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ELRCPartially AllowedMemorandum of Claim dated 6th June 2017 (ELRC Claim)· [2023] KEELRC 2860 (KLR)

Njuguna v VFS (Kenya) Limited (Employment and Labour Relations Cause 1055 of 2017) [2023] KEELRC 2860 (KLR)

Employment and Labour Relations Court
2 November 2023
OKOcharo Kebira
7,876 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a visa centre unfairly dismissed its employee because it botched the disciplinary process and hid CCTV footage, awarding her over Ksh. 468,000.

What this practically means

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Executive summary

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The Claimant, employed as a Submissions Officer from 20th October 2015 at a monthly salary of Ksh. 45,000, was summarily dismissed on 26th April 2017 on allegations that, without her Manager's knowledge or authorization, she removed two passports from a safe out of a bunch of five and released them to an agent before the collection date. She claimed her dismissal was procedurally and substantively unfair and discriminatory, seeking a declaration, notice pay, twelve months' compensation, house allowance and general damages for discrimination. The Respondent defended the dismissal as justified after investigations and a disciplinary hearing, asserting prior warnings and that all dues were paid. The Court framed three issues: procedural and substantive fairness, entitlement to reliefs, and costs. It found that although notification of the charges and the right of accompaniment were satisfied, the disciplinary minutes were too sketchy to demonstrate a fair hearing, requested CCTV footage was withheld without explanation, and the safe was accessible to multiple employees with a register showing different handwritings. An adverse inference was drawn from the failure to produce the footage, and the failure to call the Operations Manager diminished the Respondent's case. The Court held the dismissal both procedurally and substantively unfair, rejected the discrimination claim as unsupported, and awarded notice pay of Ksh. 45,000, house allowance of Ksh. 108,000 for 16 months, and seven months' compensation of Ksh. 315,000 under section 49(1)(c), with interest and costs to the Claimant.

Key legal issues

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01

Procedural fairness of the summary dismissal

Holding

The dismissal was procedurally unfair; notification and accompaniment were satisfied but the hearing and consideration of representations were not, and requested CCTV footage was withheld

Reasoning

The Court found the disciplinary notice satisfied the notification component and right of accompaniment. However, the minutes were too sketchy to reflect the presentation of allegations, evidence, or the Claimant's representations, and the Operations Manager's alleged testimony did not appear in them. The CCTV footage requested before the hearing was never furnished despite the Respondent asserting it was available. The Court held the Respondent failed to discharge its burden of proving procedural fairness under sections 41 and 45(2) of the Employment Act.

p. 12
02

Substantive justification of the summary dismissal

Holding

No valid and fair reason was proved; the allegation that the Claimant removed two passports was not established

Reasoning

The Respondent bore the burden of proving the reason for dismissal. The safe was accessible to all employees, the safe register showed different handwritings for the material day, the CCTV footage was withheld prompting an adverse inference, the Operations Manager was not called as a witness, and the apology message was ambiguous, with the witness inviting speculation which the Court declined. The Court concluded the Respondent failed to prove a valid and fair reason under sections 43, 45 and 47(5).

p. 13
03

Claim of discrimination

Holding

The discrimination claim failed for want of evidence

Reasoning

The Claimant alleged stigmatisation, hostility and unequal treatment after attending an event, but produced no evidence of any comparator or unequal treatment. The Court characterized the allegation as bald and rejected it.

p. 15
04

Notice pay and house allowance

Holding

One month's salary in lieu of notice awarded; unpaid house allowance of Ksh. 108,000 awarded as the salary was not proved consolidated

Reasoning

Because the summary dismissal was unfair, notice pay of Ksh. 45,000 was awarded to prevent the employer benefiting from its wrongdoing. On house allowance, the contract did not state that the Ksh. 45,000 was consolidated, and no evidence supported consolidation; the employer thus failed its statutory obligation under section 31, and 15% of salary for 16 months was computed as Ksh. 108,000.

p. 14

Legal principles established

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  • Section 41 of the Employment Act is mandatory; non-adherence renders termination unfair under section 45(2)
  • Disciplinary hearing minutes are pivotal in gauging procedural fairness and must not be sketchy or casual
  • An employer must avail to an employee documents requested (such as CCTV footage) to prepare a defence, absent justifiable reason
  • Where an employer withholds crucial evidence without explanation, an adverse inference may be drawn
  • Failure to call the most crucial witness diminishes an employer's case
  • An employer asserting a consolidated salary inclusive of house allowance must prove the consolidation from the contract

Court orders

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  1. 1.A declaration that the Claimant's summary dismissal was both procedurally and substantively unfair
  2. 2.Salary in lieu of notice Ksh. 45,000
  3. 3.Unpaid House Allowance for 16 months Ksh. 108,000
  4. 4.Compensation pursuant to section 49(1)(c) of the Employment Act, 7 months' gross salary Kshs. 315,000
  5. 5.Interest on the sums awarded at court rates from the date of judgment till full payment
  6. 6.Costs of the suit to the Claimant

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Articles 159(2)(d), 48
  • Employment Act, 2007Sections 31, 35, 41, 42(1), 43, 43(2), 44(3)-(4), 45(2), 47(5), 49(1)(c)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (11)

  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
  • Kenya Plantation & Agricultural Workers Union (KPAWU) v Finlays Tea (K) Limited
    (2022) eKLR
  • Andrew K. Tanui v Postal Corporation of Kenya
    (2014) eKLR
  • Postal Corporation of Kenya v Andrew K. Tanui
    (2019) eKLR
  • Charles Kinyua & Another v Meru Central Dairy Co-operative Union Limited
    (2015) eKLR
  • Michael Louw v Golden Arrow Bus Services
    (1999) ZALC 166
  • OL Pejeta Ranching Limited v David Wanjau Muhoro
    (2017) eKLR
  • Pamela Nelima Lutta v Mumias Sugar Co. Limited
    (2017) eKLR
  • Walter Anuro Ogal v Teachers Service Commission
    (2013) eKLR
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
  • Hema Hospital v Dr. Wilson Makongo Marwa
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution and 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, "Njuguna v VFS (Kenya) Limited (Employment and Labour Relations Cause 1055 of 2017) [2023] KEELRC 2860 (KLR)", Case Analysis (2023). Memorandum of Claim dated 6th June 2017 (ELRC Claim). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2860/eng@2023-11-02

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