Benard Mbau Ngaruiya & 6 others v China Road & Bridge Corporation [2018] KEELRC 1675 (KLR)
The bottom line
#Kenya's Employment Court ruled that employers must prove theft and desertion claims with evidence before dismissing workers, awarding seven drivers compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimants deserted their employment or were dismissed
The respondent failed to prove desertion; no evidence of efforts to contact the claimants was presented, and some claimants were still working for the respondent on other projects despite the alleged theft implication.
The court found it strange that employees implicated in theft would be allowed to continue working on different projects. The respondent alleged the claimants fled upon seeing police and never returned, but adduced no evidence of attempts to contact them, which desertion-based termination requires. The respondent's own witness admitted none of the claimants was captured in the video clip, and that some still worked for the respondent on different projects, undermining the desertion narrative.
Whether the respondent proved and justified the reasons for termination
The respondent did not discharge the burden of proof to the desired standard; the termination was unfair.
An accusation of theft justifies summary dismissal if proven, but the video clip never showed any claimant by face siphoning fuel; it only showed respondent vehicles parked where siphoned fuel was allegedly sold. The respondent's posture that the police pursued the matter independently was found curious, as a genuine loss would have prompted a formal complaint to police. The burden of proving and justifying termination rests on the employer and was not met.
Legal principles established
#- Proof and justification of reasons for termination of employment rests with the employer; failure to discharge this burden renders the termination unfair.
- A termination on account of desertion must be backed by clear evidence that efforts were made to contact the worker claimed to have deserted, without success.
Court orders
#- 1.Award of one month salary in lieu of notice to each claimant
- 2.Payment of salary for August 2013 and 4 days in September 2013 to each claimant
- 3.Award of seven months salary as compensation for unfair termination of services to each claimant
- 4.Costs of the suit to the claimants
- 5.Items (a), (b) and (c) subject to taxes and statutory deductions
- 6.Other prayers pleaded by the claimants dismissed for want of evidence
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benard Mbau Ngaruiya & 6 others v China Road & Bridge Corporation [2018] KEELRC 1675 (KLR)", Case Analysis (2018). Cause Number 1668 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1675/eng@2018-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.