14.In its response, the 1st Respondent denies that it unfairly terminated the Claimant’s contract of service as alleged. The 1st Respondent’s case is that on 4th December 2017, the Claimant deposited Ksh. 9,013.00 instead of Ksh. 90,013.00 on its account held by the 2nd Respondent. This transaction was allegedly processed by an agent of the 2nd Respondent.
15.Although the amount deposited was allegedly Ksh. 9,013.00, the 1st Respondent asserts that the Claimant was issued with a deposit slip showing that he had deposited Ksh. 90,013.00. However, the error was later realized prompting the 2nd Respondent to reverse its agent’s post of Ksh. 90,013.00 and replace it with the correct post of Ksh. 9,013.00. As a result, there was a shortfall of Ksh 81,000.00 in the amount that was supposed to have been deposited by the Claimant on 4th December 2017.
16.The 1st Respondent asserts that the Claimant was asked to account for this shortfall. It is the 1st Respondent’s case that the Claimant admitted having held onto Ksh. 81,000.00 being the cash difference between the amount that he was to have deposited and the amount that he actually deposited on the material day as he waited to see if the error will be detected by the 2nd Respondent’s agent. Believing that the error had gone unnoticed, the Claimant allegedly converted the cash to his personal use.
17.According to the 1st Respondent, when the Claimant was eventually confronted about the loss, he admitted having redirected the funds to his personal ventures. The Claimant allegedly pledged to repay the money. However, he allegedly changed his mind and insisted that the entire Ksh. 90,013.00 had been surrendered to the 2nd Respondent’s agent.
18.The 1st Respondent states that when the Claimant changed his position on the matter, the issue was referred to the police for further investigations. However, before the issue was processed further, the 2nd Respondent settled the matter by paying the 1st Respondent the shortfall.
19.In the 1st Respondent’s estimation, there was a valid reason to terminate the employment relationship between the parties. Further and according to this Respondent, the procedure for terminating the said relation was in accordance with the tenets of due process.
20.The 1st Respondent denies having made unlawful deductions to the Claimant’s salary. It is the 1st Respondent’s case that all deductions it made to the Claimant’s salary were with his express permission and for his own good.
21.The 1st Respondent also denies that the Claimant suffered the injuries that he alleges whilst at work. In addition, the 1st Respondent contests the Claimant’s assertion that his reputation has suffered following the decision to terminate his employment on grounds of gross misconduct. Further, the 1st Respondent denies that it detained the Claimant against his will on 18th January 2018 as alleged.
22.On its part, the 2nd Respondent has distanced itself from the dispute between the Claimant and the 1st Respondent. According to the 2nd Respondent, its duty was to merely manage the 1st Respondent’s account. The 2nd Respondent denies that it colluded with its agent to reverse deposits made to the 1st Respondent’s account as alleged by the Claimant.
23.Further, the 2nd Respondent contends that there was no employment relation between it (the 2nd Respondent) and the Claimant. As such, this court has no jurisdiction to entertain the case directed against it.
25.It is noteworthy from the Memorandum of Claim that the Claimant’s case for wrongful termination is premised on the alleged loss of Ksh. 81,000.00 on 4th December 2017. As a matter of fact, the Claimant does not at all, in the said Memorandum of Claim, allude to the alleged loss of Ksh. 43,642.00 on 18th January 2018.
26.However, in his further witness statement dated 22nd May 2018, the Claimant alluded to the alleged loss of Ksh. 43,642.00 when he stated that at the time he was summoned back to the office and subsequently surrendered to the police on 18th January 2018, he had collected Ksh. 20,500.00 from the sales of the day. The Claimant contends that this amount was picked from him by the 1st Respondent’s management whilst he was in police custody. The Claimant’s further witness statement of 22nd May 2018 read together with his response to the notice to show cause dated 2nd February 2018 leads to the conclusion that the sum of Ksh. 20,500.00 that he alludes to in his further witness statement is part of the sale proceeds of Ksh. 43,642.00 from sales of 18th January 2018 that he was accused of not having account for.
27.The 1st Respondent’s Statement of Defense does not allude to the loss of Ksh. 43,642.00 on 18th January 2018 as one of the reasons why the Claimant’s contract of service was terminated. However, from the notice to show cause letter that was issued to the Claimant dated 30th January 2018 and the letter of dismissal from employment dated 24th February 2018 it is clear that the issue of the loss of Ksh. 43,642.00 was one of the matters that informed the disciplinary action against him and his eventual dismissal from employment. These two documents were tendered in evidence.
