[2019] KEELRC 1144 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT & LABOUR RELATIONS COURT OF KENYA AT NYERI

CAUSE NO. 56 OF 2017

DAVID WANGONDU MUIRURI........................................................CLAIMANT

VERSUS

MT. KENYA BOTTLERS LIMITED.....................................1ST RESPONDENT

THE HON. ATTORNEY GENERAL....................................2ND RESPONDENT

JUDGMENT

1. The Claimant sued the Respondents seeking resolution of a dispute he framed as the wrongful termination of employment and refusal to pay terminal benefits. He averred that he was employed as a driver by the 1st Respondent and was suspended on 18th November 2014 for alleged theft of fuel while driving motor vehicle KBL 515K. He averred that security officers of the 1st Respondent found 40 litres of fuel in the car while he was facilitating the collection of fuel for forklifts in the company of the store clerk Monica N. Mwaniki. He averred that on 6th October 2014 he was arrested by the 1st Respondent and handed over to the 2nd Respondent and arraigned in court where he was charged which charges were terminated in his favour on 23rd March 2016. He averred that he was summarily dismissed on 14th January 2015 and he therefore sought payment of one-day leave for 2014, leave allowance for 2014, 15 days salary for January 2015, outstanding pension dues per the pension scheme rules, 3 month’s basic salary in lieu of notice per the memorandum of agreement between the Respondent and KUCFAW as well as a certificate of service and general damages for malicious prosecution.

2. The 1st Respondent in its defence averred that on 6th October 2014 while the Claimant was exiting the 1st Respondent’s premises to undertake his duties as driver, the Claimant was found in unauthorized possession of about 40 litres of super petrol which he had not declared as having in the motor vehicle which he was driving. The 1st Respondent averred that the Claimant was unable to justify why he was in possession of the petrol prompting it to report the suspected theft of its property to the Police and that thereafter the Claimant was arrested and arraigned in court on 8th October 2014 where he was charged with stealing. The 1st Respondent averred that it took its own administrative action against the Claimant and suspended him from work with half pay pending investigations and that the investigations revealed that the Claimant was culpable of gross misconduct. The 1st Respondent averred that it issued the Claimant with a show cause letter requiring him to respond and thereafter invited him to a disciplinary hearing conducted on 11th December 2014. The 1st Respondent averred that it summarily dismissed the Claimant for gross misconduct effective 15th January 2015. The 1st Respondent averred that the Claimant was acquitted on 23rd March 2016 and the union sought the reinstatement of the Claimant which the 1st Respondent declined to do. It averred that it however acquiesced to reduction of the summary dismissal to normal termination and a computation of the 3 months’ notice pay was done but the Claimant failed to collect the dues amounting to Kshs. 91,704/-. The 1st Respondent averred that the Claimant was entitled to the payment of one-day leave earned but not taken, leave allowance for 2014, 15 days salary for 2015 and nothing else. The 1st Respondent averred that it paid the Claimant his pension and therefore the suit was fit for dismissal.

3. The 2nd Respondent in its defence denied that the Claimant was falsely or maliciously prosecuted. The 2nd Respondent averred that the prosecution was undertaken pursuant to reasonable and justifiable or probable cause and in execution of the statutory duties of the 2nd Respondent and as such was lawful and procedural. The 2nd Respondent averred that the reliefs sought by the Claimant against it were untenable and an abuse of the court hence the suit should be dismissed with costs.

4. The Claimant and the 1st Respondent’s witness Timothy Mwinzi Muthini testified on similar lines as their pleadings. The Claimant asserted that his dismissal was unlawful and without any basis as he was acquitted of the charges he faced. The 1st Respondent’s witness reiterated that the dismissal was justified as there was reason for the dismissal of the Claimant and that he was taken through the disciplinary process before the dismissal.

5. The parties filed submissions and in his submissions the Claimant submitted that it was not disputed that the 1st Respondent was the complainant against the Claimant and that the 2nd Respondent having failed to avail any witness the evidence against it remained uncontroverted. He cited the case of Stephen Gachau Githaiga vMargaret Wambui Weru [2015] eKLRwhere the court held that where no evidence is tendered by a respondent on how the decision to arrest and charge the plaintiff was arrived at the court has no option but to find there was no justifiable or reasonable cause. He relied on the case of Naqvi Syedomar vParamount Bank Limited &Another [2015] eKLRwhere Rika J. held that the dismissal was malicious and granted the bad press the claimant had faced merits an award of general damages for defamation. The Claimant therefore submitted that in line with the decision in Michael Gitau Njoroge vBoard of Management Afya Yetu Initiative [2015] eKLRhe was entitled to a finding in his favour. He submitted that the pension dues were paid in part and the balance was not settled hence the prayer for the same. He urged a grant of the prayers in his claim.

