident, lack of injuries and incompetence were never raised with the Claimant before termination and could not justify it, contrary to sections 41 and 43 of the Employment Act. The alleged meeting of 16th December 2019 was unproved. On remedies, the court awarded salary for 19 days worked in November 2019 (Ksh.34,834) because the employer failed to prove payment under section 10(7), one month's pay in lieu of notice (Ksh.55,000), and six months' salary as compensation for unfair termination (Ksh.330,000) under section 49(4), plus unpaid gratuity. Severance pay, future salaries and statutory deductions, the car ownership plan, car-hire fees and the guaranteed loan claim were all declined for want of proof or legal foundation. Costs were awarded to the Claimant with interest from the date of judgment. Total monetary award: Ksh.419,834 plus gratuity.

Key legal issues

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01

Whether the Claimant was dismissed or deserted duty

Holding

The Claimant was dismissed on the day he was directed to hand over company property and his subordinates were redirected to report elsewhere

Reasoning

The Respondent directed the Claimant to return all company property and simultaneously instructed his subordinates to report to another manager. The court held this conduct constituted dismissal, whether or not the Claimant was expressly barred from the premises. The desertion allegation was incompatible with the Respondent's late-raised complaints and the meeting of 16th December 2019 was unproved.

p. 5
02

Whether the termination was unfair

Holding

Yes - the reasons were not raised with the Claimant and he was given no opportunity to defend himself

Reasoning

Under sections 41 and 43 of the Employment Act, the employer must prove valid reasons and subject them to the employee before termination. The Respondent's claims of dishonesty about the accident, non-existent injuries and incompetence surfaced only in submissions and were never put to the Claimant. Compensation was then assessed at six months under section 49(4).

p. 4
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Entitlement to remedies

Holding

November salary for 19 days, one month's notice pay, six months' compensation and unpaid gratuity awarded; other heads declined

Reasoning

The employer produced no evidence of payment of salary or gratuity, contrary to section 10(7) which places the burden of proving contractual terms and payments on the employer. Severance pay was unavailable absent redundancy; futuristic claims for remaining years of service, COP, car-hire fees and the guaranteed loan failed for want of legal or contractual foundation and proof.

p. 5

Legal principles established

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  • Reasons for termination must be proved and raised with the employee who must be given an opportunity to defend himself (ss. 41 and 43 Employment Act)
  • Allegations not raised with the employee before termination cannot justify the termination
  • Burden on employer to prove payment of salary under s.10(7) Employment Act

Court orders

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  1. 1.Salary for 19 days worked in November 2019 – Ksh. 34,834
  2. 2.Pay in lieu of notice (one month) – Ksh. 55,000
  3. 3.Compensation for unfair termination (6 months' salary) – Ksh. 330,000
  4. 4.Gratuity not paid for any year worked
  5. 5.Respondent to pay Claimant's costs
  6. 6.Interest at court rates from date of judgment until payment in full

Authorities

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Legislation

  • Employment ActSections 41, 43, 49(4), 10(7)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance memorandum of claim)

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, "Ngolo v Western Seed Company Ltd (Cause E008 of 2023) [2023] KEELRC 2348 (KLR)", Case Analysis (2023). Cause No E008 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2348/eng@2023-09-28

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