- Judge Anna Mwaure found that the claims of Onguso's absconding duty were just that, mere allegations.
- Mwaure said there was no evidence of how many days he absented himself and what efforts were made to reach out to him.
Image: HANDOUT
Seven years ago, John Amenda Onguso was accused of stealing paint from Sarova Panafric and ordered to report to the human resource office for investigations but he did not show up.
That was on April 24, 2016, and two days later, Sarova reported Onguso to the police for the alleged offence.
The police however cleared him through a letter saying they did not find sufficient evidence to prosecute him.
At the time, the man had worked for the hotels for 13 years having joined in 2003 and confirmed in 2008.
He was however terminated after the allegations.
Aggrieved, Onguso moved to court saying he was unlawfully terminated and sought orders for compensatory damages.
Sarova said it was ready to pay him his dues once he finished his clearance with all the departments.
The hotel told the court that Onguso did not serve faithfully, adding that there had been previous reports of him stealing paint.
It denied the claims of unfair dismissal saying the man took off when he was allegedly found to have stolen the paint, prompting the termination.
The hotel further told the court that Onguso absented himself from work to avoid being put through disciplinary proceedings.
Onguso, however, swore that he went back to the company to clear but he was arrested.
He was however not found to be guilty and he later cleared with the hotel but was never paid his dues.
The court found that Onguso was indeed accused of theft on April 24, 2016, but was reported to the police on June 2, 2016.
Earlier on, Sarova Hotels had said they reported the matter on April 26, 2016.
The police cleared him by a letter dated June 24, 2016, due to insufficient evidence to prosecute him.
He had been dismissed on April 30, 2016.
The court also heard that Onguso was said to have been seen carrying a can of paint but there was no further explanation on where he got it from or where he was taking it, or even who saw him carrying it.
Sarova's witness, the chief security officer said it was friends of the hotel who saw the paint being offloaded at Ngumo.
The court also found there were other inconsistencies and contradictions pertaining to the issue as the witness said Onguso never used to paint as painters were from outside the hotel.
Yet, the witness in his statement presented to the court on July 2019, said Onguso was a painter.
Judge Anna Mwaure found that the claims of Onguso's absconding duty were just that, mere allegations and there was no evidence of how many days he absented himself and what efforts were made to reach out to him.
"So as earlier said it seems evident the respondents (Sarova Panafric Hotels Limited) had no valid reason to terminate the claimant (Onguso) from employment and were merely looking for a reason to do so," the judge said.
She also found that during his time with the company, Onguso had received several commendations and no warning letters were produced as evidence of any wrongdoings.
There was also no letter inviting Onguso for a disciplinary hearing and Sarova failed to prove that fair procedure was followed before termination.
"Therefore the court declares the Onguso was unfairly and unlawfully terminated and enters judgment in favour of the claimant and holds that the respondent (Sarova) should compensate," Judge Mwaure said.
The judge ordered that Onguso is entitled to relief. Noting that the court did not know the accurate salary, it ordered the submission of the same.
Onguso had said his salary was Sh18,692 but in calculating the remedies he worked with Sh46,377.
"The court orders the parties to give the accurate salary of the claimant to enable the final award to be given," the judge ordered.
The mention is set for September 19, 2023, for the parties to give the correct agreed salary at the time of termination.