Ng’ang’a v Rubis Energy Kenya PLC Formerly Kenol Kobil Limited (Formerly KENOL KOBIL LIMITED) (Cause 1296 of 2017) [2023] KEELRC 2381 (KLR)
The bottom line
#Kenya's Employment Court upheld Kenol Kobil's summary dismissal of a senior manager over conflict of interest, but awarded him unpaid salary and leave dues.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was procedurally fair under Sections 41 and 44 of the Employment Act
On the two main findings (conflict of interest through Super Vision Enterprises and Plata Investment), the dismissal was procedurally fair and substantively justified; however, the third and fourth allegations of fraud were unproved and the claimant was denied access to documents
The claimant admitted incorporating Super Vision Enterprises while employed and bound by the COI policy executed on 15 April 2009. KRA PIN and identity card details tied him to both companies. Yet the respondent withheld the documents he requested and the auditor did not attend the hearing, so the fraud allegations failed. Cumulatively, the dismissal on the proved charges was justified and followed due process.
Whether the allegations of fraudulent financial transactions and credit note allocations were proved
The third and fourth allegations were not materially proved and ought not to have been applied against the claimant
The auditor testified he never contacted the claimant with audit questions, submitted an undated report before the claimant saw it, and did not attend the disciplinary hearing so the claimant could not cross-examine him. No audit report was issued to the claimant despite requests, and the HR witness conceded she could not confirm the claimant had access to the documents.
Whether severance pay and other dues were payable
Severance pay refused; salary for June 2017, 45 leave days and a certificate of service awarded, with set-off against what the claimant owes
The redundancy/cost-cutting narrative lacked foundation since the dismissal was justified gross misconduct. Employment ended on 21 June 2017 so pro-rata salary of Ksh. 292,600 is due; 45 leave days equalling Ksh. 627,000 are due under Section 28; a certificate of service is a statutory entitlement under Section 51, subject to clearance on the vehicle loan.
Legal principles established
#- Summary dismissal is the harshest sanction and the employee's right to a hearing under Sections 44 and 41 of the Employment Act must be secured, including hearing and considering representations under Section 41(2)
- Section 41 requires notification, a hearing and consideration of the employee's representations before termination; absence of any one obliterates fairness
- An employer may summarily dismiss an employee who fundamentally breaches his contractual obligations under Section 44(3) of the Employment Act
- Breach of a conflict of interest policy by a senior employee operating a competitor's business amounts to gross misconduct justifying summary dismissal
- Leave days are a statutory right under Section 28 of the Employment Act
Court orders
#- 1.Claimant to be paid salary for June 2017 at Ksh. 292,600
- 2.Claimant to be paid 45 leave days at Ksh. 627,000
- 3.Certificate of Service to issue in terms of Section 51 of the Employment Act, 2007
- 4.Dues payable to the claimant upon his clearance of the vehicle loan/mortgage agreement terms
- 5.Each party to bear own costs
- 6.The file to be returned to ELRC Nairobi Registry
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claim for unfair termination and employment dues)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ng’ang’a v Rubis Energy Kenya PLC Formerly Kenol Kobil Limited (Formerly KENOL KOBIL LIMITED) (Cause 1296 of 2017) [2023] KEELRC 2381 (KLR)", Case Analysis (2023). Cause No 1296 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2381/eng@2023-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.