[2018] KEELRC 1904 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA

AT NAIROBI

CAUSE NO. 1976 OF 2012

MOSES OMANGI NYAKUNDI...................................CLAIMANT

VERSUS

METROPOLITAN HOSPITALS LIMITED.........RESPONDENT

(Before Hon. Justice Byram Ongaya on Thursday 31st May, 2018)

JUDGMENT

The claimant filed the memorandum of claim dated 18. 09. 2012 through Onyanja Nyakundi & Company Advocates. The claimant prayed for judgment against the respondent for:

a) A declaration that that the claimant’s dismissal was wrongful, unlawful, unfair and unjust and the claimant is entitled to reinstatement into the job.

b) In alternative the respondent to pay the claimant a sum of Kshs. 396, 550. 00 being Kshs.17,000. 00 pay in lieu of termination notice; severance pay Kshs. 55, 566. 00; 12 months’ pay in compensation Kshs. 204, 000. 00; and savings in the hospital Sacco Kshs.119, 984. 00.

c) Other reliefs as the Court considers appropriate in the circumstances.

The response to claim and counterclaim was filed on 12. 11. 2012 through Wachira Ndungu & Company Advocates. The respondent prayed for dismissal of the claimant’s claim with costs and for:

a) Judgment against the claimant for Kshs.858, 000. 00.

b) An offset against any sum found entitled to the claimant.

c) Interest on (a) above at court rates.

d) Costs of the claim and counterclaim.

It is not in dispute that the respondent employed the claimant in March 2004 and the claimant worked as a pharmacy assistant up to the time of dismissal. At dismissal the claimant’s monthly pay was Kshs.17, 000. 00.

The hearing date was fixed in Court by consent of the parties. The claimant and the claimant’s counsel failed to attend the hearing as fixed on 09. 05. 2018 and the hearing proceeded ex-parte.

The respondent’s witness (RW) was one David Ndegwa Mwaniki, the respondent’s credit controller. He testified that on 21. 03. 2011 at about 5pm RW together with other staff randomly counted drugs at the respondent’s establishment as part of stock management. The following day on 22. 03. 2011 in the morning they counted the same stocks of drugs and discovered that the drugs were less than the previous evening’s count. They reconciled the stocks with the computer record on the walk-in patients as per daily prescriptions. It was discovered that there were no matching receipts as per the walk-in patients. The list was printed and given to the claimant to explain the discrepancies.

The following day 23. 03. 2011 the claimant stated that he had not cross checked and reconciled the matter because he had been absent to sit for examinations and he had not been able to come back to the office because transport had been interrupted due to some striking students who had blocked the roads. Some of the drugs in issue were prescription drugs such as antibiotics and that aggravated the case against the claimant.

RW testified that the case was reported to the respondent’s Chief Executive Officer and a decision was made to suspend the claimant. The suspension letter was dated 23. 03. 2011 and it was on account of non compliance with the dispensing requirements, pharmacy policy and loss of drugs. The letter stated in part, “It has come to management’s notice that you have failed to follow these rules on several occasions, dispensing antibiotics over the counter without doctor’s prescription and the dispensed drugs have no system proof for payment.”

The claimant was suspended infinitum without pay pending investigations.

RW’s evidence was that in total the respondent’s loss attributable to the claimant was in the sum of Kshs. 843, 427. 00. The claimant subsequently resigned from employment as per his letter dated 06. 09. 2011.

The Court has considered the material on record and makes the following findings on the matters in dispute:

1) While serving the suspension, the claimant opted to resign from the respondent’s employment. The Court returns that the claimant is thereby precluded from alleging unfair or unlawful termination. In any event he offered no evidence to establish his claims. The claimant offered no evidence to justify his prayers. The claimant’s case will therefore fail.

2) The respondent has counterclaimed for Kshs. 858, 000. 00 being loss attributable to the claimant’s misconduct. RW’s evidence was that the claimant failed to account for drugs in issue from 01. 01. 2011 to 22. 03. 2011. It was about that loss that the respondent suspended the claimant from duty. The claimant was given a chance to account but he decided not to render the account. Instead he opted to resign from employment. The respondent filed the computer printout for the period in issue and a summary of the week by week analysis showing that the loss attributable to the claimant was Kshs. 853, 427. 00. The claimant failed to file a response to counterclaim. He is deemed to have admitted the counterclaim. Further, the computer print out together with the analysis were served but the claimant opted not to say a thing in opposition to the respondent’s evidence. The Court returns that on a balance of probability, the respondent has established the counterclaim in the sum of Kshs. 853, 427. 00.

In conclusion, judgment is hereby entered for the respondent against the claimant for:

a) The claimant to pay the respondent the sum of Kshs. 853, 427. 00by 01. 08. 2018 failing interest at court rates be payable thereon from the date of this judgment till full payment.

b) Dismissal of the claimant’s case with costs

c) The claimant to pay the respondent’s costs of the counterclaim.

Signed, datedanddeliveredin court atNairobithisThursday 31st May, 2018.

BYRAM ONGAYA

JUDGE