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ELRCPartially AllowedNot stated in the judgment· [2016] KEELRC 1599 (KLR)

Francis Ndirangu v Nakumatt Holdings Limited [2016] KEELRC 1599 (KLR)

Employment and Labour Relations Court of Kenya
26 February 2016
JAJ. N. Abuodha
1,239 words in judgment
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The bottom line

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A Kenyan court ruled that an employer who accuses an employee of theft but calls no witnesses cannot prove the case, making the dismissal unfair.

What this practically means

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Executive summary

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The claimant, employed by the respondent on 18th July 2002 as a shop assistant and later a supervisor (or Deputy Supervisor as he testified), was dismissed on 31st May 2013 on allegations of stealing four bundles of cigarettes. He sought a declaration that the termination was unlawful, reinstatement, three months' salary in lieu of notice and damages. The respondent, in its response, maintained that the claimant was lawfully terminated for gross misconduct after being found stealing cigarettes, and elected not to call any oral witness, relying instead on a warning letter, emails from one Mr. Hassan alleging an attempted theft and an admission, and the claimant's own letter of apology. The Court accepted the claimant's testimony that he was heard by a disciplinary committee and explained that his negligence, not criminal intent, caused him to leave cigarettes unattended while assisting a customer. The Court held that the respondent's serious allegations required oral evidence from Mr. Hassan or the Head of Security, which was not tendered, leaving the theft allegations doubtful. Applying the reasonable-employer standard, the Court found the termination was for unjustifiable and invalid reasons and hence unfair. It awarded the claimant seven months' basic salary as compensation for unfair termination, one month's basic salary in lieu of notice, and ordered the respondent to issue a certificate of service. The claims for a declaration of unlawfulness and reinstatement were not granted in the final orders. The judgment was delivered at Nairobi on 26th February 2016 by Abuodha J.

Key legal issues

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01

Whether the termination was for justifiable reasons

Holding

The termination was unfair because the respondent failed to prove the alleged theft; the claimant's explanation was plausible and uncontroverted.

Reasoning

The claimant was accused of theft of cigarettes but explained that he was negligent, not criminal, having left items unattended to assist a customer and hidden them to avoid blocking the gangway. The respondent relied only on documents and did not call the author of the allegations (Mr. Hassan) or the Head of Security, leaving the Court in doubt about the theft allegations. The reasonable-employer standard was therefore not met.

p. 3
02

Burden of proof where the employer calls no oral evidence

Holding

An employer who elects not to call witnesses on serious allegations of theft fails to discharge the evidentiary burden.

Reasoning

The respondent rested on its memorandum of response and three documents: a warning letter, two emails from Mr. Hassan, and the claimant's apology letter. The Court held that the serious allegations in the emails required the makers to testify. Their absence left the theft allegations unproven and the claimant's explanation uncontroverted.

p. 2

Legal principles established

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  • The reason for terminating an employee is measured against the standard of a reasonable employer; if no reasonable employer would dismiss, the Court finds for the employee.
  • Where an employer raises serious allegations such as theft, it must call or produce evidence implicating the employee; a plausible explanation by the employee requires an evidentiary response.

Court orders

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  1. 1.The respondent to pay the claimant 7 months basic salary as compensation for unfair termination
  2. 2.The respondent to pay the claimant one month's basic salary in lieu of notice of termination
  3. 3.The respondent to issue the claimant with a certificate of service
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over a memorandum of claim for unlawful termination (memorandum of claim filed 19th February 2014)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Francis Ndirangu v Nakumatt Holdings Limited [2016] KEELRC 1599 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1599/eng@2016-02-26

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