28.It is also apparent from the witness statement by the 1st Respondent’s witness filed in court on 14th November 2019 that the loss of Ksh. 43,642.00 was one of the reasons why the Claimant’s contract of service was terminated. The matter is also alluded to in the 1st Respondent’s letter to the Federation of Kenya Employers dated 5th April 2018. The letter was produced in evidence.
29.Although in his Memorandum of Claim, the Claimant refers to 28th January 2018 as the day he was allegedly unlawfully detained by the 1st Respondent’s management, in his response to the notice to show cause, he refers to 18th January 2018 as the date he was interrogated by the 1st Respondent and taken into custody. Further, in his further witness statement dated 22nd May 2018, the Claimant indicates that he was in police custody on 20th January 2018 when the 1st Respondent’s management allegedly collected from him Ksh. 20,500.00 being part of the sale proceeds for 18th January 2018.
30.Besides, the OB number 56/18/1/2018 suggests that the Claimant was taken into police custody on 18th January 2018. It therefore appears to me that reference by the Claimant to 28th January 2018 in his Memorandum of Claim as the date of his alleged unlawful detention by the 1st Respondent and arrest by the police may have been out of error. The date that he may have intended to allude to is 18th January 2018.
31.Although neither of the parties pleaded the loss of Ksh. 43,462.00 as a factor in the Claimant’s dismissal from employment, both of them made this an issue for trial. On its part, the 1st Respondent referred to the issue in the documentary evidence it placed on record as demonstrated in the preceding sections of this decision. Further, the 1st Respondent’s witness alluded to the matter both in the written witness statement that she adopted as her evidence in chief and her oral testimony before court.
32.On the Claimant’s part, despite him not having raised the matter in his pleadings, he referred to the alleged loss of Ksh. 43,642.00 in his further witness statement dated 22nd May 2018. He also alluded to the loss in his response to the notice to show cause letter of 2nd February 2018. The Claimant adopted the further witness statement as part of his evidence. His response to the notice to show cause was produced in evidence.
33.Although it is a cardinal rule that parties are bound by their pleadings and are not, as a general principle, at liberty to litigate upon unpleaded matters, courts have sometimes indicated that where parties make a matter the subject of a trial even though not pleaded, the court may consider such matter as raising an issue for determination (seeM N M v D N M K & 13 others  eKLR). In the case before me, the Claimant has argued that the issue about the alleged loss of Ksh. 43,642.00 is not what the 1st Respondent had pleaded as the reason for terminating the Claimant’s contract. However, I note from the record that the parties have extensively deliberated on the matter in both the documentary and oral evidence before me. Consequently, I consider it a matter that they placed before the court for determination.
34.On whether the 1st Respondent had valid reason to terminate the Claimant’s contract of service, it is evident from the 1st Respondent’s evidence that although it (the 1st Respondent) initially blamed the Claimant for the loss of Ksh. 81,000.00, this matter was resolved when the 2nd Respondent paid it (the 1st Respondent) the amount that had been lost. From the evidence by the 1st Respondent’s witness, the loss of Ksh. 81,000.00 eventually became a non issue in the termination of the relation between the parties.
35.The Claimant’s pleadings focused blame for his dismissal from employment on the alleged loss of Ksh. 81,000.00. As indicated earlier, the Claimant appeared to initially suggest that this was the sole reason why the 1st Respondent terminated the contract of service between the parties. However and as is clear from the record, away from their initial pleadings, both parties extensively deliberated on the loss of Ksh. 43,642.00 as the other reason for termination of the Claimant’s employment.
36.From the evidence tendered by the 1st Respondent’s witness, when the Claimant was arrested on 18th January 2018, it was realized that he had collected Ksh. 43,642.00 from the 1st Respondent’s customers on account of sales for that day but had not remitted the money to the bank. According to the 1st Respondent, when the Claimant was confronted about the matter, he alleged that he had only managed to collect Ksh. 20,000.00 for the day which amount he had handed over to the police for transmission to the 1st Respondent.
37.The 1st Respondent denies receiving the cash as alleged. According to the 1st Respondent, the Claimant was expected to bank all sale proceeds as and when he collected them. Therefore, it was surprising that he had released the money to the police as alleged. Further, the 1st Respondent asserts that even assuming that the Claimant had handed the cash to the police as he alleged, he still did not account for the entire of Ksh. 43,642.00 that he allegedly collected on 18th January 2018.
38.On his part, the Claimant admits that at the time he was recalled to the office on 18th January 2018, he had made sales worth Ksh. 43,642.00. Out of this money, the Claimant contends that he had only collected Ksh. 20,500.00 leaving a balance of Ksh. 23,142.00 uncollected.
