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ELRCPartially AllowedNot stated in judgment

Ngoge v Ponders Limited (Cause 210 of 2017) [2024] KEELRC 266 (KLR)

Employment and Labour Relations Court
9 February 2024
AJABUODHA NELSON JORUM
1,171 words in judgment
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The bottom line

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A Kenyan employer who fires a worker over theft accusations without charges or a hearing must pay eight months' salary in compensation.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from January 2015 as a delivery person earning Ksh 14,500/= monthly, sued for unfair and unlawful termination. He pleaded that on 9th June 2016 he and three colleagues were accused of theft of the Respondent's goods, arrested, detained at Ruaraka Police Station and released on cash bail on 11th June 2016. He alleged that on release he was summoned to the Respondent's office and, in the presence of the OCS and DOCS Ruaraka Police Station, coerced into signing a document admitting the theft, after which his employment was terminated without a hearing, without a termination letter, and without payment of 11 days worked in June 2016. The Respondent neither entered appearance nor participated in the proceedings. The Claimant testified and relied on sections 43, 41, 45, 49, 50 and 18 of the Employment Act and on the Court of Appeal decision in Pius Machafu-Isindu v Lavington Security Guards Limited. The court framed two issues: whether the termination was unfair, and whether the reliefs were payable. Holding that an employer must satisfy both the substantive and procedural tests, and noting the absence of criminal proceedings and of any defence, the court found the termination unfair. It awarded Ksh 121,317/=, comprising salary for 11 days worked, one month's salary in lieu of notice, compensation of eight months' salary for the unfair termination, and unpaid leave for 2015. Judgment was delivered at Nairobi on 9th February 2024 by Abuodha Nelson Jorum, Judge.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Claimant was unfairly terminated
  2. 2.Whether the Claimant is entitled to the reliefs sought

Key legal issues

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01

Whether the termination was substantively and procedurally unfair

Holding

The termination was unfair; the Respondent proved no valid reason (no criminal proceedings followed the theft allegations) and no hearing was conducted, contrary to sections 43, 41 and 45 of the Employment Act.

Reasoning

The employer alleged theft but never preferred criminal charges against the Claimant and did not participate in proceedings to justify the termination. The Claimant testified he was coerced into signing an admission and was never given a hearing or a termination letter. In the absence of any contrary evidence, the court accepted the Claimant's account and found there was neither a valid reason nor procedural fairness.

p. 3
02

Whether the Claimant is entitled to the reliefs sought

Holding

The reliefs were justified under section 49 of the Employment Act; the court awarded 8 months' salary as compensation plus accrued dues totalling Ksh 121,317/=.

Reasoning

The Respondent, though served, never defended the claim. Considering the length of service of about one and a half years, the arrest and detention of the Claimant without prosecution, and the failure to defend, the court held that eight months' salary would adequately compensate the Claimant, together with salary for days worked, salary in lieu of notice and unpaid leave.

p. 3

Legal principles established

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  • An employer must satisfy both the substantive and procedural tests before terminating employment; failure to demonstrate a valid and fair reason renders the termination unfair
  • Where a respondent fails to enter appearance or defend the claim, the claimant's uncontroverted evidence may be accepted if it proves the claim

Court orders

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  1. 1.Salary for June 2016, 11 days worked - Ksh 5,317/=.
  2. 2.One month's salary in lieu of notice - Ksh 14,500/=.
  3. 3.Compensation for the unlawful termination at 8 months - Ksh 116,000/=.
  4. 4.Unpaid leave for 2015 - Ksh 14,500/=.
  5. 5.Total award of Ksh 121,317/=.
  6. 6.It is so ordered

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AJ
majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination claim)

Relief refused

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Terminal dues amounting to Ksh 208,317/= as pleaded

The court awarded only Ksh 121,317/=, a lesser amount than claimed

p. 3

Costs

Not expressly addressed in the final orders

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Respondent was bound to adhere to two tests before terminating the services of the Claimant which is the substantive test and procedural test.
p. 3Substantive and procedural fairness in termination
The Court therefore has no reason to disbelieve the account of events as per the claimant and therefore proceeds to agree that there was no valid reason since no criminal proceedings were preferred against the Claimant over the allegations of theft.
p. 3Uncontroverted evidence and absence of valid reason
In the circumstances an award of eight months’ salary would adequately compensate the claimant on account of unfair termination.
p. 3Quantum of compensation
It is so ordered.
p. 4Final orders / disposition

Issues in the judgment

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material

Internal arithmetic inconsistency in the award: the items listed (5,317 + 14,500 + 116,000 + 14,500) total Ksh 150,317/=, but the judgment states the total as Ksh 121,317/=; also the pleaded terminal dues of Ksh 208,317/= differ from the awarded total

minor

The prayer for a certificate of service was neither expressly granted nor refused in the final orders

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, "Ngoge v Ponders Limited (Cause 210 of 2017) [2024] KEELRC 266 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/266/eng@2024-02-09

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