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ELRCDismissedCause No. 234 of 2015· [2018] KEELRC 1704 (KLR)

Kenya Plantation & Agricultural Workers Union v Eastern Produce Kenya Limited [2018] KEELRC 1704 (KLR)

Employment and Labour Relations Court of Kenya
20 June 2018
DMD. K. Njagi Marete
3,357 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld the summary dismissal of two store clerks because the employer proved a fair process and a valid reason for termination.

What this practically means

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Executive summary

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The Kenya Plantation & Agricultural Workers Union claimed on behalf of two grievants, Michael Njoroge and Leonard Odindo, store clerks of Eastern Produce Kenya Limited summarily dismissed in September 2013 following the loss of steam fittings valued at Kshs.2,232,279.95 from the Group Central Workshop main store. The claimant alleged the dismissals were unlawful, wrongful and unfair, that investigations were discriminatory and selective, that the grievants lacked custody of store keys, that no evidence linked them to the loss, and that the disciplinary hearing breached sections 41, 43 and 45 of the Employment Act, 2007. It sought declarations, reinstatement, back salaries, or alternatively terminal dues, damages and interest. The respondent denied the claim, asserting the dismissals followed a fair disciplinary process, including hearings, verdicts, appeals and a conciliation attempt, and that the grievants admitted failing to follow stock-control procedures. Marete J framed three issues: lawfulness of the termination, entitlement to relief, and costs. Relying on the respondent's authorities and the grievants' admissions, the court held that on a balance of probability and preponderance of evidence the respondent's case overwhelmed the claimant's and that the termination was lawful. The claim was dismissed in its entirety with each party bearing its own costs. All authorities were cited by parties and none was adopted by the court as its own holding.

Key legal issues

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01

Whether the summary dismissal of the grievants was wrongful, unfair and unlawful

Holding

The termination was lawful; the respondent's case prevailed on a balance of probability

Reasoning

The court found the grievants were charged with negligent and fraudulent conduct amounting to loss of steam fittings valued at Kshs.2,232,279.95, which was admitted at the disciplinary hearing and in cross-examination. The elaborate disciplinary process, including suspension notices, charges, hearings, verdicts and appeals, satisfied procedural fairness. Sections 41, 43 and 45 of the Employment Act were held to be met.

p. 5
02

Whether the claimant is entitled to the relief sought

Holding

No relief is due; having failed to prove unlawful termination, the claimant is disentitled

Reasoning

The relief of reinstatement, terminal dues, damages and interest flowed from a finding of unfair termination. Since the court found the termination lawful, all consequential relief fell away and the claim was dismissed in its entirety.

p. 5

Legal principles established

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  • A disciplinary process need not meet strict rules of evidence; preponderance of probability suffices
  • The employer bears the burden of proving a valid reason for termination under sections 43 and 45 of the Employment Act

Court orders

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  1. 1.Dismissal of the claimant's claim
  2. 2.Each party to bear their own costs of the claim

Authorities

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Legislation

  • Employment Actsection 41(1) and (2)
  • Employment Actsection 43(1)
  • Employment Actsection 45(1) and (2)
  • Employment Actsection 44(4)(g)
  • Evidence Act, Chapter 80, Laws of Kenyasection 68

Cases cited (3)

  • Rebecca Ann Maina & 2 Others v. Jomo Kenyatta University of Agriculture & Technology
    (2014) eKLR
  • Joseph Wambugu Kimenchu vs Attorney General
    [2013] eKLR
  • Anthony Mkala Chitavi v Malindi Water Company Ltd
    [2013] eKLR
Jurisdiction invoked
Employment and labour relations dispute referred under the Employment and Labour Relations Court Act; dispute over summary dismissal of two grievants

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, "Kenya Plantation & Agricultural Workers Union v Eastern Produce Kenya Limited [2018] KEELRC 1704 (KLR)", Case Analysis (2018). Cause No. 234 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1704/eng@2018-06-20

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