39.In his response to the notice to show cause, the Claimant states that he withdrew Ksh. 20,000.00 whilst at the police station. However, in the said response, he does not indicate where the money was taken to after being withdrawn. The Claimant then states in his response to the notice to show cause that he accepted to repay the 1st Respondent the difference of Ksh. 23,642.00 or thereabouts through deductions to his salary.
40.In his further written witness statement dated 22nd May 2018, the Claimant indicates that he withdrew Ksh. 20,500.00 from his Mpesa account whilst in police custody. Noteworthy, this is a higher figure than the one alluded to in his response to the notice to show cause dated 2nd February 2018. In the further witness statement, the Claimant says that he gave the cash to the 1st Respondent’s members of staff.
41.On its part, the 1st Respondent has denied that the Claimant remitted either the Ksh. 20,000.00 that he mentions in his response to the notice to show cause or Ksh. 20,500.00 that he refers to in his further witness statement to its staff as alleged or at all. Further, the 1st Respondent contends that although the Claimant admits having sold products worth Ksh. 43,642.00 and alleges to have released Ksh. 20,000.00 or thereabouts to the 1st Respondent’s employees, he does not account for the difference of approximately Ksh. 23,000.00 which he allegedly had collected from the 1st Respondent’s customers in cash.
42.I have considered the above evidence against the law on termination of employment contracts in sections 41, 43 and 45 of the Employment Act. These provisions obligate the employer to prove the reasons for terminating a contract of service for an employee. Under section 43(2) of the Act the employer may terminate a contract of service if he has a reasonable basis for believing that a valid reason to terminate the contract exists (see Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others  eKLR).
43.The evidence on record demonstrates that whilst the Claimant concedes that he had sold stock worth about Ksh. 43,642.00 at the time he was summoned back to the office on 18th January 2018, he did not provide a convincing account for the sale proceeds. Whilst he argues that he remitted Ksh. 20,000.00 or thereabouts to the 1st Respondent, it is noteworthy that the 1st Respondent denies having received this cash. Whilst the record shows that the Claimant withdrew Ksh. 20,000.00 from his Mpesa account when he was in police custody, there is no cogent proof that this money was remitted to the 1st Respondent.
44.Further, the Claimant did not provide a satisfactory account for the difference of approximately Ksh. 23,000.00. Even as he alleges that this amount had not been collected from the 1st Respondent’s customers, the Claimant did not provide any form of evidence to demonstrate that the money was still with the said customers. The sales in question had been undertaken by the Claimant allegedly on credit. Therefore, he is expected to have kept proof of the customers that were yet to settle their accounts. One would have expected some form of evidence of indebtedness of the said customers to the 1st Respondent in the form of sales invoices or such other evidence. No such evidence was placed before the 1st Respondent’s disciplinary panel or indeed this court.
45.Having regard to the foregoing, it is clear to me that the 1st Respondent had reasonable grounds to believe that the Claimant had misappropriated the sum of Ksh. 43,642.00. Therefore and in terms of section 43(2) of the Employment Act, the 1st Respondent had reasonable grounds to terminate the Claimant’s employment contract.
46.Besides the duty on the employer to demonstrate that he had valid grounds to terminate the employee’s contract of service, he must demonstrate that the decision to terminate the contract was arrived at in accordance with due procedure (see Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others  eKLR). The procedure to be followed in terminating a contract of service is stipulated under section 41 of the Employment Act and the Fair Administrative Action Act.
47.Under the Employment Act, the employer is obligated to: notify the employee of the charge against him in a language that the employee understands; permit the employee an opportunity to respond to the charge and call witnesses if he so desires; render a prompt decision over the matter with notice to the employee; and provide the employee with an avenue for appeal or review of the decision. Under the Fair Administrative Action Act and in addition to the stipulations under section 41 of the Employment Act, the employer has a duty to share with the employee beforehand all the material in his possession which he proposes to rely on during the disciplinary session.
48.In his Memorandum of Claim, the Claimant states that he was dismissed from employment without observance of due process. In the further witness statement that he presented to court dated 22nd May 2018, the Claimant avers that he was not afforded an opportunity to attend the disciplinary session with witnesses of his choice. If correct, this would be a procedural lapse on the part of the 1st Respondent as the law entitles an employee to the right to fully ventilate his defense including by calling his witnesses to the session. The employer is obligated to consider the representations of the employee and his witnesses before rendering his decision.
