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ELRCPartially AllowedNot stated in the judgment· [2019] KEELRC 2615 (KLR)

Wainaina v Del Monte Company Ltd (Cause 744 of 2015) [2019] KEELRC 2615 (KLR)

Employment and Labour Relations Court
20 December 2019
2,349 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 an employee's dismissal unfair because the employer had no solid proof of theft and refused to hear his witnesses.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a driver from 7.6.2000, was arrested on 17.4.2012 and charged with stealing the employer's motor vehicle KBP 676V. While the criminal case was pending, he was served with a show cause letter, subjected to a disciplinary hearing and summarily dismissed by letter dated 8.5.2012. He was later acquitted in the criminal case and sued for declarations that the dismissal breached natural justice and was unlawful, unfair and unprocedural, together with compensation, gratuity, notice pay, leave pay, legal fees and damages. The issues framed were whether the summary dismissal was unfair and unlawful, and whether the claimant was entitled to the reliefs sought. Applying Section 45(2) of the Employment Act, the court found the only evidence connecting the claimant to the theft - that of guard Boniface Kathoka - contradictory and insufficient on a balance of probability, and held that no reasonable employer would have dismissed him on that basis; the guard's negligent failure to identify the driver made him the proper subject of discipline. On procedure, the court found the claimant's two witnesses were denied audience at the disciplinary hearing, rendering the hearing unfair and offending the rule that justice must be seen to be done. The dismissal was declared unfair and unlawful. The court awarded ten months' salary as compensation (Kshs. 285,338.10), one month's pay in lieu of notice, and gratuity of Kshs. 342,405.72 at one month's basic pay per year of service, the employer having failed to discharge the Section 10(7) burden of disapproving that term. Claims for salary until retirement, leave pay and legal fees were declined. Judgment of Kshs. 627,793.82 was entered, subject to statutory deductions, plus costs and interest at court rates.

Key legal issues

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01

Whether the summary dismissal was grounded on a valid and fair reason

Holding

The respondent failed to prove a valid and fair reason; the only evidence linking the claimant to the theft was unconvincing

Reasoning

The sole evidence connecting the claimant to the theft was that of guard Boniface Kathoka, who contradicted himself about when he learnt the claimant's name and never named him to the CID. The court found this insufficient on a balance of probability, and observed that the guard's negligent failure to identify the driver made him, not the claimant, the proper subject of discipline.

p. 4
02

Whether a fair procedure was followed before dismissal

Holding

The procedure was unfair because the claimant's witnesses were denied audience at the disciplinary hearing

Reasoning

The claimant testified he brought two witnesses to support an alibi but they were not heard. RWI admitted seeing them but denied knowing their role. On a balance of probability the court found the witnesses were denied audience, and that had they been heard a different decision would likely have resulted, as ultimately happened in the criminal case.

p. 4
03

Whether the claimant was entitled to gratuity and other reliefs

Holding

Gratuity for 12 years granted as claimed since the employer failed to discharge the Section 10(7) burden; leave and legal fees claims dismissed

Reasoning

The letter of offer provided that terms would be governed by the prevailing union contract. The employer neither disputed the gratuity claim nor produced the collective agreement, so the claim was granted as prayed at one month's basic pay per year of service. The leave claim lacked particulars and the legal fees claim was misconceived as the proper remedy lay in malicious prosecution.

p. 5

Legal principles established

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  • Termination is unfair under Section 45(2) of the Employment Act where the employer fails to prove both a valid and fair reason and a fair procedure
  • Denying an employee's witnesses audience at a disciplinary hearing renders the hearing unfair and offends natural justice
  • Under Section 10(7) of the Employment Act, the burden of producing the contract of employment and disapproving an alleged term lies on the employer

Court orders

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  1. 1.Declaration that the termination of the claimant's services was unlawful and unfair
  2. 2.Award of compensation of ten months' salary being Kshs. 285,338.10
  3. 3.Award of one month's salary in lieu of notice under Sections 49(1) and 50 of the Employment Act
  4. 4.Award of gratuity of Kshs. 342,405.72 (12 months' basic pay at Kshs. 28,533.81 per month)
  5. 5.Total judgment sum of Kshs. 627,793.82 subject to statutory deductions
  6. 6.Costs of the suit to the claimant plus interests at court rates from the date of judgment
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, Section 45

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, "Wainaina v Del Monte Company Ltd (Cause 744 of 2015) [2019] KEELRC 2615 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2615/eng@2019-12-20

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