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ELRCDismissedCause No. 502 of 2016

Bonface Simiyu Makoe v Kongoni River Farm (Star Division) [2020] KEELRC 1064 (KLR)

Employment and Labour Relations Court of Kenya
11 May 2020
1,701 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, a general worker employed by the respondent from about 2010 at a monthly wage of Ksh.7,378, was summarily dismissed on 27th July, 2016 after being accused of stealing two troughs (200 metres each) from the pack house. He claimed unpaid salaries, compensation for unfair dismissal, gratuity, unpaid July salary, unpaid leave, overtime, off days and house allowance, contending he received no notice or reasons. The respondent's case, through its human resource assistant Evelyn Otieno, was that the claimant admitted taking the troughs, was 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 a union representative, a shop steward and a colleague of his choice, where he offered to resign to earn his dues rather than face summary dismissal. The court found substantial and full compliance with section 41 of the Employment Act, 2007 and, applying the Court of Appeal decision in Wasike v KPLC on section 43, held that the respondent genuinely and reasonably believed the claimant committed theft, amounting to gross misconduct under section 44(4). Summary dismissal was therefore lawful and justified, and the claimant could not sanitise his misconduct by offering to resign to earn service pay. The suit was dismissed, but the respondent's admitted dues (pay for days worked, untaken leave, overtime, off days and certificate of service) are to be tabulated at the shop floor. Each party was ordered to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 2.Whether the claimant is entitled to compensation for unfair dismissal, gratuity, house allowance and other terminal dues claimed

Key legal issues

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01

Compliance with section 41 of the Employment Act (notice and hearing before termination)

Holding

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

Reasoning

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.

p. 2
02

Validity of the reason for termination under sections 43 and 44(4)

Holding

The reason - removal of two troughs from the pack house without authorisation, amounting to theft and gross misconduct - justified summary dismissal

Reasoning

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.

p. 3
03

Entitlement to terminal dues where dismissal is justified

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The claims made are dismissed
  2. 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. 3.Each party shall bear own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment relationship between the parties)

Relief refused

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Compensation for unfair dismissal

Summary dismissal was found justified on grounds of gross misconduct (theft); compensation is not due where dismissal has good foundation

p. 3

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

p. 3

House allowances for 45 days (Ksh.3,000)

Payment statement for July 2016 shows a house allowance of Ksh.2,000 was already paid

p. 3

Costs of the suit

Each party to bear own costs

p. 3

Costs

Each party shall bear own costs.

Quotable passages

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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
p. 2Fair procedure under section 41 Employment Act
The claimant cannot sanitise his gross misconduct by offering to resign from his employment so as to earn service pay.
p. 3Effect of an offer to resign on a justified summary dismissal
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.
p. 3Disposition and final orders

Issues in the judgment

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minor

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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.