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ELRCPartially AllowedELRC Appeal (Mombasa) arising from Mombasa CMELRC No. 684 of 2019· [2023] KEELRC 3078 (KLR)

K B Sanghani & Sons v Achola (Appeal E074 of 2023) [2023] KEELRC 3078 (KLR)

Employment and Labour Relations Court
16 November 2023
4,514 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~18 min to read original · ~4 min brief

The bottom line

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An employer won its appeal because an employee who caused nearly Ksh. 20 million in fuel losses can be made to pay, even without criminal charges.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Mombasa against the trial judgment in Mombasa CMELRC No. 684 of 2019 (26 July 2023), which found unfair termination and awarded the respondent, a site supervisor, Ksh. 1,805,699 with costs, and dismissed the appellant's counterclaim. The appellant raised nine grounds attacking the finding on termination, the awards for food allowances, overtime, rest days and public holidays, the 12 months' compensation, and the dismissal of its counterclaim for fuel losses of Ksh. 19,931,010 established by forensic audit. The court, as a first appellate court, re-evaluated the record. It held the respondent's desertion narrative was negatived by the employer's own directions and payments for May and June 2019; without notice terminating employment, termination occurred on 6 June 2019 as stated by the respondent. The employer had a substantive reason for summary dismissal (refusal to obey lawful instructions on fuel accountability) but failed procedurally, so termination was unfair for want of due process; however, given the respondent's culpability under Section 45(5), compensation was reduced to zero. Notice pay was reduced to Ksh. 7,000; the claims for food allowances, overtime, two weekly rest days and public holidays all failed for lack of particulars or legal foundation. The counterclaim was allowed in full, the court holding that losses caused by an employee's careless performance of duties are recoverable in employment proceedings without resort to criminal or debt-recovery mechanisms. The trial judgment was set aside and the appeal partially succeeded, with each party bearing its own costs.

Key legal issues

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01

Mode and date of termination of employment

Holding

The appellant's desertion narrative was negatived by its own directions and payments in May and June 2019; with no notice terminating employment, termination occurred on 6 June 2019 as stated by the respondent, but without due process

Reasoning

The employer asserted the respondent deserted duty after leave, yet concurrently directed him to account for fuel variances and paid him for May and June 2019, which could not arise outside employment. No written notice of termination or notice to the labour officer under Section 18(4) was issued, so the employer did not complete the termination circuit.

p. 5
02

Substantive justification versus procedural fairness

Holding

There was a valid substantive reason (refusal to obey lawful instructions) but termination was unfair for want of procedural justice; yet compensation must reflect employee culpability, so zero compensation was awarded

Reasoning

The respondent refused lawful instructions to render account on fuel use, amounting to gross misconduct under Section 44(4). However, no notice of dismissal was issued, a lapse in due process. Under Section 45(5), compensation must consider the employee's conduct and culpability; rewarding him would reward gross misconduct.

p. 6
03

Remedies: notice pay, food allowances, overtime, rest days, public holidays

Holding

Notice pay reduced to Ksh. 7,000 to account for 24 days already paid; food allowances and public holiday claims failed for want of particulars; overtime failed on the all-inclusive wage; two rest days claim has no legal foundation under Section 27

Reasoning

Wages for May and June 2019 were paid, so notice pay for 6 days only (Ksh. 7,000). The food allowance contract clause excluded leave and rest days and the respondent failed to particularise 197 days worked. The Ksh. 35,000 wage was consolidated to cover agreed 12-hour days, and Section 27(2) provides one rest day per week.

p. 6
04

The counterclaim for fuel losses of Ksh. 19,931,010

Holding

Allowed; the employer may recover losses caused by an employee's careless performance of duties in the employment forum without pursuing criminal or debt proceedings

Reasoning

A forensic audit revealed fuel losses of Ksh. 19,931,010 which the respondent failed to render account for. The option of criminal procedures or debt recovery did not preclude recovery within employment; the respondent did not materially challenge the counterclaim nor give representations, losing his opportunity to clear himself.

p. 8

Legal principles established

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  • An employer cannot simply plead abandonment of duty; it must take reasonable steps to bring an absent employee to account and formally terminate the contract
  • Where there is no notice terminating employment, the date of termination is as stated by the employee
  • An employer's losses caused by an employee's careless performance of allocated duties are recoverable from the employee without recourse to criminal proceedings
  • Costs in employment claims are discretionary and reasons must be given

Court orders

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  1. 1.The judgment in Mombasa CMELRC No. 684 of 2019 is set aside
  2. 2.Compensation for unfair termination awarded at zero (0)
  3. 3.Award of notice pay reduced to Ksh. 7,000
  4. 4.Certificate of Service confirmed
  5. 5.Counterclaim found with merit; judgment entered for the appellant against the respondent for fuel loss at Ksh. 19,931,010
  6. 6.The awards shall be offset from whichever is higher
  7. 7.Each party to bear own costs

Authorities

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Legislation

  • Employment ActSections 17, 18(4), 19, 27, 27(2), 35, 36, 41, 43, 44(4), 44(4)(a), 45(5), 47(5), 49, 51
  • Evidence ActSection 107
  • Employment and Labour Relations Court Act, 2011Section 12(4)
  • Wage Orders52 hours each week over 6 days (referred to in submissions)

Cases cited (10)

  • Wilson Mudogo Mulima v Worldwide Movers (K) Limited
    [2014] eKLR
  • K B Sanghani & Sons v Peter Idewa Papa
    ELRC Appeal No. 62 of 2021
  • Catherine Musembi Mbuthia v Perfect Touch Drycleaners Limited
    [2020] eKLR
  • Rogelio Ole Maradiaga v General Cargo Services Limited
    [2016] eKLR
  • Reef Hotel Limited v Josephine Chivatsi
    [2021] eKLR
  • Milano Electronics Limited v Dickson Nyasi Muhaso
    [2021] eKLR
  • Abigael Jepkosgei Yator & another v China Hanan International Co. Limited
    [2018] eKLR
  • Ayub Kombe Ziro v Umoja Rubber Products Limited
    [2022] eKLR
  • Kenya Power & Lighting Company Limited v Aggrey Lukorito Wasike
    [2017] eKLR
  • Matsesho v Newton
    (Cause 9 of 2019) [2022] KEELRC 1554 (KLR) (29 July 2022) (Judgment)
On appeal from
Mombasa CMELRC
CMELRC No. 684 of 2019
Jurisdiction invoked
First appeal under the Employment and Labour Relations Court Act; Section 12(4) of the Employment and Labour Relations Court Act, 2011 invoked on costs

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, "K B Sanghani & Sons v Achola (Appeal E074 of 2023) [2023] KEELRC 3078 (KLR)", Case Analysis (2023). ELRC Appeal (Mombasa) arising from Mombasa CMELRC No. 684 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3078/eng@2023-11-16

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