Brian Ongeri Machuka v Kenya Medical Supplies Authority [2015] KEELRC 389 (KLR)

Employment and Labour Relations Court of Kenya

19 October 2015

HWHellen S. Wasilwa

1,325 words in judgment

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The bottom line

A Kenyan court ruled that an employer cannot fire a worker based on suspicion alone—dismissal requires proof and a fair hearing.

What this practically means

Executive summary

The Claimant, employed by the Kenya Medical Supplies Authority as General Support Staff on one-year renewable contracts from November 2011, sued in person alleging that his employment was terminated in February/March 2014 without notice, without payment of salary for March 2014, leave and notice pay, and claiming gratuity and RRI allowance. The Respondent, through Nyamodi & Company Advocates, defended the claim, alleging that the Claimant forged a 2012/2013 contract raising his salary to 10,000/=, and that he was lawfully dismissed for gross misconduct after investigation found him culpable of stealing five sachets of Rapid Test Kits found on his motorcycle. The Court framed three issues: validity of the reason for dismissal, procedural fairness, and entitlement to the prayers sought. On the first issue, the Court found that although theft would be a valid reason, the Respondent had not established it - the basis was mere suspicion, since no one saw the Claimant steal or place the items on his motorcycle, contrary to Section 43 of the Employment Act which places the burden of proving the reason on the employer. On procedure, the Court found no evidence of a disciplinary hearing or minutes, breaching Section 41. Consequently, the dismissal was held unfair and unjustified under Section 45. The Court awarded one month's salary in lieu of notice, twelve months' salary as damages for unlawful termination, and four days' salary for March 2014, with costs and interest. The gratuity and RRI claims were not reflected in the final awards.

Key legal issues

Validity of reason for dismissal

Holding

The alleged theft of Rapid Test Kits was not established; the reason was mere suspicion and thus not a valid reason under Section 43 of the Employment Act

Reasoning

Although theft of employer's property would be a valid ground for dismissal, the Respondent failed to prove it. No witness saw the Claimant steal the items, which were simply found on his motorcycle, and the employer acted on suspicion rather than established fact. Section 43 requires the employer to prove genuine, real reasons existing at the time of dismissal.

p. 2

Procedural fairness

Holding

No fair procedure under Section 41 was followed; no disciplinary hearing or minutes were produced

Reasoning

Section 41 requires an employer to explain the reasons for contemplated termination and to hear the employee's representations before dismissal. The Respondent produced no minutes of any disciplinary hearing. The Court therefore found the dismissal procedurally flawed and unfair under Section 45.

p. 3

Unfair termination and remedies

Holding

The dismissal was unlawful and unjustified under Section 45; the Claimant was awarded notice pay, 12 months' damages and unpaid salary

Reasoning

Having found both substantive and procedural unfairness, the Court awarded one month's salary in lieu of notice, the equivalent of twelve months' salary as damages for unlawful termination, and the four days' unpaid salary for March 2014, with costs and interest.

p. 3

Legal principles established

The employer bears the burden of proving the reason or reasons for termination; failure renders the termination unfair
Suspicion alone does not constitute a valid reason for dismissal under Section 43

Court orders

1.One month's salary in lieu of notice (KShs. 8,000)
2.Twelve months' salary as damages for unlawful termination
3.Four days' salary for March 2014 (KShs. 1,066)
4.Costs and interest

Authorities

Legislation

Employment Act 2007Section 43
Employment Act 2007Section 41
Employment Act 2007Section 45
Employment Act 2007Section 42(1)
Employment Act 2007Section 44(3) and (4)

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction over employment claims (Employment Act 2007)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Brian Ongeri Machuka v Kenya Medical Supplies Authority [2015] KEELRC 389 (KLR)", Case Analysis (2015). Cause No. 1193 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/389/eng@2015-10-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.