William Kiaritha Gacheru v East African Packaging Industries Ltd [2016] KEELRC 1633 (KLR)
The bottom line
#A Kenyan court ruled an employer cannot fire someone based only on a polygraph test without giving them a fair hearing first.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness and fairness of termination based solely on a polygraph examination
The termination was unfair both in reason and procedure: the polygraph result alone could not prove guilt and no disciplinary hearing was held
The court accepted polygraph testing can show deception only and is not conclusive proof of guilt. The termination letter expressly relied on the polygraph result. Section 41(2) of the Employment Act requires the employer to hear and consider the employee's representations before termination, calling for some sort of hearing. No minutes or record of a disciplinary hearing existed, so reliance on the test alone and failure to afford a hearing rendered the termination unfair.
Voluntariness and propriety of the polygraph examination
The polygraph test itself was properly undertaken; the claimant voluntarily consented and could have refused
The claimant signed a consent note stating he voluntarily agreed without threats or promises. Given his senior position and education as an engineer, he could not claim helplessness; he could have refused even at the pain of dismissal. Selecting employees for testing was a managerial discretion, and the court should be reluctant to interfere with managerial matters absent breach of statute or contract.
Compensation despite payment of terminal dues and a no-claims clearance certificate
The claimant was awarded four months' salary as compensation for unfair dismissal; no further award of terminal benefits
Terminal benefits had been handsomely paid as if the claimant was retrenched, so no further award was due on that head. However, compensation for unfair termination is a distinct, compensatory award reflecting breach of fair process and natural justice, which cannot be excluded by agreement. Considering all circumstances and the respondent's conduct, four months' salary was awarded.
Whether the polygraph report, the list and the emails were defamatory
No defamation was established; the claim was dismissed
Defamation under section 3 of the Defamation Act requires a publication without justification calculated to injure reputation, and there must be evidence of publication. The office notice selecting 28 employees was based on seniority and work area, not suspicion of particular individuals. The 18th February 2013 email was a reply to the claimant's own email and contained nothing injuring his reputation. Employer implications of theft in investigations cannot automatically amount to defamation.
Effect of the finality clause in the clearance certificate
The no-claims clause did not bar the unfair termination claim
The certificate covered contractual and statutory dues, which are separate from compensatory awards for unfair termination. Rights under sections 45 and 46 of the Employment Act cannot be contracted out; doing so would amount to contracting out of a statute without express provision. The claimant therefore remained entitled to pursue compensation for unfair termination.
Legal principles established
#- A polygraph test result alone cannot be conclusive proof of guilt of a crime or misconduct and cannot substitute a disciplinary hearing
- Reliance on a polygraph result alone to terminate employment is unfair where no hearing or disciplinary process preceded termination
- Statutory rights under sections 45 and 46 of the Employment Act cannot be contracted out by a finality clause in a clearance certificate
- An allegation of involvement in theft leading to termination is tested at a lower standard of proof than a criminal prosecution, and an acquittal is no barrier to dismissal on the same facts
- Defamation requires publication to a third party; inclusion of an employee in a list for testing on account of his position of responsibility is not defamatory
Court orders
#- 1.The claim for defamation is dismissed
- 2.The claimant is awarded four months' salary as compensation for unfair termination of services
- 3.No order on costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (6)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- H Young Company (ea) Limited v Kenya Building, Construction, Timber & Furniture Industries Employees Union[2026] KECA 1020 (KLR)29 May 2026followed
- Vincent Masinde Munuku BOB Morgan Services Limited [2021] KEELRC 467 (KLR)[2021] KEELRC 467 (KLR)18 Nov 2021
- Caleb Kipkorir Cheruiyot v Kaisugu Tea Limited [2021] KEELRC 1497 (KLR)[2021] KEELRC 1497 (KLR)27 Jan 2021
- Peter Murigi Mburu v Kenya Forest Services [2019] KEELRC 264 (KLR)[2019] KEELRC 264 (KLR)27 Nov 2019
- Peter Murigi Mburu v Kenya Forest Services [2019] KEELRC 264 (KLR)[2019] KEELRC 264 (KLR)27 Nov 2019
- Kenya Union of Commercial, Food and Allied Workers v Del Monte (K) Ltd [2019] KEELRC 1617 (KLR)[2019] KEELRC 1617 (KLR)20 May 2019
Cite this brief
#Cite this brief
Caselaw, "William Kiaritha Gacheru v East African Packaging Industries Ltd [2016] KEELRC 1633 (KLR)", Case Analysis (2016). Memorandum of Claim dated 27th May, 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1633/eng@2016-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.