1. By a statement of claim filed on 24th October, 2019, the claimant averred inter alia that:
i) On or about July 2012, the Respondent employed the services of the Claimant as a Logistics Coordinator at its company located along Garden Estate Road, off Thika Road, based at their office in Marurui Yard in Nairobi earning a salary of Kshs.80,000/- per month. The Claimant has a copy of the Respondent’s Recommendation Letter proving the said employment marked ‘A’.
ii) THE Claimant commenced employment as aforesaid and served the Respondent with loyalty and diligence until May 2019 when the Respondent wrongfully and unlawfully Terminated his employment and did not follow due process and further failed to pay his terminal dues which are tabulated below:-s..
The Claimant was in employment from July 2012to on or about May 2019 [ 6.92 years) as a Logistics Coordinator at the Respondent’s premises earning a monthly salary of Kshs. 80,000/=;
a) Notice Pay
b) Leave Days (80,000 x ] ]
c) House allowance! 15/100 x 80,000 x 6.92 xl 2 )
d) Service Pay(46,154/26 x 6.92)
e) Unfair Termination (80,000 x 12}
TOTAL
iii) THE Claimant Claim against the Respondent is for Kshs. 2,137,692.00 hereinabove plus costs and interest of the suit.
iv) On or about 8th May, 2019, there was a theft that occurred at the Respondent’s office premises whereby the Claimant was summoned by the Human Resource Manager who interrogated him together with his colleagues. Two days later, he was invited for a “hearing" on the phone which hearing took place on 15th May 2019 at Garden Estate office. In attendance were the Human Resource Manager Mary Karanja, her assistant Micah Kimeli, Safety Manager Mr. Anthony Chirchir, Legal Advisor Ms. Irene and the Claimant. On 23rd May 2019, the Claimant later received Summary Dismissal Letter which the company kept but he obtained a copy by taking a photo of it.
v) THE above meeting was wrongly constituted as the Claimant had no representative at the meeting neither was he given a chance to bring one. Furthermore, the said meeting was merely an interrogation panel as the Claimant was not given a chance to ventilate his case and therefore the decision to summarily dismiss him was unlawful and unfair as it has no legal basis.
vi) THE Respondent's action of terminating the Claimant's employment was abrupt, un-procedural and amounted to unfair termination.
vii) THE Claimant avers that the Respondent never provided him with a housing facility neither was he paid for the same.
2. The Respondent filed its defence on 18th December, 2019 and
averred inter alia
a) The Respondent denies the contents of paragraphs 4 of the Memorandum of Claim and in particular the claimant’s claim amounting to Kshs. 2, 137, 692.00 and puts the claimant to strict proof thereof of anything to the contrary.
b) The Respondent denies the contents of paragraphs 4 of the Memorandum of Claim and in particular the claimant’s claim amounting to Kshs.2,137,692.00 and puts the claimant to strict proof there of anything to the contrary.
c) ln response to paragraph 10 of the Memorandum of Claim, the Respondent states that the Claimant utilized all his leave days (if any) with full pay and (if any) were paid. The claimant is put to strict proof thereof of anything to the contrary.
d) The Respondent denies the contents of paragraph 11 of the Memorandum of Claim and puts the claimant to strict proof of anything to the contrary. All the reasons listed therein purporting to amount to acting unprocedurally, unfairly and in breach of the provisions of the Employment Act and Constitution arc denied.
EVIDENCE
3. At the trial the Claimant (CW1) adopted his witness Statement filed on 26th September, 2019 and the documents
filed with the claim as his evidence in chief and exhibits.
4. In cross-examination he stated that he was the logistics
coordinator and worked from 2012 to 2019. It was his
evidence that a lot of theft used to happen at the respondent’s premises and that he could remember the incident of 2017. It was further his evidence that he knew one Edward Ochieng. That they used to work together in Mombasa. He further stated that he was suspended in 2017 for two days. He thereafter resumed work and worked normally.
5. The claimant further stated that he remembered the incident
of 8th May, 209 and that he was not alone. Jane and Njoroge
were his colleagues. He was interrogated over the incident of
8th May, 2019 and was told he would be called back but was
never called. He instead received a termination letter. He
further stated that he got an SMS about a disciplinary
hearing to take place on 15th May, 2019. This was four days
away. The hearing took place as scheduled and according to
him, he was unfairly terminated.
