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ELRCPartially AllowedNot stated in judgment· [2024] KEELRC 672 (KLR)

Chebon v Wells Fargo Limited (Cause 2295 of 2017) [2024] KEELRC 672 (KLR)

Employment and Labour Relations Court
15 March 2024
AMANNA NGIBUINI MWAURE
2,868 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a security guard Kshs 268,752 because his employer fired him without a hearing, proving you can challenge a dismissal even years later.

What this practically means

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Executive summary

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The claimant, a former employee of the respondent security company, sued for unlawful termination and malicious prosecution after he was carjacked on 7th August 2012 while escorting currency equivalent to Kshs 13,965,460 from Eldoret to Nairobi. He was charged with stealing by servant contrary to section 281 of the Penal Code in Criminal Case No. 1220 of 2012 and acquitted on 18th November 2016. He claimed his termination was without notice, without a fair hearing and malicious, and sought reinstatement-related remedies, 12 months' compensation, service pay and costs of the criminal suit. The respondent contended the claim was time barred, that termination took effect in August 2012 when it removed the claimant from the payroll, and that the costs of the criminal case were not pleaded as special damage. The court framed three issues: time bar, lawfulness of the dismissal, and entitlement to reliefs. It upheld its earlier ruling of 4th August 2022 declining to lock out the claimant, finding no termination letter ever issued, so no date from which limitation ran; the claim filed in November 2017 after the acquittal and an unanswered demand letter was timely. On the merits, the court found no disciplinary process, notice to show cause or termination notice, holding the termination failed both substantive justification and procedural fairness under sections 41 and 45 of the Employment Act. Judgment was entered for the claimant: 10 months' salary as compensation (Kshs 244,320) plus one month's salary in lieu of notice (Kshs 24,432), totalling Kshs 268,752, with costs and interest from the date of judgment. Costs of the criminal case and service pay were declined as unproven and unquantified.

Key legal issues

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01

Whether the claim is time barred

Holding

The claim was not time barred; no termination date could be fixed as no termination letter was issued or received, and the claimant acted promptly after acquittal and demand letter.

Reasoning

The court had earlier ruled on a preliminary objection on time bar and held there was no ascertainable termination date since no termination letter, suspension letter or disciplinary invitation was ever issued. The claimant was acquitted on 18th November 2016, was denied entry to the premises, wrote a demand letter dated 18th August 2017 and filed the claim on 16th November 2017 after receiving no response. The court upheld its earlier ruling and found the claim timely.

p. 5
02

Whether the employment was unlawfully dismissed

Holding

Yes; the termination lacked both substantive justification and procedural fairness.

Reasoning

The claimant was accused of theft of funds in transit but was acquitted in 2016. No disciplinary process, notice to show cause or termination notice was given, contrary to sections 41 and 45 of the Employment Act. The court held the procedure fell short of the statutory threshold and no valid reasons were given for termination.

p. 6
03

Whether the claimant is entitled to the reliefs sought

Holding

Partially; compensation of 10 months' salary and one month's pay in lieu of notice awarded, but costs of the criminal case and service pay declined for want of proof.

Reasoning

Having found unfair termination, the court awarded 10 months' salary equivalent as compensation (Kshs 244,320) plus one month's salary in lieu of notice (Kshs 24,432). The claims for costs of the criminal suit and service pay failed because neither was proved nor quantified, applying the requirement that special damages must be specifically pleaded and proved.

p. 6

Legal principles established

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  • An employer must take the employee through the mandatory disciplinary process under section 41 of the Employment Act before termination; failure renders termination procedurally unfair and without valid reason.

Court orders

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  1. 1.Judgment entered in favour of the claimant
  2. 2.Award of 10 months' compensation in salary equivalent amounting to Kshs 244,320
  3. 3.Award of one month's salary in lieu of notice of Kshs 24,432
  4. 4.Total award of Kshs 268,752 plus costs of the suit
  5. 5.Interest at court rates from date of judgment till full payment

Authorities

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Legislation

  • Penal Codesection 281
  • Employment Actsection 45(1)
  • Employment Actsection 41(1)
  • Employment Actsection 35(1)(c)
  • Employment Actsection 40
  • Employment Actsection 42(1)
  • Employment Actsection 90
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Actsection 1B

Cases cited (3)

  • Cyrus Maina Njoroge v The Attorney-General & another
    [2017] eKLR
  • Registered Trustees of the Presbyterian Church of East Africa & Another v Ruth Gathoni Ngotho-Kariuki
    [2017] eKLR
  • David Gichana Omuya vs Mombasa Maize Millers Limited
    (2014) eKLR
Jurisdiction invoked
Employment and labour relations dispute before the Employment and Labour Relations Court (parties' pleadings; Employment Act provisions applied)

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, "Chebon v Wells Fargo Limited (Cause 2295 of 2017) [2024] KEELRC 672 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/672/eng@2024-03-15

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