REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT MOMBASA
CAUSE NO. E004 OF 2024
STANLEY NYARIBO …………………………………………………..….. CLAIMANT
VERSUS
TECHNICAL UNIVERSITY OF MOMBASA ……………………..… RESPONDENT
JUDGMENT
The claimant is a male adult. The respondent is a public university established under an Act of Parliament. The claimant was employed by the respondent as a transport manager earning Ksh.91, 800 per month plus leave allowance of Ksh.11, 000 per year.
The claim is that on 28 January 2021, the claimant was wrongly accused by the respondent of theft of three tyres, the property of the respondent and he was interdicted. There was no evidence to support such allegations and the claimant offered his explanation about what had happened through his letter dated 24 December 2020 and 12 January 2021. The claimant noted that the respondent had acted reasonably after the driver had abandoned the bus. No disciplinary action was taken against the driver, Japheth Mwadilo but instead, the respondent dismissed him from his employment.
The claimant claimed that this was unfair and not justified and claimed the following;
- 2 months’ notice pay Ksh.183,600;
- 12 months compensation Ksh.1,101,600;
- 12 years worked Ksh.550,800;
- Leave allowances Ksh.11, 000.
- Costs of the suit,
The claimant testified that he was accused by the respondent that he participated in stealing 3 tyres belonging to bus KAY 66V between 18 and 19 December 2020 which was not true. He testified that he left the University premises on the bus with 6 new tyres as indicated at the gate pass. The bus was fitted with 4 new tyres, two front and 2 outer rear. The remaining 2 new tyres were to be fitted on Monday 21st December 2020 but were brought back on the morning of 19 December 2020 following a directive from the Vice Chancellor. The claimant was called to give an account of the 3 tyres by the Vice Chancellor on the night of 18 December 2020 which tyres were left at the security office. Of the 4 only tyres, 2 were at the security office and 2 were fitted in the bus.
The claimant testified that he was accused of allowing Joshua Odalo to drive the bus without proper authorization. He had assigned the work ticket to Japheth Mwadilo for the road test and tyre fitting exercise. During the road test, Mwadilo parked the bus outside Gate B of the university as he went to the office to prepare the gate pass. Joshua Odalo asked for the gate pass and said that he was ready to go.
The claimant testified that he later learnt that in the evening, Joshua Odalo had gone to Kingsway Motors for wheel alignment for the 2 tyres but the driver Japheth Mwadilo did not accompany him. He was therefore surprised to learn of accusations that he abused his office by allowing another person other than the driver to drive the university bus. As the transport manager, he acted reasonably and could not leave the bus outside the university premises.
The claimant testified that he has not been charged with a criminal offence of stealing. Mwadilo the driver who abandoned his duties and the bus was not disciplined. There was malice to protect the bus driver and incriminate him leading to unfair termination of employment.
In response, the respondent admitted that the claimant was an employee and his employment was terminated for a justified cause. The security department submitted a report dated 12 February 2021 about the incident of theft involving the claimant. He was issued with a show cause notice dated 16 February 2021 and he respondent on 24 February 2021. Taking into account the responses to the notice to show cause, on 19 March 2021 the respondent informed the claimant that these were not satisfactory and was invited to attend a disciplinary hearing on 25 March 2021 and his employment was lawfully terminated through a notice dated 20 April 2021.
The claimant appealed and was invited to a hearing but it was rejected through a notice dated 27 May 2021. All pending terminal dues were settled on 16 July 2021.
The claims made are without merit and should be dismissed with costs.
No witness was called. The respondent did not attend the hearing.
At the close of the hearing, the court allowed parties to file written submissions. None were filed.
Determination
On 20 April 2021, the respondent terminated the claimant in his employment because he was found guilty of stealing 3 tyres with his co-accused Mr. Odalo as they both took them out of the university and later failed to account for them. He was also found culpable for allowing Odalo to drive the university bus KAY 666V for the tyre change assignment on 18 December 2021 without approval by signing the work ticket required because the driver of the bus did not sign the handing over/taking over form. The claimant was also found culpable for using his office to commit a crime as he had planned to issue 6 new tyres to the bus when it did not need the same and he wrote on the gate pass and approved it himself hence filling all the documentation to facilitate the committing of the crime. The respondent noted that the university lost 3 tyres valued at Ksh.81, 000.
