Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedSuit No 389 of 2017· [2018] KEELRC 531 (KLR)

Joseph M. Lazarus v H. Young & Company (E.A) Limited [2018] KEELRC 531 (KLR)

Employment and Labour Relations Court
14 November 2018
1,697 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled an excavator operator was unfairly fired over suspected fuel theft because his employer had no investigation report and never gave him a hearing.

What this practically means

#

Executive summary

#
The Claimant, formerly employed by the Respondent as an excavator operator on the Meru bypass roads project from 30th June 2016 at a monthly salary of Kshs. 42,775/-, sued for unfair termination following his summary dismissal on 22nd August 2017 on suspicion of siphoning fuel from the machine he operated. He sought one month's salary in lieu of notice, damages for unlawful termination, reimbursement of an unlawful salary deduction, a certificate of service, gratuity at 15% of annual salary, costs and interest. The Respondent defended the dismissal as lawful under Section 44(g) of the Employment Act, asserting an investigation had linked the Claimant to the loss of 90 litres of fuel from 200 litres used, and denied the court's jurisdiction. The court found that although the Respondent claimed to have investigated the matter, it did not avail the investigation report, and the machine had been left in the Respondent's yard accessible to other personnel and security. The dismissal, effected the same day the Claimant was accosted with the allegations, denied him the procedural safeguards of Section 41 of the Employment Act. Applying Sections 45(2) and 47(5), the court held the reason for termination was not valid and the dismissal was procedurally and substantively unfair. The court awarded one month's salary in lieu of notice (Kshs. 42,775/-), reimbursement of the Kshs. 32,209/- deduction, six months' salary as compensation (Kshs. 256,650/-), costs, interest from the date of judgment, and a certificate of service.

Key legal issues

#
01

Validity of the reason for termination

Holding

The reason advanced (suspicion of fuel siphoning) was not a valid reason under Section 45(2) of the Employment Act

Reasoning

The employer relied on an investigation into fuel siphoning but did not avail the investigation report, so the court could not discern whether the Claimant was reasonably suspected. The machine was left in the Respondent's yard accessible to other personnel and security, so the fuel loss could not be attributed solely to the Claimant.

p. 2
02

Procedural fairness under Section 41 of the Employment Act

Holding

The Claimant was not notified of the allegations and was not given an opportunity to defend himself, contrary to Section 41

Reasoning

The Claimant was dismissed on 22nd August 2017, the same day he was accosted with the charges, without a disciplinary meeting or opportunity to respond. Citing Walter Ogal Anuro v Teachers Service Commission, the court held both procedural and substantive fairness under Section 41 were not accorded.

p. 2
03

Burden of proof in unfair termination

Holding

The Claimant proved an unlawful termination and the Respondent failed to justify the dismissal

Reasoning

Under Sections 45 and 47(5) of the Employment Act, the Claimant bears the burden of proving termination occurred while the employer must justify the grounds. The Claimant discharged his burden and the Respondent failed to prove a valid reason and fair procedure.

p. 2

Legal principles established

#
  • An employer who fails to avail an investigation report cannot establish a valid reason for summary dismissal on suspicion, and dismissal without affording the employee a hearing under Section 41 is unfair

Court orders

#
  1. 1.One month salary in lieu of notice of Kshs. 42,775/-
  2. 2.Kshs. 32,209/- unlawfully deducted from the Claimant's salary to be reimbursed
  3. 3.6 months' salary as compensation of Kshs. 256,650/-
  4. 4.Costs of the suit to the Claimant
  5. 5.Interest at court rates on the sums in (a), (b) and (c) from the date of judgment till payment in full
  6. 6.Certificate of service to be issued to the Claimant

Authorities

#

Legislation

  • Employment ActSection 44 (including Section 44(3)(g)/44(g))
  • Employment ActSection 45 (including Section 45(2))
  • Employment ActSection 41
  • Employment ActSection 35
  • Employment ActSection 47(5)

Cases cited (3)

  • Daniel Kiplagat Kipkeibut v Smep Deposit Taking Micro Finance Limited
    [2016] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • George Onyango Akuti v G4S Security Services Ltd
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (defence denied the court's jurisdiction but no basis is expressly stated)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Joseph M. Lazarus v H. Young & Company (E.A) Limited [2018] KEELRC 531 (KLR)", Case Analysis (2018). Suit No 389 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/531/eng@2018-11-14

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