Kimanthi v African Cotton Industries Limited (Cause 769 of 2012) [2014] KEIC 154 (KLR) (30 June 2014) (Judgment)

Kimanthi v African Cotton Industries Limited (Cause 769 of 2012) [2014] KEIC 154 (KLR) (30 June 2014) (Judgment) Simon Yolle Kimanthi v African Cotton Industries Limited [2014] eKLR Neutral citation: [2014] KEIC 154 (KLR) Republic of Kenya In the Industrial Court at Nairobi Cause 769 of 2012 Nzioki wa Makau, J June 30, 2014 Between Simon Yolle Kimanthi Claimant and African Cotton Industries Limited Respondent Judgment 1.The Claimant sued the Respondent for the unlawful and unfair dismissalfrom employment with the Respondent and failure to pay full terminalbenefits. The Claimant averred that he was employed as a generallabourer on 2nd November 2006 a position held until promotion to amachine attendant in April 2009. He averred that he worked diligently andto the satisfaction of the Respondent. The Claimant was asked to leavethe company on 15th October 2011 and the guards instructed not to allowhim into the premises. The Claimant avers the Respondent’s actionsamounted to a summary dismissal and no charges were framed by theRespondent to warrant a dismissal in this manner. He thus sought adeclaration that his termination was unlawful, unfair and inhumane andthat he is entitled to the payment of one month’s salary as notice, ayment in lieu of leave days not taken, service for 4 years at the rate of18 days for every completed year, compensatory damages, costs plusinterest. 2.The Respondent filed a Memorandum of Response and averred that theClaimant was on 15th October 2011 found with 22 rolls of toilet papersbelonging to the Respondent. The Claimant was asked why he wasleaving the company premises with company property without permissionand he did not have any explanation. He was given a show cause noticewhy disciplinary action should not be taken against him. The Claimant didnot return for the disciplinary process the next day and he was notdismissed but left never to return. 3.The Claimant testified before the Court and reiterated his averments. Hetestified that the Respondent had no reason to terminate and that he wasnot given a letter of termination but asked to leave the premises. TheRespondent called the Security Guard who is stated to have been at theRespondent’s gate. The guard testified that the Claimant was found with22 rolls of tissue wrapped around his body. The second defence witnesswas the HR manager of the Respondent who testified that he received acall from security guards at the gate and the Claimant was said to havebeen found with tissue taped to his body. The offence could attract summary dismissal and the Claimant was given a memo seeking anexplanation but the Claimant did not do so. 4.Parties filed submissions. The Claimant submitted that the Respondenthad a duty to confirm and prove to Court that the reasons for thetermination and secondly that due process was followed in arriving at thedecision to dismiss the Claimant. The Respondent submitted that theClaimant was not dismissed from employment but left and never returnedto face a disciplinary process the next day. The Respondent relied on theunreported case of Isaiah Makokha v Basco Products (K) Ltd CauseNo. 206 of 2013. 5.The issues for determination can be narrowed down to the following:-i. Was the Claimant dismissed from employment?ii. If so was the dismissal fair and lawful?iii. If not, what damages are due? 6.The Claimant alleged in his Claim that he was dismissed by the HumanResources Manager of the Respondent on 15th October 2011. TheRespondent on its part availed two witnesses who testified that theClaimant was found in possession of 22 rolls of tissue taped to his bodyand that the Claimant was asked for an explanation which he was to givethe next day but failed to return. 7.The witnesses for the Respondent were consistent under cross-examination. In the case before me the Claimant was not dismissed fromemployment. The issue of unfairness in the process of dismissal is thusnot due for determination. The Respondent’s HR Manager testified that heasked the Claimant for an explanation and the Claimant was asked to givean explanation within 24 hours why disciplinary action would not be takenagainst him. The Claimant failed to prove dismissal and thus his claimfails. 8.The suit is dismissed but each party to bear their own costs.Orders accordingly. **DATED AND DELIVERED AT NAIROBI THIS 30 TH DAY OF JUNE 2014.****NZIOKI WA MAKAU****JUDGE**