In re-examination he stated that he was not to blame for the 2019 theft but in a different department he had been charged with theft. There was no investigation report implicating him. Further, he was never asked to come with a colleague to the disciplinary hearing. Upon termination, he was never paid his terminal dues.
6. The respondent’s witness Ms. Vivian Nelima stated that she
was the legal officer of the respondent and that she knew the
claimant as a former employee of the respondent. She
adopted her witness statement dated 10th November, 2020 as
her evidence in chief. She also relied on the documents filed with the response. According her, the claimant was paid a consolidated salary and was subject to statutory deductions. Further, the claimant’s dues were paid upon termination.
7. In cross-examination she stated that she joined the
respondent in June, 2019 hence was not in employment when the claimant was terminated. According to her, the claimant was terminated on account of theft and negligence of duty. It was her evidence that there was no investigation report before the court. The claimant was subjected to a disciplinary hearing. He was prior to that issued with a notice to show cause. The show cause and the minutes of the disciplinary hearing were however not before the Court. She stated that she was handed over the claimant’s file when she got employed. Regarding leave, it was her evidence that the claimant went on leave and that the claimant’s basic pay was Kshs. 80,000/- and no allowances were provided for. RW1 further did not produce the claimant’s letter of appointment.
8. In re-examination she stated that the records she produced
were true records kept by the respondent and that statutory deductions were remitted.
9. The Employment Act apportions the responsibility between
the employee and an employer in a claim for unfair termination. The employer is required to prove the reason for termination while the employee is required to show that an unfair termination took place. The responsibilities here are mutually exclusive and failure by one to discharge their legal burden, does not exonerate the other from their responsibility.
10. The claimant alleged in his statement of claim that his
dismissal from employment was abrupt, unprocedural and unfair. He however stated that there was a theft incident at his place of work on 8th May, 2019 where he was summoned by the HRM who interrogated him together with his colleagues. Two days later he was invited for a hearing on telephone and the hearing took place on 15th May, 2019. The claimant was thereafter summarily dismissed. The claimant further in his evidence before the Court conceded that a lot of theft used to occur at his place of work and that prior to the 2019 incident, he had been implicated in an earlier one in 2017.
11. The respondent on the other hand concurred that there were
incidents of theft at his premised and the claimant and his
colleagues had more than once been implicated. It was common ground that the claimant was called for a disciplinary hearing and attended at the conclusion of which the claimant was summarily dismissed.
12. An allegation of involvement in theft is a valid ground for
summary dismissal hence the respondent under the circumstances presented to the Court and conceded by the claimant, was justified in summarily dismissing him. The claim for unfair termination is therefore found unmerited and is hereby dismissed.
13. The claimant prayed for payment one month’s salary in lieu
of leave not taken. The claimant further sought to be paid
house allowance for the period he worked for the respondent. The respondent did not provide any evidence to rebut these claims.
14. Section 10(6) and (7) of the Employment Act, 2007
requires that an employer keeps employment records and under subsection 7, if in any legal proceedings an employer fails to produce a written contract or the written particulars prescribed in subsection (1) the burden of proving or disproving an alleged term of employment stipulated in the contract shall be on the employer.
15. The respondent’s witness Ms. Nelima did not produce any
evidence before the court to refute the claimant’s claim for leave not taken and to show that the salary the claimant earned was consolidated hence included the housing allowance factor. These prayers will therefore be allowed. The claim for service will however be rejected since the claimant showed the claimant was registered to NSSF. Industry practise places the house allowance at 1/3 of an employee’s basic pay.
16. In conclusion the Court awards the claimant as follows:
Kshs.
i) Salary for 23 days worked
( as per termination letter)………………… 61,000
ii) House allowance (82 months @ 1/3
salary per month) ………………………….2,214,000
iii) Leave allowance ………………………………….80,000
TOTAL 2,355,000
iv) Items i), ii) and iii) shall be subject to taxes and statutory deductions but attract interest at court rates from date of judgment until payment in full.
v) The claimant shall further have costs of the suit.
