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ELRCPartially AllowedNot stated in judgment

Waithaka v Golden Africa Kenya Limited (Cause 4 of 2023) [2024] KEELRC 2835 (KLR)

Employment and Labour Relations Court
15 November 2024
1,888 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The claimant, employed by the respondent in 2015 and promoted to Tank Farm Supervisor, was suspended for 14 days on 30.05.2022 following an attempted theft of Crude Palm Oil at the respondent's premises on 25.05.2022, with his May 2022 salary withheld. The suspension was extended by 21 days effective 13.06.2022, and on reporting on 04.07.2022 he was handed a letter of summary dismissal on grounds of gross misconduct under sections 44(4)(f) and (g) of the Employment Act, based on alleged involvement in the theft. He claimed unfair termination and various dues totalling Kshs. 1,755,833.00. The respondent alleged the claimant masterminded the theft, disappeared to frustrate the disciplinary process, and was paid all terminal dues. The court found no disciplinary hearing was ever initiated, the claimant cooperated and did not disappear, and the dismissal was unfair for want of notice and hearing under section 41. Neither section 44(4) ground was valid as at dismissal: the claimant was only charged on 08.11.2022, after termination. Considering section 49, the court awarded maximum 12-months' compensation of Kshs. 1,032,000, one month's pay in lieu of notice, and adopted the respondent's computation of terminal dues of Kshs. 468,750, less Sacco loan settlement to be mutually verified. Judgment was entered for the claimant for Kshs. 1,586,750 (less PAYE) payable by 15.12.2024 with interest thereafter, a certificate of service, and costs of the suit. The Deputy Registrar was directed to return the file to the Machakos Sub-registry.

Questions the Court framed

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

  1. 1.Whether the termination was unfair
  2. 2.Whether the claimant is entitled to money as claimed

Key legal issues

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01

Whether the summary dismissal was procedurally fair under section 41 of the Employment Act

Holding

The dismissal was unfair for want of notice of allegations and a hearing; the claimant cooperated and did not disappear, and no disciplinary process was ever initiated

Reasoning

The claimant received the suspension letters and reported as scheduled, yet was never invited to a disciplinary hearing or given notice of allegations. The respondent's account that he disappeared was contradicted by its own witness, who confirmed he received the letters and that no disciplinary proceedings took place. Nothing prevented the respondent from initiating the process, so the dismissal failed the fair-procedure requirement of section 41.

p. 3
02

Whether the grounds of gross misconduct under section 44(4)(f) and (g) were valid per section 43

Holding

Neither ground was valid as at 04.07.2022: the claimant had not been arrested and unavailable for 14 days, and there was no criminal charge at the time of dismissal to found reasonable suspicion

Reasoning

The section 44(4)(f) ground (arrest for a cognizable offence without release for 14 days) could not apply because the claimant was only arrested and charged on 08.11.2022, after dismissal. The section 44(4)(g) ground of reasonable suspicion of a criminal offence had not accrued by 04.07.2022, since no charge existed and the claimant had only been assured of ongoing investigations. The reasons were therefore neither valid nor fair.

p. 3
03

What remedies are due

Holding

Twelve months' maximum compensation under section 49, one month's pay in lieu of notice, and terminal dues per the respondent's computation, less Sacco loan settlement

Reasoning

The claimant had a clean and exemplary record confirmed by a recognition letter. Aggravating factors were the sudden summary dismissal without notice and hearing after promising a post-investigation review, and unpaid suspension including withholding of 25 days worked in May 2022. These justified the maximum 12-month compensation. Terminal dues were taken from the respondent's statement of final dues, with Sacco loan liability to be mutually verified and settled.

p. 4

Legal principles established

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  • Summary dismissal without notice of particularised allegations and a hearing offends section 41 of the Employment Act and is unfair
  • Grounds for summary dismissal must be valid as at the date of termination per section 43 of the Employment Act

Court orders

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  1. 1.The declaration that the summary dismissal was unfair and unlawful
  2. 2.The respondent to pay the claimant a sum of Kshs. 1,586,750.00 (less PAYE) by 15.12.2024 failing interest at court rates from the date of judgment until full payment
  3. 3.The respondent to deliver the claimant's certificate of service by 15.12.2024
  4. 4.The respondent to pay the claimant's costs of the suit
  5. 5.The Deputy Registrar to cause return of the court file to the Machakos Sub-registry forthwith

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

Relief refused

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Claim as pleaded for terminal dues on salary for May, June to 04.07.2022; prorata leave; service pay in the claimant's own computation

The Court adopted the respondent's computation of final dues instead of the claimant's figures, and directed deduction of amounts settling the claimant's Sacco loan liability

p. 4

Costs

The respondent to pay the claimant's costs of the suit

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.

Accordingly, the Court returns that the summary dismissal was unfair both in procedure and in merits or substance.
p. 4Unfair termination - procedure and substance
The claimant did not disappear as alleged for the respondent. Accordingly, the summary dismissal was unfair for want of fair procedure.
p. 3Rejection of respondent's defence of employee disappearance
judgment is hereby entered for the claimant against the respondent for: 1. The declaration that the summary dismissal was unfair and unlawful.
p. 4Final orders - declaration
The respondent to pay the claimant a sum of Kshs. 1, 586,750.00 (less PAYE) by 15.12.2024 failing interest to be payable thereon at court rates from the date of this judgment until full payment.
p. 4Final orders - monetary award
The respondent to pay the claimant's costs of the suit.
p. 4Final orders - costs

Issues in the judgment

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minor

The memorandum of claim figures as pleaded (Kshs. 258,000 for three months' unpaid salary) appear inconsistent with monthly gross of Kshs. 86,000 used elsewhere, but the judgment itself does not reconcile this

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, "Waithaka v Golden Africa Kenya Limited (Cause 4 of 2023) [2024] KEELRC 2835 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2835/eng@2024-11-15

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