Wycliff Jumba Indiazi v Mega Pack (K) Limited [2020] KEELRC 1435 (KLR)
The bottom line
#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 for hiding a bailer twine was justified and followed due process
- 2.Whether the claimant is entitled to notice pay and compensation for unfair termination
- 3.Whether the claimant is entitled to pay for rest days worked
- 4.Whether the claimant is entitled to pay in lieu of untaken annual leave
- 5.Whether the claimant is entitled to service gratuity
- 6.Whether the claimant is entitled to general damages for mental anguish
Key legal issues
#Whether summary dismissal for gross misconduct was justified
The dismissal was justified; the claimant hid the bailer twine with intent to steal and failed to show good cause
The claimant admitted sourcing a second bailer twine while the first was unfinished and hiding it behind the machine. He was issued a show cause notice and, though he missed the scheduled hearing of 22 November 2016, he was heard on 23 November. His explanations were found insufficient. Sections 44(3) and (4) read with section 41(2) of the Employment Act permit summary dismissal on gross misconduct after hearing the employee.
Whether due process was followed
Due process was followed; the claimant received a show cause notice and a disciplinary hearing
The court found that the claimant was given a notice to show cause, was invited to a hearing, and although he failed to attend on the scheduled date of 22 November 2016, he appeared the next day and was given a hearing. His terminal dues were tabulated and deposited into his bank account. Accordingly, the procedural requirements of the Employment Act were satisfied.
Legal principles established
#- An employer may summarily dismiss an employee for gross misconduct under section 44(3) and (4) of the Employment Act after inviting the employee to give a defence under section 41(2), and failure to give good cause justifies dismissal
Court orders
#- 1.The claims made by the claimant are dismissed
- 2.Costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims (Employment Act, 2007; claim for terminal dues following summary dismissal)
Relief refused
#Compensation and notice pay
Summary dismissal was justified and followed due process under sections 44(3) and (4) and 41(2) of the Employment Act
Pay for rest days worked
Respondent's unchallenged clocking records showed the claimant worked 6 days a week with Sunday as rest day
Pay in lieu of annual leave
Payment statements showed the claimant was paid leave balance and leave travelling allowance
Service gratuity
No separate contract or agreement providing for gratuity; statutory dues were deducted and remitted
General damages for mental anguish
Termination having been found justified, a claim for mental anguish has no foundation
Costs
Costs to the respondent
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.
Section 44(3) and (4) of the Employment Act, 2007 read together with section 41(2) of the Act allow the employer to dismiss the employee from his employment following gross misconduct and after inviting such an employee to given his defence and there is no good cause given.
In this case, summary dismissal is hereby found justified. The claimant was taken through the due process. Compensation and notice pay is not due.
Accordingly, the claims made are hereby dismissed. Costs to the respondent.
Issues in the judgment
#Judgment inconsistencies in date of employment commencement (August 2010 vs contract running from 1st April 2014) and leave payment months (November and December 2013) appear internally in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wycliff Jumba Indiazi v Mega Pack (K) Limited [2020] KEELRC 1435 (KLR)", Case Analysis (2020). Cause No. 70 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1435/eng@2020-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.