George Maeba Mageto v Unilever Tea (K) Limited & another [2018] KEELRC 866 (KLR)

Under Section 43 of the Employment Act the employer must prove the reason for termination. Where the employer elects to charge the employee with a definite criminal offence such as defilement, which carries a life sentence, it cannot rely on the lesser administrative standard of proof. The employer's failure to report the matter to police or seek state investigative intervention meant it could not claim the comfort of the lesser burden. Applying the range of reasonable responses test, the decision to dismiss fell outside the band and had to be interfered with.

The Court of Appeal authority in Kenya Power v Wasike establishes that internal disciplinary proceedings are separate from criminal proceedings and acquittal does not bind the employer. However, administrative charges are not to be defined as if they were criminal charges. Where the employer charges a definite and serious criminal offence such as defilement against a child, the employee's liberty interest is engaged and the employer cannot compromise on the sanction, so proof beyond reasonable doubt is required.

The 2nd Respondent was sued as an independent investigator who acted as an independent contractor to the 1st Respondent. The Court found no employment relationship was pleaded and, decisively, that no specific relief was claimed against her, leaving the claim unsupported.

In assessing compensation the Court considered the Claimant's long service of over twenty years and the 1st Respondent's conduct in the dismissal transaction. Notice pay and gratuity were awarded as provided in the applicable CBA, and the claims for days worked and leave pay were admitted and payable.