Jeremiah Ochieng’ Ponde & 3 others v Borderless Tracking Systems Limited [2016] KEELRC 1639 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Validity of the reason for termination
The allegation that the Claimants engaged in fraudulent tagging was not established; termination was not based on valid reason
The respondent's witness restated only general suspicions of conspiracy involving agents, claimants and KRA staff. The exact role of the Claimants was never demonstrated, no exhibits such as the Dispatch Book were availed, and police investigations led to no prosecution. The court held mere suspicion, including suspicion from night-duty staff being seen on the premises during the day, could not justify termination.
Fairness of the termination procedure
Termination was procedurally unfair; no Section 41 process was demonstrated
The respondent argued the 3 days between the CID investigation and termination constituted a fair hearing. The court rejected this, holding that no letters inviting explanation, no internal investigation or report, no charges and no hearing were shown. Fair procedure cannot be inferred from the passage of time; the statutory process under Section 41 must be evidenced.
Quantum of compensation and terminal dues
One month's salary compensation awarded per claimant; claims for pro-rata leave, public holidays, days worked and rest days allowed as prayed
Under Section 49 of the Employment Act and Section 12 of the Employment and Labour Relations Court Act, compensation was limited to one month's salary given the short service of 6 months, 3 of them probationary. Claims on leave, public holidays, days worked and rest days were uncontradicted as the respondent produced no attendance or employment records to the contrary.
Legal principles established
#- The employer bears the burden of proving valid and fair reasons for termination under Sections 43 and 45 of the Employment Act 2007
- Mere suspicion of misconduct is not a valid reason for termination; suspicion must be shown to be reasonable and valid
- Fairness of procedure is not measured by the time elapsed between investigation and termination; the Section 41 process must be shown to have taken place
- An employer may act independently without waiting for the outcome of police investigations, but termination must rest on an internal investigation establishing valid and fair reasons
Court orders
#- 1.Declaration that termination of the Claimants was unfair
- 2.Respondent to pay each Claimant, within 30 days, notice pay of Kshs. 16,258
- 3.Payment of pro-rata leave of Kshs. 5,250 to each Claimant
- 4.Payment for 4 public holidays of Kshs. 4,495 to each Claimant
- 5.Payment for days worked in November 2014 (Kshs. 1,685 for 1st and 4th Claimants; Kshs. 2,809 for 2nd Claimant; Kshs. 3,371 for 3rd Claimant)
- 6.Payment for rest days (Kshs. 26,972 for 1st, 2nd and 4th Claimants; Kshs. 31,468 for 3rd Claimant)
- 7.Payment to the 3rd Claimant of salary for October 2014 of Kshs. 16,258
- 8.Compensation for unfair termination of 1 month's salary (Kshs. 16,258) to each Claimant
- 9.Each party to bear its own costs of the Claim
- Jurisdiction invoked
- Employment and Labour Relations Court Act, Section 12; Industrial Court (Procedure) Rules 2010, Rule 27(1)(a)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Abdalla Sudi Abdalla v Borderless Tracking Limited [2018] KEELRC 259 (KLR)[2018] KEELRC 259 (KLR)20 Dec 2018
Cite this brief
#Cite this brief
Caselaw, "Jeremiah Ochieng’ Ponde & 3 others v Borderless Tracking Systems Limited [2016] KEELRC 1639 (KLR)", Case Analysis (2016). Cause Number 341 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1639/eng@2016-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.