[2019] KEELRC 2602 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

EMPLOYMENT AND LABOUR RELATIONS COURT AT ELDORET

CAUSE NO 38 OF 2017

AGGREY ATEYA MUSANGA......................CLAIMANT

VERSUS

KEN KNIT (K) LTD................................. RESPONDENT

J U D G E M E N T

1. The Claimant pleaded that at all material times he was employed by the respondent and worked until 5th December,2013 when the respondent terminated his services. He was employed in March, 2000. Upon termination the respondent did not pay his terminal dues.

2. The termination according to the Claimant was unlawful because his trade union was not informed of the intention to declare him redundant, no leave pay was given and no one month’s salary in lieu of notice was paid.

3. The Claimant further averred that during his employment with the respondent he was grossly underpaid. The respondent on the other hand pleaded that the Claimant was employed on 21st April, 2002, as a general worker. He was later assigned the duties of a driver assistant (loader).

4. The Claimant was suspended on 6th December,2013 to allow for investigations for fuel loss. The circumstances which led to the Claimant’s suspension were that on 4th December, 2013 he …… his driver Mr. Nyongesa were on transit from Nairobi on vehicle No KBV 907 Tata Canter. They arrived at the factory in Eldoret at 8. 30 pm, packed the vehicle and left the factory.

5. On 5th December, 2013 the Claimant reported to duty at 8. 00 am and started his normal duties as a loader, drove the vehicle from the packing yard to the fuel tank within the compound and proceeded to the stores department to register what they had brought from Nairobi. It was in the process of driving the vehicle from the packing yard to the fuel tank when the Claimant alleged, he met one Mr. Moseti who was also a driver and who gave him two containers and a polythene bag to take to the canteen.

6. The respondent further stated that the vehicle were filled with fuel consumption monetary gadget that determines efficiency of the engine and how fuel is used by a vehicle. Before fueling is done, the previous fuel use is checked by printing out the fuel consumption graph. When the graph of the vehicle KBU 907V was printed out it showed a big deficiency in fuel which connoted siphoning of fuel. The Claimant and his driver Mr. Musinge were consequently summoned to explain the deficiency considering Mr. Moseti the alleged owner of the two jerricans disowned them.

7. The Director and the HR Manager questioned the employees namely the driver (Mr. Nyongesa and the Claimant concerning their stray around the jerricans. Not being satisfied with the explanations the matter was referred to the police for further investigations.

8. The police concluded their investigations and found that the Claimant may have stolen fuel but there was no direct link to make him stand trial.

9. The respondent subsequently wrote to the Claimant in letter dated 15th February, 2014 asking him to report to the office not later than 25th February, 2014 but the Claimant refused. After 25th February, 2014 the respondent used the Claimant’s uncle who had introduced him to the company to ask him to report to work but the Claimant declined.

10. In his oral evidence, the Claimant stated that he was employed in the year 2000 as a knitter on casual terms his salary was Kshs. 2,246/= per week. He was confirmed after three months and his salary raised to Kshs. 9,372/= per month. He worked there for 5 years and was later taken to the loading section.

11. On 5th December, 2013 they travelled to Nairobi to deliver goods. On the way the vehicle was faulty. The driver informed Mr. Ajay about it. From Nairobi they picked more goods to Eldoret. They arrived at around 8. 30pm parked the vehicle and went home. The next day he picked the vehicle to check oil and water. On his way he met Mr. Moseti who asked him to help pick his goods in his vehicle on his way. These were so hire containers and a paper bag. He picked the containers and left them at the canteen later he was questioned about the containers and told to go home.

12. He recorded his statement but was asked to accept he siphoned fuel but he refused. He further stated he used to report to work at 8 am and work until 5pm. According to him turn boys never got leave.

13. On 9th December,2013 the driver called him to go back to work as he had also gone back to work. The personnel officer also called him to go to work but on condition that he admitted that he had siphoned fuel

14. In cross-examination he stated that he was instructed to only carry respondent’s goods. He admitted receiving a letter dated 15th February,2014 asking him to transport to work on 25th February,2014 but he did not report to work. He further stated that he was registered with N.S.S.F.

15. The respondent’s witness Mr. Rebecca Cheluget stated that she was the respondent’s HR Manager. According to her, the Claimant was never terminated.