6. The 1st Respondent submitted that there were valid reasons for termination and citing the case of Kenya Power &Lighting Company Limited vAggrey Lukorito Wasike [2017] eKLRwhere the Court of Appeal held that the onus placed on an employer under Section 43 of the Employment Act is partly subjective as an employer is required to prove the reasons the employer genuinely believed to exist causing him to terminate the employee’s services. The 1st Respondent submitted that the Claimant was accorded a fair hearing and that the Claimant was not maliciously prosecuted. It cited the case of Mbowa vEast Mengo District Administration [1972] EA 352where the East African Court of Appeal held a prosecution to be malicious if the same was for spite and not public benefit, was without probable cause, the initiation of the prosecution must have been for an improper motive meaning the intention was to use the legal process for some other reason other than its legally appointed and appropriate purpose. The 1st Respondent submitted that the elements must all unite for one to show there was malicious prosecution. The 1st Respondent submitted that the Claimant was genuinely suspected of having been involved in the theft of fuel from the 1st Respondent’s premises as he was the driver of the vehicle ferrying the stolen fuel and that it had a probable and justifiable cause to report the matter to the Police who initiated the prosecution against the Claimant after investigations. The 1st Respondent submitted that the Claimant was only entitled to the dues it had ceded were available upon commutation of the summary dismissal to normal dismissal and no more. It submitted that the Claimant had failed to collect the sums due despite invitation to do so. The 1st Respondent submitted that it was not responsible for pension payments as those were in the hands of a retirement fund manager under the pension scheme rules. The 1st Respondent submitted that the court should apply the range of reasonable responses as held in the case of Rueben Ikatwa &17 Others vCommanding Officer, British Army Training Unit Kenya &Another [2017] eKLR where the Court of Appeal citing with approval the decision in CFC Stanbic Bank Limited vDanson Mwashako Mwakuona [2015] eKLRreiterated the Halisbury’s Laws of England, 4th Edition Vol. 16(1B) para 642where it provides “In adjudicating on the reasonableness of the employer's conduct, an employment tribunal must not simply substitute its own views for those of the employer and decide whether it would have dismissed on those facts; it must make a wider inquiry to determine whether a reasonable employer could have decided to dismiss on those facts. The basis of this approach (the range of reasonable responses test) is that in many cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view and another quite reasonably take another; the function of a tribunal as an industrial jury is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band, the dismissal is fair; but if the dismissal falls outside the band, it is unfair.”

7. The 2nd Respondent submitted that the Claimant had not proved the charge of malicious prosecution alleged against it. The 2nd Respondent cited the case of Maurice Owino Onyango vMusic Copyright Society of Kenya [2015] eKLRand submitted that there were 4 elements to be proved for the tort of malicious prosecution to succeed. The 4 elements were enumerated as

(a) The plaintiff must show that the prosecution was instituted by the defendant, or by someone for whose acts he is responsible

(b) That the prosecution was terminated in the plaintiff’s favour

(c) That the prosecution was instituted without reasonable and probable cause

(d) That the prosecution was actuated by malice

The 2nd Respondent submitted that the 4 elements were lacking and that the prosecution was not therefore malicious. It cited the case of Mbowa vEast Mengo District Administration [1972] EA 352 where the East Africa Court of Appeal held that the plaintiff, in order to succeed, has to prove that the four essentials or requirements of malicious prosecution, as set out above, have been fulfilled and that he has suffered damage. In other words, the four requirements must “unite” in order to create or establish a cause of action. If the plaintiff does not prove them he would fail in his action. The 2nd Respondent submitted that the Claimant had failed to prove there was malicious prosecution.

8. The Claimant was dismissed on suspicion of participation in the theft of fuel at the employer’s premises. The Claimant was subsequently dismissed after hearing and was also charged in a court of law where he was ultimately acquitted. The 1st Respondent in my view had a reasonable basis for the dismissal as the Claimant was found driving a vehicle with stolen fuel hidden in jerrycans. He was therefore dismissed for just cause in terms of Section 43 of the Employment Act. He was accorded a hearing that complied with Section 41 and his prosecution though one that resulted in acquittal was not malicious as demonstrated. He did not prove that the 2nd Respondent was malicious in the prosecution as no scheme was revealed where the Claimant was targeted in an illegal enterprise to falsely accuse him of the theft of fuel. The charges were reasonable and based on the probable cause revealed by the search of the vehicle he was driving. The Claimant’s summary dismissal was reduced to normal termination and he was therefore entitled to receive the payment of the 3 months’ notice which was Kshs. 91,704/-, one-day leave due, the 15 days worked in January 2015 and the pension he had earned. The pension payments were made and all that remained was the terminal dues he was entitled to. He is therefore entitled to a judgment against the 1st Respondent for:-

i. Kshs. 91,704/- 3 months’ notice

ii. Kshs. 16,303/- being 15 days worked and one-day leave

Each party to bear their own costs.

It is so ordered.

Dated and delivered at Nyeri this 11th day of July 2019

Nzioki wa Makau

JUDGE

I certify that this is a

true copy of the Original

Deputy Registrar