Simon Njathi Kiarie v Brookside Dairy Limited [2015] KEELRC 679 (KLR)
The bottom line
#A Kenyan court ruled that suspicion of fraud is not enough to fire someone—employers must prove the misconduct and hold a proper disciplinary hearing first.
What this practically means
#Executive summary
#Key legal issues
#Whether summary dismissal under Section 44(4)(g) of the Employment Act was justified
The Respondent failed to conclusively link the Claimant to the fraud; the fraud allegations were not strictly proved to the required standard
The Claimant was alleged to have committed a criminal offence against the employer's substantial detriment under Section 44(4)(g). However, none of the alterations involved his password, no employee admitted sharing a password with him, and the audit trail evidence was incomplete and unsigned. Allegations of fraud must be proved to a standard higher than a balance of probabilities, and the Respondent failed to call the other employees who could incriminate him.
Whether the Respondent accorded the Claimant fair procedure under Section 41 of the Employment Act
The dismissal was unfair in its execution because the Claimant was never accorded a disciplinary hearing or notification of intent to dismiss
Section 41 requires an employer to explain the reasons for termination to the employee and allow a colleague or union representative present. The Claimant was merely interrogated by the security manager in July 2008 and then dismissed by letter sent by post in September 2008. The delay between the accusations and the dismissal, and the absence of any disciplinary sitting, showed the procedure fell short of the statutory requirement.
Entitlement to house allowance
The Claimant was entitled to house allowance at 15% of basic pay for 36 months since the appointment letter did not indicate a consolidated salary
The letter of appointment did not state that the salary was consolidated. House allowance was therefore claimable at 15% of basic pay for the 36 months preceding termination, amounting to Kshs. 56,700/-. The other heads of claim were not proved.
Whether the Claimant could recover salary up to retirement age
The Claimant was not entitled to anticipatory salaries up to his anticipated retirement age of 65 years
Following D. K. Njagi Marete v Teachers Service Commission, the court held that a grant of anticipatory salaries and allowances for the years left to mandatory retirement would not be a fair and reasonable remedy since the Claimant no longer renders labour to the Respondent.
Legal principles established
#- The burden of proving unfair termination rests on the employee, while the burden of justifying the dismissal rests on the employer (Section 47(5) Employment Act)
- Suspicion alone is insufficient to justify summary dismissal; cogent evidence is required to link the employee to the misconduct
- An interrogation by a security officer does not amount to the fair procedure prescribed under Section 41 of the Employment Act; a disciplinary hearing is required before dismissal
- Anticipatory salaries up to retirement age are not a fair and reasonable remedy for unfair termination
Court orders
#- 1.Judgment entered for the Claimant against the Respondent for 3 months salary as compensation being Kshs. 36,225/-
- 2.House allowance pay of Kshs. 56,700/-
- 3.Certificate of service in terms of Section 51 of the Employment Act
- 4.No order as to costs
- Jurisdiction invoked
- Original jurisdiction under the Employment Act 2007; the judgment does not cite a specific constitutional jurisdictional provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simon Njathi Kiarie v Brookside Dairy Limited [2015] KEELRC 679 (KLR)", Case Analysis (2015). Cause No 74 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/679/eng@2015-06-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.