Kenya Union of Domestic Hotels, Educational Institutions, and Hospitals Workers (KUDHEIHA) v Kslh Mombasa Beach Hotel (Cause E036 of 2023) [2024] KEELRC 1560 (KLR)
The bottom line
#A Kenyan court upheld a summary dismissal for suspected theft, but the employee still won unpaid leave worth Ksh. 32,017.
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 grievant was substantively justified
- 2.Whether the termination was procedurally fair
- 3.Whether the grievant is entitled to the reliefs claimed: notice pay, compensation, service gratuity/service pay, annual leave, leave travelling allowance and other terminal dues
Key legal issues
#Whether the summary dismissal for alleged theft was substantively justified
Yes - the grievant's conduct of carrying a box from the kitchen, closely connected to stolen food items found in the service provider's van, gave the employer reasonable and sufficient grounds to suspect him under Section 44(4)(g)
The grievant admitted leaving the kitchen with a box, allegedly to feed fish - a duty not in his job description. A service provider was found with food items stolen from the same kitchen around the same time. The court found the grievant closely connected to the stolen items and unable to extricate himself from the series of events. His response to the show cause notice failed to address the allegations.
Whether the procedure adopted was fair
Yes - the grievant was suspended, issued a notice to show cause, granted a disciplinary hearing, and heard on appeal
Applying the procedural fairness ingredients in Chitavi and the test in Mutiso, the court found the employer followed Section 41 of the Employment Act: notice to show cause issued, response invited, disciplinary hearing held, and appeal heard and determined. The termination therefore satisfied both the substantive justification and procedural fairness tests.
Entitlement to notice pay, compensation, gratuity and service pay
None due - summary dismissal removes notice pay and compensation; no contractual or CBA gratuity; NSSF membership bars service pay
Following summary dismissal, notice pay and compensation under the Employment Act are not available. The claimant produced no collective agreement supporting gratuity. Section 35(6) excludes service pay for NSSF members. The respondent had already paid terminal dues and all accrued leave tabulated and paid.
Annual leave pay for 2021 and 2022
Partly allowed - Ksh. 32,017 awarded, tabulated on the basic wage of Ksh. 25,276 rather than the gross wage claimed
Under Section 28 of the Act, leave pay is due where no work records confirm leave taken. The court awarded 21 days for 2021 (Ksh. 25,276) and 8 days for 2022 (Ksh. 6,740), computing on basic wage as the correct basis rather than the gross wage of Ksh. 43,734 claimed for 2021.
Legal principles established
#- A summary dismissal under Section 44(4) of the Employment Act is justified where the employer has reasonable and sufficient grounds to suspect the employee acted to the substantial detriment of the employer's property
- Annual leave pay under Section 28 of the Employment Act is due where there are no work records confirming leave was taken, and is tabulated on the basic wage
- Service pay is not due to an employee registered with NSSF under Section 35(6) of the Employment Act
Court orders
#- 1.The grievant to be paid annual leave unpaid at Ksh. 32,017
- 2.Each party bears its 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 over unfair termination claims under the Employment Act, 2007 (specific enabling provision not cited in the judgment)
Relief refused
#4 months' salary in lieu of notice
Summary dismissal - notice pay and compensation not available
Service gratuity/service pay
No collective agreement or contractual provision; grievant was registered with NSSF
Compensation for unfair termination
Termination found substantively justified and procedurally fair
Leave travelling allowance
No contract or agreement conferring the benefit
Damages for malicious persecution
Claims made were found not justified save for annual leave pay
Costs
Each party bears its 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.
Accordingly, the claims made are not justified save the grievant will be paid his annual leave unpaid at Ksh. 32,017. Each party bears its costs.
the Respondent had reasonable and suficient grounds to suspect the grievant of having acted to the substantial detriment of the Respondent and its property and was justified in dismissing the Claimant under Section 44(4)(g) of the Act
for a summary dismissal or termination of employment to pass muster, it must not only be substantively justifiable but must in addition have been conducted by a fair procedure
He became so closely connected to the stolen food items found in the laundry bag. He cannot extricate himself from the series of events leading to the food items found in Motor Vehicle No. KDE 945 V.
under Section 28 of the Act, this is due where there are no work records to confirm the employee has taken his annual leave
On the claim for leave travelling allowance, without a contract or agreement to confer the same, this claim is declined.
Issues in the judgment
#The case title and cause number of the suit are not stated anywhere in the judgment extract; only the date of the statement of claim is given
The claimant's claimed figures contain apparent typographical inconsistencies (e.g. '46,734X4=186,939.00' and leave pay figures that do not reconcile)
The judgment states there are no written submissions by the claimant in the court file despite noting both parties filed written submissions
Discrepancy between the parties on employment start date and last wage: claimant pleads employment from 1st August 2005 and last wage Ksh. 46,734, while the respondent admits employment from 1st November 2010 and last wage of Kshs. 33,963.03; the court found the complete employment contract was not provided
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Domestic Hotels, Educational Institutions, and Hospitals Workers (KUDHEIHA) v Kslh Mombasa Beach Hotel (Cause E036 of 2023) [2024] KEELRC 1560 (KLR)", Case Analysis (2024). Not stated in the judgment (statement of claim dated 10th February 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1560/eng@2024-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.