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ELRCDismissedNot stated in the judgment as provided· [2023] KEELRC 2898 (KLR)

Nyarigu v Multichoice Kenya Limited (Cause 1552 of 2018) [2023] KEELRC 2898 (KLR)

Employment and Labour Relations Court
15 November 2023
NMNzioki wa Makau
3,810 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed an employee's wrongful termination claim because he got a fair hearing and his employer had valid reasons for dismissal.

What this practically means

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Executive summary

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The Claimant, formerly employed by the Respondent Corporation as a Customer Service Representative and later Quality Assurance Representative, sued for wrongful, unlawful and malicious termination. He was dismissed by letter dated 14th June 2018 after disciplinary proceedings arising from a Show Cause Notice alleging that between August and October 2016 he received Kshs. 22,240/- from a customer, Emmanuel Sagada, and sent Kshs. 14,400/- to a colleague, Farouk Athman, who posted manual credit notes to the customer's account, causing the company a loss of Kshs. 16,760/-. The Claimant contended the Show Cause Notice lacked particulars, came immediately after his promotion, and that his response was not considered. He sought reinstatement or, in the alternative, notice pay, twelve months' compensation, housing allowance, leave pay, overtime, severance, pro-rata bonus, costs and a certificate of service. The Respondent maintained the dismissal was for valid reasons of gross misconduct under section 44(4)(g) of the Employment Act and followed a procedurally fair hearing, supported by Deloitte investigations. The Court found the Claimant was accorded his section 41 rights, confirmed he had sufficient time and was ready to proceed, and did not protest the panel's composition. On substance, the Court held the transactions were improper conduct justifying dismissal notwithstanding his recent promotion, and that his salary was consolidated, defeating the housing allowance claim. The claim was dismissed with no order as to costs, dated and delivered at Nairobi on 15th November 2023.

Key legal issues

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01

Procedural fairness of the disciplinary process and dismissal

Holding

The dismissal was procedurally fair; the Claimant was given a show cause letter, sufficient time, was aware of his right to be accompanied, and confirmed he was ready to proceed

Reasoning

The Court found the Claimant attended the disciplinary hearing and confirmed he was ready to proceed; he did not go with an employee of his choice nor protest the panel's composition. He was heard and his representations considered. The three days to respond matched clause 14.1.6 of the HR Policy. Allegations of bias and malice were unpleaded and thus disregarded.

p. 6
02

Substantive fairness - valid and fair reason for termination

Holding

The reason for termination, namely the Claimant's conduct in receiving money from a customer and sending money to a colleague who made unearned manual credit adjustments causing loss of revenue, was valid and fair, amounting to gross misconduct under section 44(4)(g)

Reasoning

The Claimant could not explain why he received money from customer Sagada and sent money to Farouk Athman, who then posted manual credit notes to Sagada's account, depriving the Respondent of revenue. The Court held such conduct was improper and no bar existed to disciplining him despite his recent promotion.

p. 6
03

Claim for unpaid housing allowance

Holding

Dismissed; the salary was consolidated and inclusive of allowances and the Claimant never raised the grievance during employment

Reasoning

The Court found the intention of the parties was that the gross salary was inclusive of allowances even though not expressly stated as consolidated. The Claimant never demanded house allowance during his service, and to claim it in the suit was an afterthought.

p. 6

Legal principles established

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  • Parties are bound by their pleadings and evidence at variance with the pleadings must be disregarded
  • An employee granted the section 41 right to a fair hearing cannot have a procedurally fair summary dismissal reversed

Court orders

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  1. 1.The Claimant's Claim is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 44
  • Employment Actsection 44(4)(g)
  • Employment Actsection 45
  • Employment Actsection 45(2)(b)(ii)
  • Employment Actsection 49
  • Employment Actsection 40(1)(g)
  • Employment Actsection 90

Cases cited (5)

  • Elinathan G Kairu v Nakumatt Holdings Limited
    [2017] eKLR
  • Wilson Nderitu v Nakumatt Holdings Limited
    [2017] eKLR
  • Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others
    [2014] eKLR
  • Trevar Marambe v For You Chinese Restaurant
    [2021] eKLR
  • Nathan Mukewa v Alupe University College
    [2022] eKLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over employment and labour relations claims

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, "Nyarigu v Multichoice Kenya Limited (Cause 1552 of 2018) [2023] KEELRC 2898 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2898/eng@2023-11-15

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