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ELRCPartially AllowedNot stated in the judgment· [2024] KEELRC 2167 (KLR)

Nyakundi v House of Leather t/a Levs Trading Company Limited (Cause 722 of 2016) [2024] KEELRC 2167 (KLR)

Employment and Labour Relations Court of Kenya
30 August 2024
2,208 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that firing an employee without a proper disciplinary hearing and proof of wrongdoing was unfair, awarding the worker Kshs 272,290.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Sales Representative from December 2005 at a monthly salary of Kshs 19,435 and recognised as its best worker in 2014, was summarily dismissed on 1st December 2015 on grounds of stealing 48 assorted flowers, lying to the Director, and absconding duty. He claimed he was never afforded a disciplinary hearing as required by Section 41 of the Employment Act. The Respondent maintained the dismissal was fair, asserting the Claimant confessed to the Director that he used the flowers for personal gain, later absconded, and had collected customer money without remitting it. The Court found there was no record of a show-cause letter, investigation, or properly convened disciplinary hearing; the Director's interrogation did not amount to a disciplinary process, and the alleged confession was undocumented, with the Managing Director not testifying. The delivery note was in the driver's name and nothing tied the Claimant to the flowers. The Court rejected the absconding narrative as implausible, holding the Claimant was likely told to stay away pending communication, and that generic accusations such as indiscipline and dishonesty could not constitute valid reasons. Termination was declared procedurally flawed and substantively unsound. The Claimant was awarded 12 months' salary (Kshs 233,220) as compensation for unfair termination, one month's notice pay (Kshs 19,435), and his withheld November 2015 salary (Kshs 19,435), totalling Kshs 272,290, plus costs and interest at court rates. Claims for 12 months' notice pay, annual leave, and 'superior' pension were declined for lack of foundation or evidence.

Key legal issues

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01

Procedural fairness of the summary dismissal

Holding

Termination was procedurally flawed: no show-cause letter, no investigation, no disciplinary hearing, and the Director's interrogation did not satisfy Section 41 of the Employment Act.

Reasoning

The only process preceding dismissal was an interrogation led by the Director, whose alleged deception of him was itself a ground of dismissal. There was no record of a show-cause letter or investigation, no specified charges, no independent disciplinary panel, and no advisement of the right to be accompanied by a colleague or union representative. Even after the alleged absconding, the Respondent made no effort to convene a hearing despite knowing how to reach the Claimant through his brothers.

p. 3
02

Substantive justification for termination

Holding

No valid reason was established; the theft, lying and absconding allegations were unproved, and the delivery note named the driver, not the Claimant.

Reasoning

The delivery note was in the name of driver Moses Ng'ang'a, who was not called to link the Claimant to any mischief. The alleged confession to the Managing Director was not documented and the Managing Director did not testify. The pleaded grounds were generic accusations incapable of constituting valid reasons. Termination therefore fell short of the standards under Sections 41, 43 and 45 of the Employment Act.

p. 4
03

Whether the Claimant absconded or was told to stay away

Holding

The Court preferred the Claimant's version that he was advised to stay away pending communication, and rejected the absconding narrative as implausible.

Reasoning

After an interrogation, it was implausible that the Respondent expected the Claimant to report to work 'as usual' the following day; he would have been awaiting the Director's findings. If he had genuinely absconded, the Respondent, which knew his brothers were its employees, could still have reached him for a disciplinary hearing.

p. 3
04

Withholding of November 2015 salary

Holding

Withholding was unjustified since no theft by the Claimant was proved; the salary had to be paid.

Reasoning

The Respondent pleaded that the salary was withheld to recover the cost of 48 flowers allegedly stolen by the Claimant, but the Court found no evidence of theft. Reliance on Section 19(1) of the Employment Act to justify the withholding was therefore unsustainable.

p. 5

Legal principles established

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  • An interrogation by a Director is not a disciplinary hearing; procedural fairness under Section 41 of the Employment Act requires a properly convened disciplinary forum with specified charges and the right to be accompanied.
  • Omnibus or generic accusations such as indiscipline, dishonesty, negligence, recklessness and breach of conduct cannot constitute valid reasons for termination.

Court orders

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  1. 1.It is declared that termination of the Claimant's contract by the Respondent was unfair and unlawful.
  2. 2.The Respondent shall pay to the Claimant equivalent of 12 months' salary in compensation for unfair termination at Kshs 233,220; notice at Kshs 19,435; and salary for the month of November 2015 at Kshs 19,435 – total Kshs 272,290.
  3. 3.Costs to the Claimant.
  4. 4.Interest granted at court rates, from the date of Judgment, till payment is made in full.
Jurisdiction invoked
Original employment and labour relations jurisdiction under the Employment Act (Sections 41, 43, 45 and 19(1) 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, "Nyakundi v House of Leather t/a Levs Trading Company Limited (Cause 722 of 2016) [2024] KEELRC 2167 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2167/eng@2024-08-30

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