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ELRCPartially AllowedCause Number 1668 of 2013· [2018] KEELRC 1675 (KLR)

Benard Mbau Ngaruiya & 6 others v China Road & Bridge Corporation [2018] KEELRC 1675 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
29 June 2018
1,596 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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Seven truck drivers employed by China Road & Bridge Corporation on the Southern Bypass project claimed they were dismissed without reasons or notice on 27th August 2013, after a KTN investigative feature allegedly linked them to siphoning fuel from construction trucks. The respondent denied dismissing them, contending the claimants deserted their posts upon seeing police officers come to investigate the fuel-siphoning exposé, thereby rescinding their own contracts. The first claimant testified that they were locked out at the gate, their salaries withheld, and that no warning or dismissal letters were issued; the video never showed any of them siphoning fuel. The respondent's witnesses denied any lock-out, admitted no claimant was captured in the video clip, and conceded some claimants continued working for the respondent on other projects. The court found an accusation of theft is a serious offence justifying summary dismissal if proven, but the video did not identify any claimant, and the respondent's posture of detachment from the police investigation was curious given the alleged loss. Desertion had to be proved by evidence of efforts to contact the absent workers, of which there was none. Holding that proof and justification of reasons for termination rests with the employer, the court found the terminations unfair and awarded each claimant one month's salary in lieu of notice, salary for August 2013 and four days of September 2013, and seven months' salary as compensation for unfair termination, subject to taxes and statutory deductions, with costs of the suit. Other unproven prayers were dismissed.

Key legal issues

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01

Whether the claimants deserted their employment or were dismissed

Holding

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.

Reasoning

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.

p. 2
02

Whether the respondent proved and justified the reasons for termination

Holding

The respondent did not discharge the burden of proof to the desired standard; the termination was unfair.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Award of one month salary in lieu of notice to each claimant
  2. 2.Payment of salary for August 2013 and 4 days in September 2013 to each claimant
  3. 3.Award of seven months salary as compensation for unfair termination of services to each claimant
  4. 4.Costs of the suit to the claimants
  5. 5.Items (a), (b) and (c) subject to taxes and statutory deductions
  6. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.