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ELRCPartially AllowedAppeal from Mombasa MCELRC No. E227 of 2021· [2024] KEELRC 2708 (KLR)

Juma v Cello Thermowave Limited (Appeal E067 of 2023) [2024] KEELRC 2708 (KLR)

Employment and Labour Relations Court
31 October 2024
MMM. MBARŨ
2,574 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court upheld a mechanic's summary dismissal for repeated sleeping on duty but ruled employers cannot force retirement at 60 without an agreed policy.

What this practically means

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Executive summary

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This is a first appeal from the judgment of 22 June 2023 in Mombasa MCELRC No. E227 of 2021, in which the trial magistrate dismissed the appellant's claims for unfair termination and terminal dues. The appellant, a mechanic employed for approximately 30 years until summary dismissal on 9/10 March 2021 for sleeping while on duty, argued that no disciplinary hearing was conducted, that there was no agreed retirement age, and that terminal dues were not assessed. The respondent maintained that dismissal followed repeated warnings and a disciplinary process. The judge, hearing the appeal as a first appeal and re-evaluating the evidence per Selle v Associated Motor Boat Co., held that the summary dismissal was justified: the appellant had received multiple warnings for the same conduct, was invited to show cause, and attended a disciplinary meeting with a representative of his choice, amounting to gross misconduct under section 44 of the Employment Act. However, the court found the trial court erred in treating the appellant as a casual employee after age 60, holding that retirement age must be agreed or found in employer policy, and that denying rights at work based on age borders on discrimination. Claims for notice pay, compensation, public holidays, overtime, house allowance, NSSF/NHIF and service pay all failed. Only leave pay for 2021 and days worked in March 2021 were awarded - Ksh.15,346 less statutory deductions - with a certificate of service to issue and each party bearing its own costs.

Key legal issues

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01

Justification of summary dismissal for gross misconduct

Holding

Dismissal justified; repeated warned conduct of sleeping on duty amounted to gross misconduct under section 44 of the Employment Act

Reasoning

The appellant had been issued several warning letters over sleeping at work (2017, 2018, 2020) and persisted in the conduct. He was issued a notice to show cause, responded, and attended a disciplinary meeting with a representative of his choice. His explanation, including a medical form with discrepancies, was found unsatisfactory. The employer thus had valid and sufficient grounds for summary dismissal under section 44.

p. 4
02

Retirement age and treatment as casual employee

Holding

The trial court erred in finding the appellant became casual after 60; retirement age must be agreed, in a collective agreement, or per employer policy; age-based denial of rights is discriminatory

Reasoning

No contract or employer policy set a retirement age of 60. The appellant worked until 65. Rights at work cannot be negated due to age; doing so borders on discriminatory treatment. The trial court's general finding that he was a casual employee terminable by one day's notice was in error.

p. 5
03

Assessment of terminal dues

Holding

Only accrued leave pay for 2021 and days worked in March 2021 due: Ksh.15,346 less statutory deductions

Reasoning

Leave forms showed leave taken over the years; 3.5 days accrued for 2021 yielding Ksh.3,886. Older accrued leave is lost under section 28(4). Claims for public holidays, overtime, house allowance, NSSF/NHIF and service pay all failed for lack of particulars or contrary documentary evidence.

p. 6

Legal principles established

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  • An employer may summarily dismiss for gross misconduct where there are reasonable and sufficient grounds, especially where the employee was warned and repeated the conduct
  • Retirement age must be agreed by the parties, in a collective agreement, or in an employer's policy; denying rights at work based on age is discriminatory
  • Accrued leave beyond the statutory period is lost by operation of law under section 28(4) of the Employment Act

Court orders

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  1. 1.Appeal allowed to the extent that judgment in Mombasa MCELRC E227 of 2021 is reviewed
  2. 2.Award of Ksh.15,346 in leave pay and days worked less statutory deductions, payable upon clearance
  3. 3.Certificate of service to be issued
  4. 4.Each party bears its own costs

Authorities

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Legislation

  • Employment ActSection 44 (including 44(4))
  • Employment ActSection 28 (including 28(4))
  • Employment ActSection 31
  • Employment ActSection 35(5) and (6)
  • Wage Orders

Cases cited (6)

  • Selle & Another versus Associated Motor Boat Co. Ltd. & others
    (1968) EA 123
  • Robert Githua Githaka v Saab Kenya Limited
    [2016] eKLR
  • Galgalo Jarso Jillo v Agricultural Finance Corporation
    [2021] eKLR
  • Muthaiga Country Club v KUDHEIHA Workers
    [2017] eKLR
  • Matseho v Newton
    [2022] eKLR
  • Charles Nyaringo Rianga v Hatari Security Guards Limited
    [2019] eKLR
On appeal from
Magistrates' Court (Mombasa MCELRC No. E227 of 2021)
Mombasa MCELRC No. E227 of 2021
Jurisdiction invoked
First appeal from the trial court's judgment in Mombasa MCELRC No. E227 of 2021

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, "Juma v Cello Thermowave Limited (Appeal E067 of 2023) [2024] KEELRC 2708 (KLR)", Case Analysis (2024). Appeal from Mombasa MCELRC No. E227 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2708/eng@2024-10-31

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