Shikuku v Childcare Worldwide Kenya and East Africa (Employment and Labour Relations Cause E019 of 2020) [2023] KEELRC 3373 (KLR)
The bottom line
#A Kenyan court awarded an employee over Kshs 2.7 million after his employer dismissed him for alleged theft without holding any disciplinary hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant's summary dismissal was procedurally fair
The dismissal was procedurally unfair because the claimant was never subjected to a disciplinary process before dismissal, contrary to sections 41 and 45(2) of the Employment Act.
The claimant was suspended on 24th August 2020 and a virtual meeting scheduled for 27th August 2020 was cancelled on the day. The respondent did not deny this chronology. Before the dismissal of 15th and 16th September 2020, no disciplinary hearing took place. Section 41 requires a fair hearing, and section 45(2) requires termination in accordance with fair procedure. By failing to accord the claimant a hearing, the respondent condemned him unheard.
Whether the counterclaim for embezzled funds and loan balance was proved
The counterclaim failed because the underlying transactions were never tested in a disciplinary process and the respondent did not prove them in court.
The counterclaim arose from the same allegations of misappropriation that the claimant denied and which were never tested in a disciplinary process. Consequently, the court found the counterclaim unproved and dismissed it. Although the respondent called four witnesses, they produced no documents linking the claimant to the alleged embezzlement, and no audit report was annexed to the counterclaim.
Remedies for unfair termination
The claimant was awarded one month's notice pay, unpaid salary for August and part of September 2020, one year's leave pay and six months' compensation, less statutory deductions.
Having found the dismissal unfair and unjustified, the court awarded notice pay of Kshs 286,130; Kshs 435,798 for August and 16 days of September 2020; one year's leave for 2020; and six months' salary as compensation under section 49(1)(c), less statutory deductions. Claims for three years' leave, off-days and public holidays were not reflected in the final award, nor was the certificate of service.
Legal principles established
#- A fair disciplinary process must be accorded to an employee however obvious the employer believes the employee's guilt to be.
- Failure to accord an employee a hearing renders the termination unfair and unjustified under section 45(2) of the Employment Act.
- A counterclaim founded on allegations never tested in a disciplinary process is not proved.
Court orders
#- 1.Payment of 1 month salary in lieu of notice of Kshs 286,130
- 2.Payment of 1 1/2 months' pay for August and 16 days of September 2020 of Kshs 435,798
- 3.Payment for 1 year leave 2020 of Kshs 286,130
- 4.Compensation of 6 months' salary for unfair termination of Kshs 1,716,780
- 5.Total award of Kshs 2,724,838 less statutory deductions
- 6.Respondent to pay costs of the suit plus interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (Article 162(2) Constitution not expressly cited in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shikuku v Childcare Worldwide Kenya and East Africa (Employment and Labour Relations Cause E019 of 2020) [2023] KEELRC 3373 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3373/eng@2023-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.