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ELRCPartially AllowedStatement of claim dated 10th October, 2016 (ELRC cause)· [2024] KEELRC 1779 (KLR)

M’alane v Finalys Horticulture Kenya Ltd (Cause 417 of 2016) [2024] KEELRC 1779 (KLR)

Employment and Labour Relations Court
11 July 2024
DNDAVID NDERITU
3,591 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled Finlays unfairly fired a worker it knew was in custody, awarding him maximum compensation and costs.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a crop-sprayer from 24th February 2006 at a gross monthly salary of Kshs7,400/=, was summarily dismissed on 10th April 2012 for alleged absenteeism. He testified that he was assaulted by the respondent's security guards on 4th March 2012, hospitalised at Nanyuki Cottage Hospital, arrested and charged in Nanyuki CMC Criminal Case No. 282 of 2012 with stealing by servant (the respondent being the complainant), and acquitted on 30th April 2013. He claimed he was held in custody until 17th March 2012 and did not report to work on instructions from the HR manager. The respondent's sole witness (RW1, regional HR manager) maintained the dismissal was for absenteeism and denied knowledge of the criminal case. The court found the respondent knew or ought to have known the claimant's whereabouts throughout; it branded RW1's denial of the criminal case dishonest, and held that no notice, hearing, or tracing efforts were made. The dismissal was declared wrongful, unfair, and unlawful. On reliefs, the court awarded one month's notice pay (Kshs7,400/=), salary arrears for March and ten days of April 2012, and the maximum 12 months' compensation under Section 49(1)(c) (Kshs88,800/=), subject to statutory deductions, totalling Kshs105,646/= as ordered. Claims for travelling allowance, house allowance, and severance pay were denied for lack of evidence. The respondent was ordered to issue a certificate of service within 30 days and to pay the claimant's costs. Judgment delivered virtually at Nakuru on 11th July 2024 by David Nderitu, J.

Key legal issues

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01

Whether the summary dismissal for absenteeism was substantively and procedurally fair

Holding

The dismissal was wrongful, unfair, and unlawful; the respondent denied the claimant both substantive and procedural fairness despite knowing his whereabouts.

Reasoning

The respondent knew the claimant had been assaulted by its own security guards, hospitalised, and arraigned in a criminal case in which it was the complainant. It issued no notice to show cause, held no hearing, and made no effort to trace him. Although theft charges could have grounded discipline under Section 44(4)(g), the dismissal was based on absenteeism for which no due process was administered.

p. 7
02

Entitlement to reliefs

Holding

Declaration granted; one month's notice pay, salary arrears, and maximum 12 months' compensation under Section 49(1)(c) awarded; travelling, house, and severance claims denied for lack of evidence.

Reasoning

The court considered Section 49(1)(c) factors: over six years of service, denial of a hearing, no terminal benefits paid, and no re-engagement prospects. It found this an appropriate case for maximum compensation. Claims without evidentiary support were rejected.

p. 8
03

Certificate of service

Holding

Claimant entitled to a certificate of service under Section 51 of the Employment Act.

Reasoning

The court noted the certificate of service is a right of an employee under Section 51 of the Act and ordered the respondent to issue and deliver it within 30 days.

p. 8

Legal principles established

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  • An employer dismissing an employee for absenteeism must demonstrate absence without leave, reasonable efforts to reach the employee, a sufficiently long absence, and due process.
  • An acquittal in criminal charges is conclusive evidence that the employee did not engage in the alleged misconduct.

Court orders

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  1. 1.A declaration be and is hereby issued that the dismissal of the claimant by the respondent was wrongful, unfair, and unlawful.
  2. 2.The claimant is awarded a total of Kshs105,646/= comprising one month's salary in lieu of notice (Kshs7,400/=), salary arrears for March and ten (10) days of April 2012 (Kshs10,246/=), and compensation for wrongful, unfair, and unlawful dismissal (Kshs88,800/=).
  3. 3.The respondent shall issue and deliver to the claimant a certificate of service within 30 days of this judgment.
  4. 4.Costs of the cause to the claimant.

Authorities

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Legislation

  • Employment ActSection 49(1)(c)
  • Employment ActSection 44(4)(g)
  • Employment ActSection 40
  • Employment ActSection 51

Cases cited (7)

  • Boniface Francis Mwangi V BOM Iyego Secondary School
    (2019) eKLR
  • Simon Mbithi Mbone V Inter Security Limited
    (2018) eKLR
  • Joseph Nzioki V Smart Coatings Limited
    (2017) eKLR
  • Julius Kyalo Malonza V Ruth Owolo t/a Erava Catering Services
    (2021) eKLR
  • Mary Chemweno V Kenya Pipeline Company Limited
    (2017) eKLR
  • Loice Otieno V Kenya Commercial Bank Limited
    (2013) eKLR
  • Walter Ogal Anuro V Teachers Service Commission
    (2012) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; Section 49 and Section 51 of the Employment Act 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, "M’alane v Finalys Horticulture Kenya Ltd (Cause 417 of 2016) [2024] KEELRC 1779 (KLR)", Case Analysis (2024). Statement of claim dated 10th October, 2016 (ELRC cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1779/eng@2024-07-11

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