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Case Brief · caselaw.co.ke
IndustrialPartially AllowedNot stated in judgment· [2014] KEIC 84 (KLR)

Okinyi v Grain Bulk Handlers Ltd (Cause 199 of 2013) [2014] KEIC 84 (KLR)

Employment and Labour Relations Court
5 December 2014
1,840 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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A Kenyan employer who reinstates an employee after a disciplinary hearing cannot dismiss him days later on new evidence without giving him a fresh hearing.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 1999 and confirmed in 2001, rose to Technical Assistant Coordinator earning Ksh.90,000 per month. On 15/6/2013 he was suspended over the alleged removal of 200 litres of diesel and 40 litres of coolant from the respondent's terminal. After a disciplinary hearing on 21/6/2013 he was exonerated and unconditionally reinstated, resuming work on 22/6/2013. On 27/6/2013 he was nonetheless summarily dismissed for the same alleged offence on the basis of further statements recorded on 24/6/2013 by a security officer, Gilbert Nyange, and a mechanic, Nyakwak, without being shown or heard on the new evidence. The court found the dismissal procedurally unfair because Section 41 of the Employment Act mandatorily requires an oral hearing, and the claimant received no fresh hearing on the alleged new evidence. Substantively, the further statements were self-confessions by the declarants and did not implicate the claimant; CCTV footage never showed him; and the only gate pass he signed covered just 20 litres of coolant and an extension cable. No theft was proved under Sections 43 and 45. The dismissal was declared unfair and unjustified under Section 45. The court awarded one month's notice pay (Ksh.90,000) and maximum compensation of 12 months' gross pay (Ksh.1,080,000), totaling Ksh.1,170,000, plus costs and interest. The claims for leave and gratuity were dismissed, the former because all leave days were taken and the latter because NSSF and staff pension membership disqualified him under Section 35(6).

Key legal issues

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01

Procedural fairness of the summary dismissal

Holding

The dismissal was procedurally unfair because the claimant was never heard on the alleged new evidence before dismissal

Reasoning

The claimant had been heard and exonerated by a disciplinary committee on 21/6/2013 and unconditionally reinstated. The respondent thereafter dismissed him on 27/6/2013 based on further statements recorded on 24/6/2013. RW1 admitted the new evidence was never shown to the claimant and he was never given a chance to defend himself. Section 41 requires an oral hearing in mandatory terms, so failure to accord a fresh hearing rendered the dismissal unfair.

p. 3
02

Validity of the reason for dismissal

Holding

No valid and fair reason of theft was proved against the claimant

Reasoning

The further statements by the security officer Gilbert Nyange and mechanic Nyakwak were self-confessions of their own roles and did not accuse the claimant of coercion or undue influence. CCTV footage did not show the claimant. The only gate pass the claimant signed covered 20 litres of coolant and an extension cable, not 200 litres of diesel and 40 litres of coolant. The theft was therefore not proved under Sections 43 and 45.

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03

Remedies for unfair termination

Holding

Maximum 12 months' compensation plus one month's notice pay awarded; leave and gratuity claims refused

Reasoning

Under Section 49 an unfairly dismissed employee is entitled to notice pay, accrued dues and compensation. Maximum compensation was justified because the claimant did not secure other employment within 12 months and the respondent acted unreasonably and capriciously in dismissing him after unconditional reinstatement based on statements by the real culprits. Leave was refused as all leave days were taken; gratuity was barred by Section 35(6) given NSSF and pension membership.

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Legal principles established

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  • Termination for alleged misconduct is unfair unless done within Sections 41 and 45 of the Employment Act, including an oral hearing in a language the employee understands in the presence of a fellow employee of his choice
  • Where an employee is heard and exonerated by a disciplinary committee and the employer later relies on new evidence to dismiss him, the employer must accord the employee a fresh hearing on the new evidence
  • The employer bears the burden of proving a valid and fair reason for dismissal under Sections 43 and 45 of the Employment Act

Court orders

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  1. 1.Judgment entered for the claimant declaring his summary dismissal on 27/6/2013 unfair
  2. 2.Award of Ksh.1,170,000 (Ksh.90,000 salary in lieu of notice plus Ksh.1,080,000 being 12 months gross pay for unfair termination) plus costs and interest
  3. 3.Prayer for leave dismissed
  4. 4.Prayer for gratuity dismissed
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 41, 43, 44, 45, 49 and 35(6) 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, "Okinyi v Grain Bulk Handlers Ltd (Cause 199 of 2013) [2014] KEIC 84 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/84/eng@2014-12-05

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