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ELRCPartially AllowedNot stated in the judgment (ELRC Claim; related Cause No. 1439 of 2017 referenced for witness evidence adoption)· [2023] KEELRC 2584 (KLR)

Julius v Sapna Bhandary t/a Chowpaty Fast Foods (Cause 1356 of 2017) [2023] KEELRC 2584 (KLR)

Employment and Labour Relations Court
5 October 2023
5,052 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Claimant, employed as a waiter from 18th December 2012 at a monthly salary of Kshs 10,000, was summarily dismissed in February 2017 following allegations that he conspired with cashiers to defraud the Respondent of substantial sums through deletion of bills from the point-of-sale system. He claimed unfair termination, terminal benefits, twelve months' salary as compensation, service pay and a Certificate of Service. The Respondent argued it was wrongly sued, the employer being Chowpaty Fast Foods Limited, and that the dismissal was justified by fraud, desertion and rowdy conduct at the premises. The Court framed three issues: whether the wrong party was sued; whether the termination was unfair; and entitlement to reliefs. On the first, the Respondent failed to discharge the evidential burden under sections 107 and 109 of the Evidence Act of proving the alleged company's legal personality and the employment relationship, so the objection was declined. On the second, the Court found the dismissal substantively and procedurally unfair: the Respondent produced no documentation of investigations or audit findings implicating the Claimant, no police outcome was shown, and no hearing under section 41 of the Employment Act was conducted; submissions could not substitute for evidence or introduce unpleaded grounds. On reliefs, the Claimant received pay for unutilized leave limited to three years under section 90, February 2017 salary, six months' gross salary as compensation under section 49(1)(c), interest, costs, and a Certificate of Service. Service pay was denied on account of NSSF contributions under section 35(6). Judgment was entered partially in the Claimant's favour.

Key legal issues

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01

Whether the wrong party was sued

Holding

The Respondent failed to prove that Chowpaty Fast Foods Limited was a legal person and the Claimant's employer; the application to strike out was declined.

Reasoning

Sections 107 and 109 of the Evidence Act placed the burden on the Respondent to establish the incorporation of the alleged company and the employment relationship with it. No certificate of incorporation, employment contract or employment document was produced; the Claimant's job ID and NSSF statements merely read 'Chowpaty', leaving it impossible to ascertain its registration status.

p. 6
02

Whether the summary dismissal was substantively justified

Holding

The dismissal lacked substantive justification; the employer failed to prove the fraud allegation.

Reasoning

Section 43 places the burden on the employer to prove reasons for dismissal. The Respondent alleged the Claimant was involved in a fraud conspiracy but produced no investigation report, audit findings or police outcome. Submissions introducing new grounds (abscondment, abusive language) could not substitute for pleaded and proved evidence. The allegation of fraud is serious and required documentation.

p. 8
03

Whether the dismissal was procedurally fair

Holding

The termination was procedurally unfair as section 41 was not complied with.

Reasoning

Section 41 is couched in mandatory terms and requires the employer to explain the reasons and hear representations before termination. The Respondent's witness admitted no formal letter inviting the Claimant to a disciplinary hearing. The evidence did not demonstrate notification of grounds, opportunity to make representations, or a considered decision.

p. 9
04

Entitlement to reliefs

Holding

Claimant awarded unutilized leave pay (limited to three years), February 2017 salary, six months' salary as compensation, notice pay implicitly covered in compensation, and Certificate of Service; service pay denied.

Reasoning

The Respondent did not disprove the leave claim with records; section 90 limits the claim to three years. The assertion that February 2017 salary was paid was a bald assertion without proof. NSSF contributions barred service pay under section 35(6). Section 49(1)(c) compensation was set at six months considering the summary manner of dismissal, disregard of fair labour practices, length of service and lack of contribution by the Claimant.

p. 10

Legal principles established

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  • For a termination to pass the fairness test there must be both substantive justification and procedural fairness
  • Counsel's submissions cannot substitute for evidence or introduce unpleaded matters
  • The burden lies on the employer to prove the reasons for dismissal and adherence to section 41 procedure

Court orders

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  1. 1.A declaration that the Claimant's dismissal from employment was unfair, inequitable and in breach of the provisions of the Employment Act
  2. 2.Payment for unutilized leave days of Kshs 10,333.23
  3. 3.Salary for February 2017 of Kshs 10,000.00
  4. 4.Compensation for unfair termination of six months' gross salary (Kshs 60,000)
  5. 5.Interest on the terminal dues at court rates from the date of judgment until payment in full
  6. 6.The Respondent to bear the costs of the suit
  7. 7.The Respondent to issue the Claimant with a Certificate of Service

Authorities

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Legislation

  • Employment ActSections 28(4), 35, 35(6)(d), 41, 43, 44, 45(2), 49(1)(c), 51, 90
  • Evidence ActSections 107, 109 (Cap 80)
  • Constitution of KenyaArticles 159(2)(d), 48
  • Civil Procedure ActSection 1B (Chapter 21)
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (3)

  • IEBC & another v Stephen Mutinda Mule & 3 others
    [2014] eKLR
  • Adetoun Oladeji (NIG) v Nigeria Breweries PLC
    SC 91/2002
  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007

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, "Julius v Sapna Bhandary t/a Chowpaty Fast Foods (Cause 1356 of 2017) [2023] KEELRC 2584 (KLR)", Case Analysis (2023). Not stated in the judgment (ELRC Claim; related Cause No. 1439 of 2017 referenced for witness evidence adoption). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2584/eng@2023-10-05

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