Bonface Simiyu Makoe v Kongoni River Farm (Star Division) [2020] KEELRC 1064 (KLR)
The bottom line
#Kenya's Employment Court upheld a farm worker's summary dismissal for theft, ruling his employer followed fair procedure and owed no compensation.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the summary dismissal of the claimant on 27th July, 2016 was for a valid and fair reason and conducted in accordance with fair procedure under sections 41, 43 and 44 of the Employment Act, 2007
- 2.Whether the claimant is entitled to compensation for unfair dismissal, gratuity, house allowance and other terminal dues claimed
Key legal issues
#Compliance with section 41 of the Employment Act (notice and hearing before termination)
The court found substantial and full compliance with section 41: the claimant was notified of the misconduct, issued a show cause notice, replied, and attended a disciplinary hearing with a representative of his choice, a union representative and shop steward
The evidence showed the claimant was notified of the theft allegations, issued a notice to show cause dated 18th July 2016, replied in writing, and was heard at a disciplinary meeting on 23rd July 2016 attended by his chosen representative Bradley, a union representative and shop steward, with minutes recorded verbatim. His responses were heard and considered before summary dismissal.
Validity of the reason for termination under sections 43 and 44(4)
The reason - removal of two troughs from the pack house without authorisation, amounting to theft and gross misconduct - justified summary dismissal
At the disciplinary hearing the claimant admitted removing two troughs without authorisation and not following correct procedures. The hearing found this was theft of company property through an organised scheme. Under section 44(4) read with sections 41 and 43, summary dismissal was lawful and justified.
Entitlement to terminal dues where dismissal is justified
Only the dues admitted by the respondent in submissions and the dismissal letter are payable, to be tabulated at the shop floor; compensation, gratuity and house allowance are not due
The respondent admitted owing pay for days worked, untaken leave, overtime, off days and a certificate of service. Compensation for unfair dismissal was not due as the dismissal was justified; gratuity was unsupported by any collective agreement or contract; house allowance had already been paid under the July 2016 payment statement.
Legal principles established
#- An employer need only prove the reasons it genuinely believed to exist for terminating an employee's services under section 43 of the Employment Act
- An employee found guilty of gross misconduct cannot sanitise the misconduct by offering to resign so as to earn service pay
Court orders
#- 1.The claims made are dismissed
- 2.The claimant shall attend at the shop floor and his terminal dues tabulated in accordance with the letter and notice of summary dismissal (pay for days worked, untaken leave days, unpaid overtime, unpaid off days and certificate of service)
- 3.Each party shall bear own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment relationship between the parties)
Relief refused
#Compensation for unfair dismissal
Summary dismissal was found justified on grounds of gross misconduct (theft); compensation is not due where dismissal has good foundation
Gratuity pay for 6 years (Ksh.32,463)
No collective agreement or contract providing for gratuity in circumstances of gross misconduct; statutory dues were paid
House allowances for 45 days (Ksh.3,000)
Payment statement for July 2016 shows a house allowance of Ksh.2,000 was already paid
Costs of the suit
Each party to bear own costs
Costs
Each party shall bear own costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The court finds there substantial and full compliance with the requirement for a hearing under Section 41, of the Employment Act, 2007
The claimant cannot sanitise his gross misconduct by offering to resign from his employment so as to earn service pay.
Accordingly, the claims made are hereby dismissed. The claimant shall attend at the shop floor and his terminal dues tabulated in accordance with letter and notice of summary dismissal. Each party shall bear own costs.
Issues in the judgment
#The list of refused claims (compensation, gratuity, house allowance and costs) appears after the disposition without introductory text, apparently summarising the dismissed heads
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.
Cite this brief
#Cite this brief
Caselaw, "Bonface Simiyu Makoe v Kongoni River Farm (Star Division) [2020] KEELRC 1064 (KLR)", Case Analysis (2020). Cause No. 502 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1064/eng@2020-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.