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ELRCDismissedCause No 707 of 2018· [2024] KEELRC 1212 (KLR)

Shalimba v New Kenya Co-operative Creameris Limited (Cause 707 of 2018) [2024] KEELRC 1212 (KLR)

Employment and Labour Relations Court
24 April 2024
DMD. K. Njagi Marete
1,916 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a cashier's unfair termination claim, ruling his sacking for neglect of duty was lawful after a fair disciplinary process.

What this practically means

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Executive summary

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The Claimant, engaged in 1987 as a School Milk Clerk and later serving as a Cashier at a basic salary of Kshs. 45,749.00 per month, claimed wrongful, unlawful and unfair termination of his employment on 8th February 2017, non-payment of full terminal benefits, and discrimination as a unionised member. The Respondent denied the claim, asserting that the Claimant was terminated for neglect of duty after an Audit Report revealed fake bank deposit slips for Kshs. 1,771,000/- issued to him between July and August 2016, which he posted into the system without verifying them. The Respondent maintained that the Claimant was given a notice to show cause, appeared before a disciplinary committee on 19th January 2017, was terminated, and lost his appeal; terminal dues of Kshs. 106,852.39 were payable only upon clearance. The court framed four issues: whether termination occurred; whether it was wrongful, unfair or unlawful; entitlement to relief; and costs. Relying on the balance of probabilities and preponderance of evidence, the court found neglect of duty established against the Claimant and held that the termination was lawful. The Claimant was held disentitled to the relief sought. The claim was dismissed on 24th April 2024, with each party bearing their own costs.

Key legal issues

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01

Whether the termination of the Claimant's employment was wrongful, unfair and unlawful

Holding

The termination was lawful; neglect of duty was proved on a balance of probabilities and the disciplinary process was fair

Reasoning

The Claimant, a cashier, failed to verify bank deposit slips before posting them, resulting in a loss of Kshs. 1,771,000/-. He was issued a show cause letter, appeared before a disciplinary committee, was terminated, and his appeal was heard and dismissed. The court found the Respondent's evidence stronger on a balance of probabilities and held the reason valid and the procedure fair.

p. 5
02

Whether the Claimant was entitled to the relief sought

Holding

No; the Claimant, having failed to prove unfair termination, was disentitled to the relief claimed

Reasoning

Since the claim of unlawful, wrongful and unfair termination failed, the consequential reliefs of compensation, terminal benefits, costs and interest fell away. The Respondent had also averred that terminal dues of Kshs. 106,852.39 were payable only upon compliance with its clearance procedure, a matter the court did not need to determine given the dismissal of the claim.

p. 5

Legal principles established

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  • Termination of employment on grounds of neglect of duty, established on a balance of probabilities after a fair disciplinary process, is lawful and entitles the employee to no relief.

Court orders

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  1. 1.Dismissal of the Claimant's claim
  2. 2.Each party to bear their own costs of the cause

Authorities

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Legislation

  • Evidence Act, Chapter 8 Laws of KenyaSection 107
  • Fair Administrative Action Act, 2015Section 4(3)

Cases cited (2)

  • Kenfireight (EA) Ltd vs Benson K. Nguti
    [2016] eKLR
  • Joyce Mukolwe vs Mustek East Africa Limited
    [2021] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the claim (statutory basis not expressly cited in the judgment)

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, "Shalimba v New Kenya Co-operative Creameris Limited (Cause 707 of 2018) [2024] KEELRC 1212 (KLR)", Case Analysis (2024). Cause No 707 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1212/eng@2024-04-24

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