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ELRCDismissedCause No E041 of 2023· [2024] KEELRC 913 (KLR)

Masha v Kenya Ports Authority (Cause E041 of 2023) [2024] KEELRC 913 (KLR)

Employment and Labour Relations Court
18 April 2024
2,821 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenya Ports Authority technician who lent his vehicle to help steal copper cables lost his unfair dismissal case because being an accomplice justified firing him.

What this practically means

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Executive summary

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The claimant, a technician employed by Kenya Ports Authority since 2002, sued for unfair termination following his summary dismissal after the vandalism and theft of copper cables at the Mombasa port on 25 August 2021. He and three colleagues were arrested; he was not charged in court but gave information to the police and became a prosecution witness. He was suspended on 16 November 2021, required to show cause, replied admitting he had lent his leased motor vehicle to a colleague to move a cable, attended a disciplinary hearing in July 2022 accompanied by a union representative, and was dismissed, with an appeal lodged. He sought notice pay of Ksh.147,447, twelve months' compensation of Ksh.1,769,346, a certificate of service and costs, arguing lack of notice, a panel that doubled as prosecutor and judge, and violation of Article 50 and section 41 of the Employment Act. The respondent maintained the dismissal was for gross misconduct under section 44(4)(f) and (g), the claimant being an accomplice. Applying the genuine-belief test in section 43(2) and authorities including Kenya Power & Lighting Co Ltd v Aggrey Lukorito Wasike and Matsesho v Newton, the court held the dismissal was for a valid and justified reason and procedurally fair; the claimant could not rely on his non-prosecution. The claim was dismissed with costs to the respondent, with the certificate of service to issue upon clearance, including payment of rent for the KPA house.

Key legal issues

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01

Whether the summary dismissal was for a valid and justified reason

Holding

Dismissal was justified. The claimant admitted facilitating the theft of copper cables by allowing his motor vehicle to be used, and section 44(4)(f) and (g) of the Employment Act permits summary dismissal for criminal acts against the employer's property or reasonable suspicion thereof, read with section 43(2)'s genuine-belief test.

Reasoning

The court found the employment relationship uncontested and the claimant's admission of facilitating the theft decisive. Relying on section 44(4)(f) and (g) and section 43(2) of the Employment Act, and authorities including Kenya Power & Lighting Co Ltd v Aggrey Lukorito Wasike and Matsesho v Newton, the court held the employer only needed to show a genuine and reasonable belief in the criminal conduct; failure to charge the claimant criminally did not bar dismissal.

p. 5
02

Whether the disciplinary process complied with procedural fairness (section 41)

Holding

Procedural fairness was satisfied: the claimant was suspended, required to show cause, replied, attended a disciplinary hearing accompanied by a union representative of his choice, and pursued an appeal.

Reasoning

The court noted the claimant was notified of the misconduct, given the opportunity to respond, and attended a disciplinary hearing accompanied by a person of his choice, leading to summary dismissal. The procedure under section 41 was therefore met even though the sanction was summary dismissal for gross misconduct.

p. 5
03

Whether the certificate of service should issue

Holding

The certificate will issue only upon clearance with all relevant departments, including payment of rent for the KPA house at Shimanzi Staff Quarters

Reasoning

The court accepted the respondent's evidence that the claimant occupied a KPA house at a monthly rent of Ksh.5,900 and had not cleared. Clearing with all departments was treated as an established best practice precedent to issuance of the certificate of service.

p. 6

Legal principles established

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  • Where an employer genuinely believes a reason for termination exists - being commission of a criminal act threatening the employer's property - termination is justified
  • An accomplice to theft of the employer's property cannot defend unfair termination on the ground that he was not charged in court
  • An employee must clear with all relevant departments before issuance of a Certificate of Service

Court orders

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  1. 1.The claim is found without merit and is dismissed
  2. 2.Costs to the respondent
  3. 3.Upon clearance, the claimant is to be issued with a Certificate of Service

Authorities

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Legislation

  • Employment Act, 2007section 44(4)(f) and (g)
  • Employment Act, 2007section 43 and 43(2)
  • Employment Act, 2007section 45
  • Employment Act, 2007section 41
  • Constitution of Kenya, 2010Article 50

Cases cited (10)

  • Frederick Saundu v Principal Namanga Mixed Secondary School & two others
  • Samson Ole Kisirkoi v Maasai Mara University & 3 others
    [2018] eKLR
  • Cooperative Bank of Kenya Limited v BIFU
    [2017] eKLR
  • Thomas Sila Nzivo v Bamburi Cement Limited
    [2014] eKLR
  • Diamond Industries Limited v Mwale
    ELRCA No. E028 of 2022
  • 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)
  • Titus Wanyonyi v Comet Health Care Limited
    [2016] eKLR
  • Kenya Union of Commercial Food and Allied Workers v British American Tobacco (K) Limited
    [2018] eKLR
  • Christian Samba Obath and Fossil Fuels Limited
    Cause No. 567 of 2015 (Mombasa)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 44 and 45) - first-instance unfair termination claim

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, "Masha v Kenya Ports Authority (Cause E041 of 2023) [2024] KEELRC 913 (KLR)", Case Analysis (2024). Cause No E041 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/913/eng@2024-04-18

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