Anthony Mbugua Kamau v Nairobi City Water and Sewerage Company [2021] eKLR

Key Facts

Issues

• The court examined whether the termination of the Claimant's employment by the Respondent was valid both procedurally and substantively under the Employment Act, 2007, considering if the employer followed fair procedures and had a legitimate reason for dismissal.
• The court assessed whether the Claimant was entitled to the various reliefs sought, including compensation for unfair termination, unpaid salary, severance pay, and other benefits, determining if the termination was lawful and if such claims were justified under Kenyan employment law.

Holdings

• The court dismissed the Claimant's claim for three months' notice pay, as his employment contract explicitly allowed for summary dismissal without notice or payment in lieu.
• The court dismissed the Claimant's request for severance pay, as his termination was not due to redundancy but rather loss of trust and gross misconduct.
• The court determined that the Claimant's summary dismissal by the Respondent was fair and lawful under Section 45 of the Employment Act, 2007. The termination was based on 'loss of trust' due to allegations of bribery and gross misconduct, and the Respondent followed due process as required by Sections 41 and 44(4)(g) of the Employment Act.
• The court dismissed the Claimant's claim for unpaid end-year bonus for six years, as he failed to prove that the bonus was a contractual entitlement.
• The court dismissed the Claimant's claim for unpaid salary from February 2009 to October 2012, ruling that he did not render services during this period and allowing it would result in unjust enrichment.
• The court dismissed the Claimant's request for compensation for unfair termination under Section 49(1) of the Employment Act, as the termination was found to be lawful and not based on misconduct or redundancy.
• The court concluded that the Claimant's entire claim fails in its entirety and dismissed it, with each party bearing their own costs. The judgment was delivered via video conferencing due to COVID-19 restrictions.

Legal Principles

• The court emphasized that the employer (Respondent) had the burden of proof under Section 47(5) of the Employment Act to demonstrate that the termination was lawful and fair. The judgment notes that the Respondent successfully met this burden by providing evidence of the disciplinary process and the Claimant's failure to disprove the allegations.
• The court assessed whether the Respondent followed fair procedures in the disciplinary hearing, including informing the Claimant of the right to be accompanied by a representative. The judgment concluded that the Respondent adhered to the principles of natural justice by providing a fair hearing and allowing the Claimant to defend himself.

Precedent Name

• Givan Okallo Ingari & Another v Housing Finance Company of Kenya Limited
• Mc Kinley v B. C. Tel.
• Michael Maina Nderitu v Kenya Power & Lighting Company
• Banking Insurance Union (K) v Bank of India
• Fina Bank Limited and Spares and Industries Limited
• Attorney General & Another v Andrew Maina Githinji and Another
• Mary Chemweno Kiptui v Kenya Pipeline Company Limited
• Elizabeth Wakanyi Kibe v Telcom Kenya Ltd
• Ga v Makerere University
• Moi Teaching and Referral Hospital v James Kipkonga Kendagor
• Muthuri v National Industrial Credit Bank Limited

Cited Statute

• Employment Act, 2007
• Public Officer's Ethics Act, 2003

Judge Name

Passage Text

• I find that the Respondent did comply with the provisions of Section 41 as read with Section 44(4)(g) of the Employment Act, 2007, clause 23.2 of the employment contract and its Human Resource Manual.
• The Claimant did not front any witness of his own at the hearing to disapprove the allegations levelled against him.
• Having found that the Respondent has proved on a preponderance of evidence that it had a valid reason for dismissing the Claimant and that it followed a fair procedure, the court finds and holds that the Claimant's summary dismissal was fair and lawful within the meaning of section 45 of the Employment Act.