17. It is so ordered.
Dated at Nairobi this 5th day December, 2023
Delivered virtually this 5th day of December, 2023
Abuodha Nelson Jorum
Judge
i) On or about July 2012, the Respondent employed the services of the Claimant as a Logistics Coordinator at its company located along Garden Estate Road, off Thika Road, based at their office in Marurui Yard in Nairobi earning a salary of Kshs.80,000/- per month. The Claimant has a copy of the Respondent’s Recommendation Letter proving the said employment marked ‘A’.
ii) THE Claimant commenced employment as aforesaid and served the Respondent with loyalty and diligence until May 2019 when the Respondent wrongfully and unlawfully Terminated his employment and did not follow due process and further failed to pay his terminal dues which are tabulated below:-s..
The Claimant was in employment from July 2012to on or about May 2019 [ 6.92 years) as a Logistics Coordinator at the Respondent’s premises earning a monthly salary of Kshs. 80,000/=;
a) Notice Pay
b) Leave Days (80,000 x ] ]
c) House allowance! 15/100 x 80,000 x 6.92 xl 2 )
d) Service Pay(46,154/26 x 6.92)
e) Unfair Termination (80,000 x 12}
TOTAL
iii) THE Claimant Claim against the Respondent is for Kshs. 2,137,692.00 hereinabove plus costs and interest of the suit.
iv) On or about 8th May, 2019, there was a theft that occurred at the Respondent’s office premises whereby the Claimant was summoned by the Human Resource Manager who interrogated him together with his colleagues. Two days later, he was invited for a “hearing" on the phone which hearing took place on 15th May 2019 at Garden Estate office. In attendance were the Human Resource Manager Mary Karanja, her assistant Micah Kimeli, Safety Manager Mr. Anthony Chirchir, Legal Advisor Ms. Irene and the Claimant. On 23rd May 2019, the Claimant later received Summary Dismissal Letter which the company kept but he obtained a copy by taking a photo of it.
v) THE above meeting was wrongly constituted as the Claimant had no representative at the meeting neither was he given a chance to bring one. Furthermore, the said meeting was merely an interrogation panel as the Claimant was not given a chance to ventilate his case and therefore the decision to summarily dismiss him was unlawful and unfair as it has no legal basis.
vi) THE Respondent's action of terminating the Claimant's employment was abrupt, un-procedural and amounted to unfair termination.
vii) THE Claimant avers that the Respondent never provided him with a housing facility neither was he paid for the same.
2. The Respondent filed its defence on 18th December, 2019 and
averred inter alia
a) The Respondent denies the contents of paragraphs 4 of the Memorandum of Claim and in particular the claimant’s claim amounting to Kshs. 2, 137, 692.00 and puts the claimant to strict proof thereof of anything to the contrary.
b) The Respondent denies the contents of paragraphs 4 of the Memorandum of Claim and in particular the claimant’s claim amounting to Kshs.2,137,692.00 and puts the claimant to strict proof there of anything to the contrary.
c) ln response to paragraph 10 of the Memorandum of Claim, the Respondent states that the Claimant utilized all his leave days (if any) with full pay and (if any) were paid. The claimant is put to strict proof thereof of anything to the contrary.
d) The Respondent denies the contents of paragraph 11 of the Memorandum of Claim and puts the claimant to strict proof of anything to the contrary. All the reasons listed therein purporting to amount to acting unprocedurally, unfairly and in breach of the provisions of the Employment Act and Constitution arc denied.
EVIDENCE
3. At the trial the Claimant (CW1) adopted his witness Statement filed on 26th September, 2019 and the documents
filed with the claim as his evidence in chief and exhibits.
4. In cross-examination he stated that he was the logistics
coordinator and worked from 2012 to 2019. It was his
evidence that a lot of theft used to happen at the respondent’s premises and that he could remember the incident of 2017. It was further his evidence that he knew one Edward Ochieng. That they used to work together in Mombasa. He further stated that he was suspended in 2017 for two days. He thereafter resumed work and worked normally.
5. The claimant further stated that he remembered the incident
of 8th May, 209 and that he was not alone. Jane and Njoroge
were his colleagues. He was interrogated over the incident of
8th May, 2019 and was told he would be called back but was
never called. He instead received a termination letter. He
further stated that he got an SMS about a disciplinary
hearing to take place on 15th May, 2019. This was four days
away. The hearing took place as scheduled and according to
him, he was unfairly terminated.
