Joseph Kinyua Ngari v Co-operative Bank of Kenya Limited [2017] KEELRC 1711 (KLR)
The bottom line
#A Kenyan employer who cannot prove valid reasons for firing an employee must pay substantial compensation, winning worker over KShs.1 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was for a valid reason
The dismissal was wrongful and unfair; the employer failed to prove the reasons under Sections 43(1) and 45 of the Employment Act
The claimant denied the charges of irregular procurement and was never given the internal audit report. The allegations were complex technical matters requiring explanation by technical officers. The respondent's failure to call the technical personnel involved in the impugned projects left the doubts cast by the claimant unrebutted, so the claimant proved on a balance of probability that the dismissal was wrongful and unfair.
Burden of proof in unfair termination claims
While the employee bears the overall burden of proving unfair termination, once the employer's stated reasons are questioned, the burden shifts to the employer to justify the dismissal
Section 43(1) obliges the employer to prove the reasons for termination, failing which the termination is deemed unfair under Section 45. Read with Section 47(5), where the employee casts doubt on the validity of the reasons, the evidential burden shifts to the employer. Pleadings alone do not constitute evidence, though admitted pleadings become facts.
Quantum of compensation under Section 49 of the Employment Act
Eight months' salary awarded as compensation after considering Section 49(4) factors
The claimant lost a high-paying job without justification, had a clean record, had been rewarded for good performance for three consecutive years, served nearly five years continuously, received no terminal benefits on separation, and the respondent adduced no evidence of any contribution by the claimant to the dismissal.
Legal principles established
#- Where an employee questions the validity of the employer's stated reasons for dismissal, the burden shifts to the employer to prove that the reasons existed and justified summary dismissal
- An employer who fails to rebut doubts cast on the reasons for dismissal, including by failing to call the technical personnel involved, risks a finding of wrongful and unfair termination under Section 45 of the Employment Act
Court orders
#- 1.Judgment entered in favour of the claimant against the respondent
- 2.Kshs.114,517/= in lieu of notice
- 3.Kshs.916,136/= compensation for wrongful and unfair dismissal
- 4.Total award of Kshs.1,030,653/= payable with interest at court rates from the date of judgment until payment in full
- 5.Costs to follow the outcome
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (memorandum of claim under the Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Kinyua Ngari v Co-operative Bank of Kenya Limited [2017] KEELRC 1711 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1711/eng@2017-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.