49.Despite the Claimant’s contention that he was not allowed the opportunity to call his witnesses, the 1st Respondent has not provided evidence to controvert this assertion. Under section 45 the Employment Act the employer bears the duty to demonstrate that he afforded the employee the opportunity to call his witnesses if he wished. Absent evidence to controvert the Claimant’s evidence that he was not afforded the opportunity to call witnesses, I find that there was a procedural flaw in the process leading to termination of his contract of employment.
50.The Claimant has alleged that he suffered injury when he fell off a delivery van of the 1st Respondent. To prove the injury, the Claimant presented medical documents to the court.
51.Although the Claimant claimed that the injury was occasioned by a fall from the 1st Respondent’s van, he provided no evidence to suggest that the fall was occasioned by the negligence and or breach of a term of a contract and or a provision of statute by the 1st Respondent with respect to the duty to ensure the Claimant’s safety whilst at work. In the premises, I reach the conclusion that the claim for compensation for injury whilst at work has not been cogently proved.
52.The Claimant has also claimed for damages against the 1st Respondent for unlawful detention. The Claimant’s case in this respect is that whilst he was undergoing interrogation by the Claimant’s management on 18th January 2018, his freedom of movement was unlawfully curtailed. He contends that the 1st Respondent’s management locked him up and forced him to confess to an infraction he had not committed.
53.I have evaluated the evidence on this aspect of the case. Besides the bare assertion that he was detained at the 1st Respondent’s premises, the Claimant provides not cogent evidence on the issue. It is noteworthy that the 1st Respondent’s witnesses denied the assertion that they detained the Claimant.
54.I take cognizance of the fact that the parties had an outstanding dispute relating to loss of funds that were in the Claimant’s possession as a result of his employment. In the premises, I think that the 1st Respondent was entitled to interrogate the Claimant on the matter. Understandably, such interrogation may take some while. The mere fact that the 1st Respondent took the Claimant through this process cannot, without more, amount to unlawful detention of the Claimant. Consequently and for want of convincing evidence, I am unable to accede to the Claimant’s claim for compensation for unlawful detention.
55.The Claimant has also prayed for compensation for defamation of character. As I understand it, defamation of one’s character only arises where his standing has been lowered in the eyes of right thinking members of society. This presupposes that there are members of society who have come up to indicate that they think the less of the victim because of what was said or published about him.
56.In the case before me, the Claimant called nobody to confirm that as a result of his arrest on 18th January 2018, society’s view of him had been distorted. The Claimant relied on his own evidence to make this assertion which in my view is not permissible. As a consequence, I reach the conclusion that the claim for compensation for defamation of character has not been established.
57.The Claimant also sought to be reimbursed deductions that were made to his salary without his consent allegedly towards various levies such as trade union agency fees, donations, security deposit and APA Insurance. In reaction to the claim, the 1st Respondent asserts that the Claimant had sanctioned some of the deductions whilst others were statutory in nature.
58.The 1st Respondent’s witness asserts that the money that was deducted in agency fees was paid to a trade union that had negotiated a collective bargaining agreement (CBA) from which the Claimant was drawing a benefit. The 1st Respondent’s witness asserts that although the Claimant was not a member of the union, he was drawing a benefit from the CBA. Therefore, he was under statutory duty to pay the union agency fees.
59.In respect of deductions to APA Insurance, the 1st Respondent contends that the payments were to cover the Claimant’s pension. That these amounts were remitted to the relevant pension scheme and the Claimant was at liberty to pursue payments from the said scheme.
60.Regarding deductions of Ksh. 300.00 per month, the 1st Respondent states that the deductions were towards a welfare fund. It is contended that the Claimant had consented to the deductions.
61.The 1st Respondent did not make any comments on the claim for Ksh. 1200.00 towards security deposit. This sum is neither admitted nor disputed.
62.From the evidence on record, it is clear that the 1st Respondent does not deny making the impugned deductions from the Claimant’s salary. Instead, the 1st Respondent’s position is that the deductions were justified either by statute or that the Claimant had sanctioned them.
63.I have combed through the evidence that was tendered by the 1st Respondent and found nothing to demonstrate that the 1st Respondent had a recognition agreement with a trade union during the currency of the Claimant’s employment. There is no evidence that the 1st Respondent had a subsisting CBA with a trade union. There is no evidence to show to which trade union that the deductions towards agency fees were remitted.
64.Similarly, there is no evidence regarding the provident scheme to which the Claimant was a member. There is no evidence that the funds deducted from the Claimant’s salary over the years were in fact remitted to a Provident Fund.
