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ELRCDismissedNot stated in the judgment· [2023] KEELRC 3035 (KLR)

Ndegeyo v Sukari Sacco Society Ltd (Cause 181 of 2018) [2023] KEELRC 3035 (KLR)

Employment and Labour Relations Court
29 November 2023
993 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court upheld a Sacco employee's dismissal for unauthorised cash withdrawals because the employer followed fair disciplinary procedures and had valid, honest reasons.

What this practically means

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Executive summary

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In this first-instance employment cause before the Employment and Labour Relations Court at Kisumu, the Claimant, a former employee of Sukari Sacco Society Ltd, challenged the termination of his employment, sought damages for defamation, and claimed breaches of contract covering unpaid leave, overtime, salary arrears and service pay. The termination arose from the withdrawal of cash on or around 8 December 2017 from the account of a member who was ill, funds the Sacco said the Claimant irregularly instructed a FOSA Supervisor to withdraw and hand to him. The Claimant was sent on compulsory leave, issued a show-cause letter dated 13 February 2018, responded on 26 February 2018, attended a disciplinary hearing on 7 March 2018 with the right to be accompanied, and was terminated on 25 March 2018. The Court held the Respondent substantially complied with the procedural fairness requirements of sections 35(1)(c) and 41 of the Employment Act, 2007. On substantive fairness, the Court found the Claimant's explanations vague, noted his full participation in the cash withdrawal and some level of dishonesty, and held that a reasonable employer would have terminated, finding the reasons valid and fair under sections 43 and 45. All contractual heads failed: the accrued leave period was undisclosed, overtime was excluded by contract and policy, salary arrears were not proved, and NSSF contributions barred service pay under section 35(5) and (6). The defamation claim failed for want of pleading and evidence. The Cause was dismissed with costs.

Key legal issues

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01

Procedural fairness in termination

Holding

The Respondent substantially complied with sections 35(1)(c) and 41 of the Employment Act by issuing a show-cause, receiving a response and holding a disciplinary hearing with the right to be accompanied

Reasoning

The Respondent alerted the Claimant to the allegations, invited him to respond, then invited him to a disciplinary hearing where he attended and answered written questions. Notice of termination followed. The Court held this amounted to substantial compliance with the statutory requirements of prior notice and an opportunity to make representations.

p. 2
02

Validity and fairness of reasons for termination

Holding

The termination was grounded on valid and fair reasons - the unauthorised withdrawal of cash from a sick member's account

Reasoning

The Court found the Claimant fully participated in the cash withdrawal, his explanations were vague, he failed to explain how he became aware of the misposting or why written instructions were absent, and there was some level of dishonesty. A reasonable employer would have terminated, so the Respondent could not be faulted.

p. 3
03

Breach of contract claims (leave, overtime, salary, service pay)

Holding

All heads failed for lack of evidence or contractual/statutory exclusion

Reasoning

The accrued leave period was never disclosed; overtime was contractually and policy excluded for senior staff; salary arrears were not proved; and NSSF contributions barred service pay under section 35(5) and (6). Each head failed on evidential or legal grounds.

p. 3
04

Defamation

Holding

The defamation cause of action failed because it was not pleaded and unsupported by evidence

Reasoning

Despite seeking general damages for defamation, the Claimant did not plead the cause of action as procedural law requires nor adduce any evidence supporting it. The cause of action accordingly failed.

p. 3

Legal principles established

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  • An employer need only substantially comply with the procedural fairness requirements of notice and opportunity to be heard under sections 35 and 41 of the Employment Act
  • Sections 43 and 45 of the Employment Act require the employer to prove both the validity and fairness of the reasons for termination
  • An employee contributing to NSSF is not eligible for service pay under section 35(5) and (6) of the Employment Act

Court orders

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  1. 1.The Cause is dismissed with costs

Authorities

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Legislation

  • Employment Act, 2007section 35(1)(c)
  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
  • Employment Act, 2007section 35(5) and (6)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over a labour dispute (Employment Act, 2007); specific enabling provision not cited in the judgment

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, "Ndegeyo v Sukari Sacco Society Ltd (Cause 181 of 2018) [2023] KEELRC 3035 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3035/eng@2023-11-29

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