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ELRCDismissedNot stated in the excerpt· [2015] KEELRC 1194 (KLR)

Samuel Moyaki v Catering & Tourism Development Levy Trustees [2015] KEELRC 1194 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
29 January 2015
MAMakau
2,734 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed a driver's unfair dismissal claim because his employer proved valid reasons and gave him a fair hearing.

What this practically means

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Executive summary

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The Claimant, a former driver and clerk of the Respondent (Tourism Fund, formerly Catering Levy Trustees), sued on 19th August 2009 alleging that his termination on 3rd December 2008 was unlawful, wrongful and in breach of the rules of natural justice, equity and conscience. He sought one month's salary in lieu of notice (Kshs. 22,202/-), severance pay (Kshs. 22,200/-), legal fees (Kshs. 100,000/-), general damages for injury to his name and reputation, terminal dues, costs and interest. The Respondent denied the claims, averring that the Claimant was interdicted for theft of money from colleagues and fuel misuse, was investigated, was found in the cashier's office without authority, was given an opportunity to defend himself at a disciplinary meeting, and was heard. Six witnesses testified for the Respondent detailing the cash office incident, the fuel order anomalies, and the disciplinary process. The Claimant testified that he was dismissed without a hearing and denied writing an appeal letter, which the court found implausible as he had annexed the same unsigned letter to his Memorandum of Claim. The court found the Claimant dishonest and untrustworthy, held that he was accorded a hearing and had appealed, and that under Section 43 of the Employment Act the Respondent proved the genuine reasons for termination. The claim was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the dismissal was in compliance with the law

Holding

The dismissal was fair and in conformity with the law; the Claimant was accorded a hearing and the Respondent proved the reasons for termination

Reasoning

The court found the Claimant was found in the cash office in a compromising situation and was suspected of dishonesty. He was interviewed by Respondent officials, invited to a disciplinary meeting, heard in accordance with the minutes, appealed, and was then dismissed. The court regarded the Claimant as a dishonest and untrustworthy witness who denied an appeal letter he himself had annexed. Under Section 43 of the Employment Act the Respondent discharged its burden of proving the reasons for termination, so no remedies lay.

p. 4
02

Burden of proving reasons for termination

Holding

The Respondent proved the reasons for termination under Section 43 of the Employment Act

Reasoning

Section 43 places the burden on the employer to prove the reasons for termination, which are the matters the employer genuinely believed to exist at the time. The Respondent adduced evidence of the cash office incident, the fuel misuse investigation, the disciplinary meeting attended by the Claimant, and his appeal, thereby discharging that burden and defeating the claim of unfair termination.

p. 4

Legal principles established

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  • In any claim arising out of termination of a contract, the employer is required to prove the reasons for the termination, failing which the termination is deemed unfair

Court orders

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  1. 1.The Claim is dismissed with costs to the Respondent

Authorities

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Legislation

  • Employment ActSection 43(1) and (2)

Cases cited (2)

  • Nicholas Otinyu Muruka v Equity Bank Limited
    [2013] eKLR
  • Mark T. Mwangi v. Gateway Insurance Company Limited
    [2013] eKLR
Jurisdiction invoked
Employment and labour relations dispute filed in the Industrial Court of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Samuel Moyaki v Catering & Tourism Development Levy Trustees [2015] KEELRC 1194 (KLR)", Case Analysis (2015). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1194/eng@2015-01-29

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