Abong v Safaricom Limited (Employment and Labour Relations Cause 419 of 2018) [2024] KEELRC 2656 (KLR)
The bottom line
#Safaricom's dismissal of an employee was upheld as justified, but the process used was unfair, costing the company money and exposing key HR mistakes.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the summary dismissal
The dismissal was procedurally unfair because the Respondent failed to prove service of the invitation to the disciplinary hearing.
Section 41 requires notification, hearing, accompaniment and consideration of representations. The Respondent asserted the invitation was emailed to the Claimant's Gmail address but produced no evidence of delivery. Speculation from receipt of the dismissal letter at the same address was insufficient; failing to invite the Claimant denied him the opportunity to defend himself.
Substantive justification for the summary dismissal
The dismissal was substantively fair, being based on valid and fair reasons.
The investigation linked the Claimant to fraudulently obtained archived funds: a Word document on his work computer detailing targeted customers, his SIM card paired with handsets used by fraudsters, and his wife's photo used on forged IDs. The Claimant remained silent on these key matters in evidence. Given his role and the financial services industry's trust requirements, a valid and fair reason existed under sections 43 and 44.
House allowance claim
The Respondent failed to pay statutory house allowance; the salary was basic, not consolidated gross pay.
Section 31 of the Employment Act obliges the employer to pay house allowance or provide reasonable accommodation. The letter of appointment provided basic pay only and did not provide for house allowance or gross pay, undermining the Respondent's contention of a consolidated salary. The Claimant was awarded 15% of basic salary for the 34 months of employment.
Withholding of terminal dues (leave encashment and Christmas gift)
The Respondent was not entitled to offset the Claimant's dues against the alleged Kshs 320,000 loss without a counterclaim.
RW1 admitted the Claimant was not directly involved in siphoning the money. The Respondent filed no counterclaim in which the reasons and extent of the Claimant's liability could be canvassed, so withholding the leave encashment and Christmas gift was unjustified.
Legal principles established
#- For termination to pass the fairness test, there must be both substantive justification and procedural fairness
- Where service of disciplinary process by email is denied, the employer must demonstrate that the email was delivered
- An employee's misconduct does not inherently justify summary dismissal unless so grave as to indicate abandonment of the employment relationship
Court orders
#- 1.Declaration that the summary dismissal against the Claimant was procedurally unfair but substantively justified
- 2.Compensation for unfair dismissal pursuant to Section 49[1][c] of the Employment Act, Kshs 66,966.75
- 3.Compensation for unpaid house allowance, Kshs 683,059.065
- 4.Leave encashment, Kshs 139,514.07
- 5.Christmas gift, Kshs 21,428.57
- 6.Release of the Claimant's Huawei P9 Lite phone
- 7.Issue of a Certificate of Service under section 51 of the Employment Act within 30 days of the Judgment
- 8.Interest on the awarded sums from the date of judgment till full payment
- 9.Costs of the suit to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Barasa v Weson Investment Limited t/a Shell Radiant Service Station (Employment and Labour Relations Cause E100 of 2024) [2025] KEMC 26 (KLR)[2025] KEMC 26 (KLR)4 Mar 2025applied
Cite this brief
#Cite this brief
Caselaw, "Abong v Safaricom Limited (Employment and Labour Relations Cause 419 of 2018) [2024] KEELRC 2656 (KLR)", Case Analysis (2024). Not stated in judgment (Memorandum of Claim dated 19th March 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2656/eng@2024-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.