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ELRCPartially AllowedCause No. 1849 of 2016· [2021] KEELRC 687 (KLR)

Nelson Ombeva & another v Kenya Meat Commission [2021] KEELRC 687 (KLR)

Employment and Labour Relations Court of Kenya
14 October 2021
MMM. Mbaru
1,664 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled two clerks were unfairly fired because their employer could not produce records proving misconduct or show a fair hearing.

What this practically means

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Executive summary

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Two clerks of Kenya Meat Commission, employed in 2007 and 2011, were interdicted on allegations of stealing company products and summarily dismissed on 7th March 2016 after a disciplinary hearing. They claimed they were denied the documents relied on (goods return notes, security guard records, credit notes) and were not permitted to give a defence, contrary to sections 41 and 43 of the Employment Act. They sought compensation for wrongful termination, unpaid leave, notice pay, overtime pay, house allowance, certificates of service and costs. The respondent asserted the claimants committed gross misconduct by colluding to raise fictitious Goods Return Notes and Credit Notes understating van sales cash, and that due process was followed, but called no evidence and filed no work records. The court applied section 44(3) and (4) and section 41(2) of the Employment Act, holding summary dismissal requires proof of gross misconduct and due process. With no evidence from the respondent, the claimants' case stood unchallenged; the absence of the alleged records gave credence to their claim that there were no genuine, valid or justified grounds for termination. The court found unfair termination. It awarded each claimant three months' gross wage as compensation under section 49 and notice pay under section 35, refused house allowance because it was already paid with the basic wage, granted leave pay to the 2nd claimant for untaken leave in the final year under section 28, and ordered certificates of service under section 51 and costs of the suit.

Key legal issues

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01

Procedural fairness in summary dismissal

Holding

The respondent failed to accord the claimants due process under section 41(2) as it did not supply documents relied on or call any evidence

Reasoning

The employer must inform the employee of the charges, allow preparation and hearing, and consider representations before dismissal. The claimants requested documents - goods return notes, security guard records - but these were not supplied. The respondent produced no evidence or work records, leaving its assertion that due process was followed bare and the claimants' case unchallenged.

p. 3
02

Validity of reasons for termination

Holding

There were no genuine, valid or justified grounds for the termination as the evidence of theft was never produced

Reasoning

The respondent alleged pilferage through fictitious Goods Return Notes and Credit Notes but produced no supporting records. The duty to produce records under section 10 of the Employment Act was not met, so credence was given to the claimants' evidence that there lacked genuine and valid grounds for dismissal.

p. 3

Legal principles established

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  • Summary dismissal requires proof of gross misconduct and adherence to the procedure in section 41(2) of the Employment Act
  • Where an employer fails to produce employment records, the employee's claims stand uncontroverted
  • The employer must have genuine and valid reasons for termination

Court orders

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  1. 1.1st claimant awarded compensation of Ksh.44,325 and notice pay of Kshs.14,775
  2. 2.2nd claimant awarded compensation of Ksh.70,920, notice pay of Ksh.23,640 and leave pay of Ksh.17,640
  3. 3.Each claimant to be issued with a Certificate of Service
  4. 4.Costs of the suit awarded to the claimants
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 28, 35, 41, 43, 44, 49, 51 applied)

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, "Nelson Ombeva & another v Kenya Meat Commission [2021] KEELRC 687 (KLR)", Case Analysis (2021). Cause No. 1849 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/687/eng@2021-10-14

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