[2025] KEELRC 940 (KLR)

Oriyo v Adsite Limited (Cause 452 of 2018) [2025] KEELRC 940 (KLR) (27 March 2025) (Judgment)

Neutral citation: [2025] KEELRC 940 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 452 of 2018

L Ndolo, J

March 27, 2025

Between

Patrick Shikuku Oriyo

Claimant

and

Adsite Limited

Respondent

Judgment

1. The Claimant commenced his claim against the Respondent by a Memorandum of Claim dated 3rd April 2018. The Respondent responded by a Memorandum of Defence dated 25th April 2018.

2. The matter went to full trial where the Claimant testified on his own behalf with the Respondent calling its Director and Chief Executive Officer, Samri Shah. Thereafter, the parties filed written submissions.

The Claimant’s Case 3. The Claimant states that he was employed by the Respondent as a driver, in January 2017. He worked as such until 15th February 2018, when he was summarily dismissed. He states that the dismissal was wrongful and unfair, pointing out that he was not subjected to any disciplinary process.

4. In response to a demand letter from the Claimant’s Advocates, the Respondent’s Advocates sent a letter dated 21st February 2018 to the Claimant, inviting him to a disciplinary hearing on 1st March 2018. In response, the Claimant wrote a letter dated 26th February 2018, declining the invitation for a disciplinary hearing, on the basis that his employment had already been terminated and he was therefore under no obligation to attend the purported disciplinary hearing.

5. The Claimant’s case is that the termination of his employment was unlawful and unfair. He cites the following particulars in this regard:a.Failing to give any valid reason for termination;b.Failing to give a prior notice of at least one month;c.Acting contrary to and in breach of the rules of natural justice;d.Failing to act fairly in the circumstances.

6. The Claimant seeks the following remedies:a.A declaration that that the termination of his employment was wrongful and unfair;b.Kshs. 312,000 being 12 months’ salary in compensation;c.Kshs. 26,000 being 1 month’s salary in lieu of notice;d.Kshs. 16,250 being salary for 15 days worked in February 2018;e.Kshs. 21,000 for unpaid leave days;f.Kshs. 50,700 being unpaid house allowance;g.Certificate of service;h.Costs plus interest.

The Respondent’s Case 7. In its Memorandum of Defence dated 25th April 2018, the Respondent states that the Claimant began working for it, as a driver, in the month of April 2017.

8. According to the Respondent, the Claimant had received various verbal warnings due to his persistent failure to comply with the express terms and conditions of his employment.

9. The Respondent maintains that the termination of the Claimant’s employment was justifiable and fair. The Claimant is accused of violently attacking his supervisor, Ankit Patel.

10. It is alleged that on 15th February 2018, while Ankit Patel was carrying out his duties of managing and supervising fuel consumption of motor vehicle registration number KBY 841R, the Claimant attacked him in a bid to prevent him from adjusting the motor vehicle trip system.

Findings and Determination 11. There are two (2) issues for determination in this case:a.Whether the Claimant’s dismissal was lawful and fair;b.Whether the Claimant is entitled to the remedies sought.

The Dismissal 12. The Claimant was summarily dismissed by letter dated 15th February 2018, stating as follows:“Dear Patrick,Re: Summary Dismissal LetterThis letter is to notify you that you have been relieved of your duties with effect from 15th February 2018 due to Violent conduct towards another employee. Adsite Limited has a strict policy for such behavior and will not be tolerated.Upon accepting, acknowledging and signing this letter, on 19th February 2018 you will be paid your full and final dues in accordance to law and the necessary deductions required to be made.Please ensure that you handover the below Company property entrusted to your care to your Supervisor:1. Company documentation2. Sufficient handover notes(signed)Samir ShahAdsite Limited”

13. This letter accuses the Claimant of violent conduct towards a fellow employee. From the evidence on record, there was a disagreement between the Claimant and Ankit Patel on 15th February 2018, regarding the trip system in the motor vehicle assigned to the Claimant.

14. The parties however gave conflicting accounts on the nature and extent of the disagreement, with the Respondent alleging an attack by the Claimant against Patel and the Claimant accusing Patel of attempting to manipulate the trip system.

15. This conflict would have been resolved had the Claimant been subjected to disciplinary proceedings in line with Section 41 of the Employment Act, which provides as follows:41. (1)Subject to Section 42(1) an employer shall, before terminating the employment of an employee on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during the explanation.(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.

16. In its decision in Pius Machafu Isindu v Lavington Security Guards Limited [2017 eKLR the Court of Appeal restated the mandatory requirement for procedural fairness established under the Employment Act, in the following terms:“There can be no doubt that the Act, which was enacted in 2007, places heavy legal obligations on employers in matters of summary dismissal for breach of employment contract and unfair termination involving breach of statutory law. The employer must prove the reasons for termination/dismissal (section 43); prove the reasons are valid and fair (section 45); prove that the grounds are justified (section 47(5)), amongst other provisions. A mandatory and elaborate process is then set up under section 41 requiring notification and hearing before termination.”

17. From the evidence on record, it is clear that the Respondent chose not to subject the Claimant to any disciplinary proceedings, prior to dismissing him. Instead, the Respondent adopted an unusual procedure that is not known in law.

18. In response to a demand letter issued by the Claimant’s advocates on 15th February 2018, the Respondent’s Advocates wrote a return letter dated 22nd February 2018, stating that a disciplinary process against the Claimant was ongoing.

19. Attached to the letter from the Respondent’s Advocate was a notice to show cause dated 21st February 2018, requiring the Claimant to appear before the Respondent’s General Manager on 1st March 2018. The Court was disturbed by the action taken by the Respondent in this regard. Once a person exits employment, the employment relationship terminates and the employer loses disciplinary control, meaning that no summons to attend a disciplinary hearing can issue.

20. The letter dated 21st February 2018 was therefore of no consequence and the Claimant was under no obligation to respond to it. What is more, there was no basis for him to appear for the purported disciplinary hearing fashioned by the Respondent.

21. Flowing from the foregoing findings, I have reached the conclusion that the allegations levelled against the Claimant, which led to his summary dismissal, were not proved at the shop floor as required in law. Consequently, I find and hold that the Claimant’s dismissal was wrongful and unfair.

Remedies 22. I therefore award him three (3) months’ salary in compensation. In making this award, I have considered the Claimant’s length of service and the Respondent’s failure to avail him an opportunity to be heard prior to the dismissal.

23. I further award the Claimant one (1) month’s salary in lieu of notice.

24. The Respondent did not adduce any evidence to prove payment of the Claimant’s salary for 15 days worked in February 2018 and accrued leave days. These claims therefore succeed and are allowed.

25. According to the pay slips filed by the Claimant, he was paid a basic salary, without a housing element as required under Section 31 of the Employment Act. I will therefore allow the claim for house allowance and adopt the resultant consolidated figure of Kshs. 29,900 as the Claimant’s monthly salary for purposes of tabulation of this claim.

26. Finally, I enter judgment in favour of the Claimant as follows:a.3 months’ salary in compensation…………………….Kshs. 89,700b.1 month’s salary in lieu of notice……………………………….29,900c.Salary for 15 days worked in February 2018………………14,950d.Leave pay for 15 days………………………………………………..14,950e.House allowance for 10 months………………………………..39,000Total………………………………………………………………………188,500

27. This amount will attract interest at court rates from the date of judgment until payment in full.

28. The Claimant is also entitled to a certificate of service plus costs of the case.

29. Orders accordingly.

DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF MARCH 2025LINNET NDOLOJUDGEAppearance:Mr. Malanga for the ClaimantMr. Wachira for the Respondent