65.The 1st Respondent argues that the funds were remitted to some trade union and a Provident Fund. That because the trade union and Provident Fund had not come up to deny receiving the cash, the court ought to believe that the funds were remitted as suggested.
66.I have a problem accepting this argument. First, there was no evidence regarding which trade union was allegedly receiving the agency fees. Importantly, neither the alleged trade union nor the Provident Fund is a party to the current action. How then were the two to lodge their indication that they had not received the alleged payments?
67.With respect to the welfare fund and security deposit, there is no evidence that these funds were remitted to the intended beneficiaries. Besides, there is no evidence provided by the 1st Respondent that the Claimant had consented to the impugned deductions. Absent this evidence, the court cannot presume consent from the Claimant.
68.Section 17 of the Employment Act requires an employer to pay to the employee the entire salary that the employee has earned. Section 19 of the Act permits the employer to make deductions from an employee’s salary to cover only those liabilities that the law has sanctioned or when the employee has given his consent.
69.I am unable to find evidence to lead me to the conclusion that the 1st Respondent has established that it had a lawful basis to make the impugned deductions from the Claimant’s wages. In the premises, it is only fair that the 1st Respondent reimburses the Claimant all the irregular deductions that were made to his salary.
70.The Claimant has also sued the 2nd Respondent for compensation following the dispute over how the deposit of Ksh. 90,013.00 was handled. The 2nd Respondent has objected to the action on the grounds that there is no employment relation between it and the Claimant.
71.Under section 12 of the Employment and Labour Relations Act, this court only has jurisdiction over disputes relating to employment and labour relations. It can only entertain disputes outside this reach, if they stem from the employment relation between the disputants.
72.In this case, it is not in doubt that the 2nd Respondent has no employment relation with the Claimant. Consequently, the jurisdiction of this court to entertain the Claimant’s claim against the 2nd Respondent is doubtful.
73.The next question for consideration relates to the nature of reliefs to issue in the cause. This will be guided by the findings on the other issues as discussed in the preceding sections of this judgment.
74.The court has arrived at the conclusion that the 1st Respondent had valid reason to terminate the Claimant’s contract of employment. It is also evident from the evidence that was tendered that the 1st Respondent substantially complied with the requirements of due process whilst processing the release of the Claimant from employment. There is evidence that the 1st Respondent notified the Claimant of the infraction that he was accused of. There is evidence that the 1st Respondent afforded the Claimant an opportunity to respond to the accusations against him. There is evidence that the 1st Respondent rendered its decision in time and communicated it to the Claimant.
75.However, there is also evidence of failure by the 1st Respondent to ensure certain aspects of due process were observed. In particular, the 1st Respondent did not controvert the Claimant’s evidence that he was not afforded the chance to call witnesses.
76.Despite the failure to fully observe the requirements of due process, it is clear to me that the Claimant was the author of his misfortune. His conduct of failing to account for the sale proceeds of 18th January 2018 substantially led to the decision to terminate his employment. It is evident that the Claimant’s conduct contributed to the final separation of the parties.
77.In view of the foregoing, I am disinclined to make any substantial award to the Claimant to cover compensation for unfair termination. Having regard to all factors and the guidelines enshrined under section 49 of the Employment Act, I award the Claimant compensation for unfair termination that is equivalent to his gross salary for one month, that is to say, Ksh. 40,031.00
78.The pay slip produced in evidence shows that the Claimant had been enrolled as a contributor under the National Social Security Fund. Consequently and by virtue of section 35(6)(d) of the Employment Act, he is dis-entitled to service pay or gratuity as he calls it.
79.As observed earlier in the judgment, there was no evidence to demonstrate that the 1st Respondent had legitimate reasons to make the various impugned deductions from the Claimant’s salary. The said deductions were irregular. Consequently, the court enters judgment for the Claimant for the sum of Ksh. 147,834.00 being the amount irregularly deducted from the Claimant’s salary.
80.The Claimant’s prayers for compensation for unlawful detention, defamation and injuries whilst at work were not proved. Accordingly, the same are dismissed.
81.I award the Claimant interest on the amount awarded at court rates from the date of institution of the suit.
82.Since the Claimant substantially contributed to the circumstances that led to the decision to terminate his employment with the 1st Respondent, I award him half costs of the suit against the 1st Respondent.
83.The 1st Respondent is ordered to issue the Claimant with a Certificate of Service in terms of section 51 of the Employment Act.
84.The court has no jurisdiction to entertain the Claimant’s claim against the 2nd Respondent. Consequently, the suit against the 2nd Respondent is dismissed with costs to the 2nd Respondent.