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ELRCDismissedAppeal from Mombasa MCELRC No. E362 of 2022· [2024] KEELRC 1476 (KLR)

Odero v Real People Kenya Limited (Appeal E134 of 2023) [2024] KEELRC 1476 (KLR)

Employment and Labour Relations Court of Kenya
14 March 2024
3,877 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan employee's appeal against summary dismissal failed because the court found gross misconduct justified the firing and illness is not automatically a disability.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Mombasa against the judgment of a learned magistrate delivered on 17 November 2023 in Mombasa MCELRC No. E362 of 2022, which had dismissed the appellant's claim with costs. The appellant, a customer service officer diagnosed with stiff person syndrome, alleged disability discrimination contrary to Article 27 of the Constitution and Sections 5 and 47 of the Employment Act, and unfair summary dismissal on 27 April 2022 over alleged misappropriation of petty cash. She sought 12 months' compensation, notice pay, exemplary damages of Kshs. 2,000,000 and costs. The respondent maintained the dismissal was for gross misconduct - the appellant failed to disclose for six months that petty cash funds from the branch manager were not received, and signed fictitious cash counts - and that due process was followed. On appeal, the court restated its duty to re-evaluate the evidence afresh (Selle v Associated Motor Boat Co). It upheld the magistrate's finding that the magistrates' court lacked jurisdiction over the constitutional discrimination claim, noting further that the appellant never proved certification or registration as a person with a disability, illness and disability being distinct (citing Gichuru v Package Insurance Brokers). On termination, the court found a valid reason for summary dismissal under Sections 44(4) and 41(2) of the Act, and that the show cause notice, prompt hearing, and advisement of rights to representation and witnesses satisfied procedural fairness; refusal to call the branch manager was not fatal since the charges were personal to the appellant. Terminal dues had been paid, placing the employer in good standing under Section 45(5). The appeal was dismissed, with the appellant to meet 50% of the respondent's costs of the appeal.

Key legal issues

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01

Whether the magistrates' court had jurisdiction over the disability discrimination claim

Holding

The magistrate correctly found no jurisdiction over constitutional discrimination claims; the appellant did not challenge this on appeal, and the discrimination claim failed also for lack of proof of certification as a person with disability.

Reasoning

The court reiterated that Article 165 read with Articles 23, 25 and 41 confers jurisdiction over Bill of Rights violations on superior courts only. Further, under the Persons with Disabilities Act, illness and disability are differentiated only upon certification and registration as a person with a disability, which the appellant never pleaded or proved.

p. 5
02

Whether the summary dismissal was for a valid reason

Holding

Yes. The appellant aided misappropriation of petty cash by failing to disclose non-receipt of funds for six months and signing fictitious cash counts, constituting gross misconduct under Sections 44(4) and 41(2) of the Employment Act.

Reasoning

The appellant faced a serious personal charge of aiding the branch manager's misappropriation, failing to disclose the facts for six months, and preparing and signing off cash count sheets knowing funds were unavailable. Reporting the shortfall to the internal auditor came seven months after she became aware of it. Section 45(5) good standing was also supported by payment of terminal dues.

p. 7
03

Whether due process under Section 41 was followed, including refusal to call the branch manager as witness and speed of the hearing

Holding

Yes. The appellant was issued a show cause notice, responded, attended a hearing, and was advised of her right to representation and to call witnesses; the presence of the branch manager would not have aided her defence.

Reasoning

Relying on Oyombe v Eco Bank and Chitavi v Malindi Water, the court set out the elements of procedural fairness and found them met. The charges were personal and individual to the appellant, so the branch manager's presence would not have assisted. The four elements for fair summary dismissal were satisfied, and the trial court's sound findings could not be faulted.

p. 7
04

Remedies

Holding

Justified summary dismissal removes notice pay and compensation; terminal dues of Kshs. 51,667 were paid and acknowledged, placing the employer in good standing under Section 45(5).

Reasoning

Upon summary dismissal Sections 18(4) and (5) of the Act apply, but the appellant failed to particularise those claims. Payment and acknowledgment of terminal dues was not contested, supporting the finding of justified termination and informing the partial costs award.

p. 8

Legal principles established

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  • A first appellate court must re-evaluate and reconsider the evidence adduced before the trial court to draw its own independent conclusions, making due allowance for not having seen or heard the witnesses.
  • A health condition is not necessarily a disability; proof of disability requires certification and registration under the Persons with Disabilities Act.
  • Only superior courts have jurisdiction to determine claims of violation of constitutional rights under the Bill of Rights, including the right to non-discrimination, notwithstanding the monetary jurisdiction of the lower court.

Court orders

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  1. 1.The appeal is found without merit and is dismissed
  2. 2.The appellant is to meet 50% of the costs due to the respondent for this appeal
On appeal from
Magistrates' Court (Employment and Labour Relations), Mombasa
Mombasa MCELRC No. E362 of 2022
Jurisdiction invoked
First appellate jurisdiction over the magistrates' court in employment and labour matters

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, "Odero v Real People Kenya Limited (Appeal E134 of 2023) [2024] KEELRC 1476 (KLR)", Case Analysis (2024). Appeal from Mombasa MCELRC No. E362 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1476/eng@2024-03-14

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