Kigundu v Auto Express Limited (Cause E318 of 2019) [2025] KEELRC 2948 (KLR)

and another audit increased the claim by the respondent to Kshs. 1, 092,496.00 and a report to police was threatened. The claimant made another proposal to pay the claimant as alleged in the audit report but which he had never seen. 3. 4. 5. d. He alleges the termination of employment was unfair in breach of sections 43, 44, 45 of the Employment Act, 2007. e. The respondent has used police to harass the claimant who has since paid Kshs.200,000.00 to the respondent. The respondent filed the answer to memorandum of claim dated 08.07.2019 and through Mucheru Law LLP. The respondent prayed that the claimant’s memorandum of claim be dismissed with costs and counterclaimed and prayed for orders: a. The sum of Kshs. 1, 092, 496.00 with interest thereon until full payment. b. Costs and interest incidental to the suit. c. Any other relief or remedy that the Honourable Court may deem fit to grant. The respondent pleaded as follows: a. Admitted employing the claimant as pleaded for the claimant. He worked from 24.03.2017 to 29.01.2019 as the respondent’s Deputy Chief Accountant. b. He was dismissed for contravening procedures and policies of the company by misappropriating the respondent’s monies. c. The claimant was not a diligent and honest worker. Between December 2018 and January 2019 the claimant handled petty cash while the Regional Accountant was on leave. On 21.01.2019 he handed back the petty cash to the Regional Accountant. A short of Kshs.190,000.00 could not be explained by the claimant. A report was made to the Chief Finance Oficer and the claimant admitted he had as well taken some petty cash from the respondent’s Limuru Road Branch. A comprehensive audit showed that between December 2018 and January 2019 a sum of Kshs.1, 092, 496 was misappropriated by the claimant and which the respondent counterclaims. The claimant testified to support his case and the respondent’s witness (RW) was Kavita Ashok Shah. The Court has considered the material on record and returns as follows: a. The respondent employed the claimant and there was no dispute about the contract of service. b. The claimant by pleading and testimony confirmed that he took responsibility of the amounts now counterclaimed by the respondent. The claimant had alleged duress and threats bu no evidence has be provided. The Court finds that the claimant is liable to refund the respondent as counterclaimed. The evidence is that he signed taking responsibility. The allegations that he had not seen the audit reports is found a mere empty afterthought. The evidence is that he voluntarily took responsibility. c. The summary dismissal was not unfair. Section 44 of the Employment Act, 2007 allowed an employer to dismiss an employee with no notice or shorter notice than thje contractual notice on account of gross misconduct. The Court finds that the claimant’s conduct was gross and he confirmed that meetings were held on 28th and 29th January 2019 prior to the dismissal. The reasons for termination are found valid per section 43 and fair per section 45 of the Act and the procedure adopted for gross misconduct was not unfair. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2948/eng@2025-10-30 2

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d. 6. Thus, the claimant’s suit is liable for dismissal and the respondent’s counterclaim will succeed. In conclusion judgment is hereby entered for the respondent against the claimant for: a. Dismissal of the memorandum of claim with costs. b. The claimant to pay the respondent Kshs.1,092,496,00 by 01.02.2026 failing interest to run thereon at Court rates until full payment. c. The claimant to pay costs of the counter-claim. SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS THURSDAY 30TH OCTOBER, 2025. BYRAM ONGAYA PRINCIPAL JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2948/eng@2025-10-30 3

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