In re-examination he stated that he was not to blame for the 2019 theft but in a different department he had been charged with theft. There was no investigation report implicating him. Further, he was never asked to come with a colleague to the disciplinary hearing. Upon termination, he was never paid his terminal dues.
6. The respondent’s witness Ms. Vivian Nelima stated that she
was the legal officer of the respondent and that she knew the
claimant as a former employee of the respondent. She
adopted her witness statement dated 10th November, 2020 as
her evidence in chief. She also relied on the documents filed with the response. According her, the claimant was paid a consolidated salary and was subject to statutory deductions. Further, the claimant’s dues were paid upon termination.
7. In cross-examination she stated that she joined the
respondent in June, 2019 hence was not in employment when the claimant was terminated. According to her, the claimant was terminated on account of theft and negligence of duty. It was her evidence that there was no investigation report before the court. The claimant was subjected to a disciplinary hearing. He was prior to that issued with a notice to show cause. The show cause and the minutes of the disciplinary hearing were however not before the Court. She stated that she was handed over the claimant’s file when she got employed. Regarding leave, it was her evidence that the claimant went on leave and that the claimant’s basic pay was Kshs. 80,000/- and no allowances were provided for. RW1 further did not produce the claimant’s letter of appointment.
8. In re-examination she stated that the records she produced
were true records kept by the respondent and that statutory deductions were remitted.
9. The Employment Act apportions the responsibility between
the employee and an employer in a claim for unfair termination. The employer is required to prove the reason for termination while the employee is required to show that an unfair termination took place. The responsibilities here are mutually exclusive and failure by one to discharge their legal burden, does not exonerate the other from their responsibility.
10. The claimant alleged in his statement of claim that his
dismissal from employment was abrupt, unprocedural and unfair. He however stated that there was a theft incident at his place of work on 8th May, 2019 where he was summoned by the HRM who interrogated him together with his colleagues. Two days later he was invited for a hearing on telephone and the hearing took place on 15th May, 2019. The claimant was thereafter summarily dismissed. The claimant further in his evidence before the Court conceded that a lot of theft used to occur at his place of work and that prior to the 2019 incident, he had been implicated in an earlier one in 2017.
11. The respondent on the other hand concurred that there were
incidents of theft at his premised and the claimant and his
colleagues had more than once been implicated. It was common ground that the claimant was called for a disciplinary hearing and attended at the conclusion of which the claimant was summarily dismissed.
12. An allegation of involvement in theft is a valid ground for
summary dismissal hence the respondent under the circumstances presented to the Court and conceded by the claimant, was justified in summarily dismissing him. The claim for unfair termination is therefore found unmerited and is hereby dismissed.
13. The claimant prayed for payment one month’s salary in lieu
of leave not taken. The claimant further sought to be paid
house allowance for the period he worked for the respondent. The respondent did not provide any evidence to rebut these claims.
14. Section 10(6) and (7) of the Employment Act, 2007
requires that an employer keeps employment records and under subsection 7, if in any legal proceedings an employer fails to produce a written contract or the written particulars prescribed in subsection (1) the burden of proving or disproving an alleged term of employment stipulated in the contract shall be on the employer.
15. The respondent’s witness Ms. Nelima did not produce any
evidence before the court to refute the claimant’s claim for leave not taken and to show that the salary the claimant earned was consolidated hence included the housing allowance factor. These prayers will therefore be allowed. The claim for service will however be rejected since the claimant showed the claimant was registered to NSSF. Industry practise places the house allowance at 1/3 of an employee’s basic pay.
16. In conclusion the Court awards the claimant as follows:
Kshs.
i) Salary for 23 days worked
( as per termination letter)………………… 61,000
ii) House allowance (82 months @ 1/3
salary per month) ………………………….2,214,000
iii) Leave allowance ………………………………….80,000
TOTAL 2,355,000
iv) Items i), ii) and iii) shall be subject to taxes and statutory deductions but attract interest at court rates from date of judgment until payment in full.
v) The claimant shall further have costs of the suit.
17. It is so ordered.
Dated at Nairobi this 5th day December, 2023
Delivered virtually this 5th day of December, 2023
Abuodha Nelson Jorum
Judge