16. On 2nd December, 2013 the Claimant was on a safari with a driver. It was official duties. The vehicle was KBV 907V. All vehicles had tracking system which tracked movement and fuel. It was noted that there was fuel dropping from the vehicle from the system. The vehicle arrived on 4th at night. On 5th morning the vehicle records were checked on CCTV. It was noted that while the vehicle was on motion, midway to the fuel station, the Claimant removed a luggage and gave it to fellow conductor, Henry, who took the same to the to the respondent’s canteen.

17. She came down with Mr. Shah to see what was removed. They called the Claimant and the driver and Henry to and asked them what was kept at the canteen. They denied keeping anything. They then called Barasa, the security officer and removed everything in the canteen including the polythene bag they saw being given to the Claimant from the CCTV. They found a jerrican containing fuel. They then called the police who arrested the Claimant and his colleagues. They were thereafter suspended pending investigations. The police did not find any incriminating evidence against the Claimant.

18. The respondent therefore called the Claimant back to deliberate on the issue but he never came. Nyongesa (the driver) came and was reinstated.

19. In cross-examination she stated that the Claimant was employed on 21st April, 2002 and his monthly salary was Kshs. 9,372/= plus house allowance of Kshs. 1406/= . According to her, when the Claimant denied having the jerricans they called the police.

20. The respondent’s second witness Mr. Barasa stated that he worked for the respondent as a security officer. At around 10. 00 am he was called by the director to go to the canteen. He found Nyongesa and the director removing things from the Canteen. He joined them and found two jerricans or 20 litres each. They were empty. They also found charcoal sacks. They found on 5 litre jerrican full of diesel. The wanted to know how the fuel got there. The Claimant denied involvement.

21. In cross-examination he stated that whoever brought the jerrican said he was given by the Claimant. He further stated that he did not know he outcome of the police investigation. He further stated that he did not know the outcome of the police investigations.

22. Under Section 43(1) of the Employment Act, in a claim arising out of termination of a contract, the employer shall be required to prove reason or reasons for the termination and where an employer fails to do so a termination shall be deemed unfair. A termination shall be considered unfair if the employer among other fails to prove that the reason for termination to valid.

23. The Claimant herein was accused and suspended on allegations of siphoning fuel from the respondent’s vehicle he was in charge of. The investigations were done by the police and at the conclusion thereof, no evidence was found linking the Claimant with theft of fuel. Guided by this finding, the respondent informed the Court that the Claimant and his colleagues who were suspended were called back to work and reinstated. The Claimant according to the respondent refused to come back despite several efforts to reach him.

24. The Claimant in his evidence before the Court confirmed that he was called by the driver and Personnel Office and told to resume work but on condition that he admitted that he siphoned fuel. The Claimant however did not report back to confirm if indeed it was a requirement that he concedes siphoning fuel before he could be reinstated.

25. The respondent further attached a letter dated 15th February,2014 asking the Claimant to report to the personnel’s Office following the investigations findings on the stolen fuel.

26. As observed earlier in the judgement the burden of proof of reason or reasons for termination is on the employer and a termination would be deemed unfair if the employer fails to prove a reason or reasons for the termination of employment.

27. The decision by the respondent to be guided by the findings of the police that there was no evidence linking the Claimant with the lost fuel and to reinstate the Claimant and his colleagues who were suspended over the incident was an act of admission that the respondent did not have a valid or justifiable reason to terminate the Claimant’s service however the failure or refusal by the Claimant to resume duties mitigated the respondent’s blameworthiness.

28. The court will therefore not return a finding of unfair termination but would order that the Claimant be paid by the respondent as follows: _

Kshs.

(a) One month’s salary in lieu of notice 10,778

(b) Salary for the period in suspension

(6th December, 2013 to 25th February,2014 32,234

43,112

(c) Costs of the suit

29. The Claimant did not adduce sufficient evidence to support the claim for overtime. Further the Claimant was registered for N.S.S.F hence not entitled to claim service pay.

30. It is so ordered.

Dated at Eldoret this 28th day of November, 2019

Abuodha Jorum Nelson

Judge

Delivered this 28th day of November, 2019

Abuodha Jorum Nelson

Judge

In the presence of:-

…………………………………………………………for the Claimant and

……………………………………………………………for the Respondent.

Abuodha J. N.

Judge