An employer is allowed to terminate the employment of an employee for gross misconduct through summary dismissal. The legal protections for the employee are to be found under Section 41(2) of the Employment Act, 2007 (the Act). These provisions require that;
(2) Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), make.
The employer should take the employee through the due process. Allow the employee a fair chance to attend and make his representations before another employee of his choice.
In the case of Peter Wangai v Egerton University [2019] eKLR, the court held that the disciplinary proceedings undertaken by the employer are not akin to criminal proceedings. The shop floor motions are conducted per Section 41 of the Act. Where the employee is given a chance to make his representations and on a balance of probabilities, the employer is satisfied that there exists a valid and genuine case of misconduct or gross misconduct, then termination of employment is justified.
This position is reiterated In the case of Sani v JSC (Cause 7 of 2019) [2022] KEELRC that a disciplinary hearing or process should not be turned into a mini-court or criminal trial. Employers are not skilled legal practitioners or draftsmen to warrant a requirement for such a technicality. Whether the claimant was charged in court with a criminal offence or not did not stop the respondent from conducting internal investigations from which, he was issued with a notice to show cause and called to attend a disciplinary hearing. He has not faulted these procedures at all.
The claimant testified at the disciplinary hearing that he allowed another person’s, not authorized to drive the University bus KAY 666V. His defence was that it arose out of necessity after the driver abandoned the bus. He however failed to regularize the documents and necessary returns for the change of who was to drive the bus. As a seasoned employee of the respondent, the claimant should have been fully aware of the documents to be filled in handing over the bus from one driver to the next.
Under the exchange of drivers, the claimant facilitated the movement of bus tyres from the university and failed to account for their return. He cannot blame the employer for genuinely believing that this conduct led to the theft of its property.
As outlined above, the respondent is a public university. Such an entity is accountable and for it, various pieces of documentation are required towards the movement of its property including the bus. The claimant failed to account for the bus, and the tyres in the bus and called to render an account, he gave unsatisfactory responses. The fact that the subject driver Mwadilo was not disciplined was not for the claimant to decide. He was called to explain his particular conduct and was found culpable.
In the above cited case of Sani v JSC (Cause 7 of 2019) [2022] KEELRC, the court held that;
… Employers embarking on disciplinary proceedings, not being skilled legal practitioners, sometimes define or restrict the alleged misconduct too narrowly or incorrectly. For example, it is not uncommon for an employee to be charged with theft and for the evidence at the disciplinary enquiry or arbitration to establish the offence of unauthorised possession or use of company property. The principle in such cases is that provided a workplace standard has been contravened, which the employee knew (or reasonably should have known) could form the basis for discipline, and no significant prejudice flowed from the incorrect characterisation, an appropriate disciplinary sanction may be imposed. It will be enough if the employee is informed that the disciplinary enquiry arose out of the fact that on a certain date, time and place, he is alleged to have acted wrongfully or in breach of applicable rules or standards.
In this case, the case made against the claimant was sufficiently outlined and he failed to exonerate himself. See Anne Wambui Kamuiru v Kenya Airways Cause No. 1684 of 2015, where the Court held that,
There is a convergence in agreement that an employer who commences disciplinary proceedings must ensure due process, fair hearing and due regard to natural justice. The Courts on their part will not interfere with proper internal disciplinary processes unless the Court is satisfied that the process is marred with irregularities or it is stage managed towards dismissal.
In this case, the claimant cannot blame other employees for his gross misconduct. Termination of employment in this case was justified.
Notice pay and compensation is not available to the claimant.
The claim for 12 years worked in not gone into as to what it constitutes. The claimant did not file any written submissions to explain how such a benefit arose.
Leave allowance was part of the employment benefit. The response is that on 16 July 2021, the respondent paid the claimant all his terminal dues. This record is not filed. Upon the full clearance approved on 17 July 2021, the respondent should pay Ksh.11, 000 in annual leave allowance.
Accordingly, the claim is without merit save for the due leave allowance at Ksh.11, 000. The respondent did not attend the hearing. Each party bears its costs.
Orders accordingly.
Delivered in open court at Mombasa this 4th day of July 2024.
M. MBARŨ
JUDGE
In the presence of:
Court Assistant: Japhet Muthaine
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