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ELRCDismissedCause No 1211 of 2013· [2019] KEELRC 155 (KLR)

Samuel Mbote Mweya v National Water Conservation & Pipeline Corporation [2019] KEELRC 155 (KLR)

Employment and Labour Relations Court
22 November 2019
ANAbuodha Jorum Nelson
1,407 words in judgment
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The bottom line

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A Kenyan court dismissed an accountant's unfair termination claim because he was told the allegations and given a real chance to respond.

What this practically means

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Executive summary

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The claimant, formerly a Senior Accountant with the National Water Conservation & Pipeline Corporation, sued for unfair termination. He pleaded that he was suspended on 9 October 2008 on the pretext of an investigation, recalled in February 2009, then sent on compulsory leave in November 2009 on the same grounds and summarily dismissed in January/February 2010 for allegedly aiding and abetting fraudulent payments and wrong voting. He claimed he was never given reasons or a chance to defend himself, and sought benefits, entitlements, loss and damages. The respondent asserted that investigations revealed fraud and gross misconduct and that the claimant was given an opportunity to defend himself before a disciplinary committee. At trial, the claimant adopted his witness statement; in cross-examination he admitted being inducted and explained his duties at each promotion, and that he never queried the suspensions or claimed benefits. The respondent's HR and Administration Officer, Ms Nancy Murunju, testified that the compulsory leave paved way for investigations and that no specific debt was attributed to the claimant. Applying section 47(5) of the Employment Act, the court placed the burden of proving unfair termination on the claimant and the burden of justifying dismissal on the employer. It found the claimant knew and interacted with the allegations - the compulsory leave letter referenced investigations, he made a presentation to the EMU, and appeared before the disciplinary committee - and that his assertion of ignorance of the reasons was unbelievable. Holding that the allegations of financial impropriety were a serious enough ground for dismissal and that fair procedure under section 45 was followed, the court dismissed the claim with costs on 22 November 2019 (Abuodha Jorum Nelson, J).

Key legal issues

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01

Whether the claimant proved unfair termination

Holding

The claimant failed to discharge his burden; he knew the allegations against him and was given opportunity to respond before EMU and the Board

Reasoning

The court held that the claimant interacted enough with the allegations - the compulsory leave letter referred to investigations, he was invited to make a presentation to the EMU and appeared before the disciplinary committee. His assertion that he was never told the reasons was found unbelievable, and he never alleged that he sought reasons and was denied. The court also found him evasive and argumentative in cross-examination.

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02

Whether valid grounds and fair procedure existed for the dismissal

Holding

Valid grounds existed (financial impropriety, fraudulent payments) and the dismissal followed fair procedure under section 45 of the Employment Act

Reasoning

The dismissal letter indicated the board found the claimant's defence unsatisfactory. The respondent's witness confirmed investigations preceded the compulsory leave, and the claimant appeared before the EMU and the disciplinary committee. Allegations of the magnitude involved justified dismissal of anyone implicated. The court therefore found the termination both substantively and procedurally fair.

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Legal principles established

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  • Under section 47(5) of the Employment Act, the burden of proving unfair termination rests on the employee while the burden of justifying the reasons for dismissal rests on the employer
  • Serious allegations of financial impropriety constitute valid grounds for dismissal of an employee implicated therein, where the employee is given an opportunity to respond

Court orders

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  1. 1.The claim is dismissed with costs

Authorities

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Legislation

  • Employment Actsection 47(5)
  • Employment Actsection 45
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (sections 45 and 47(5) applied)

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, "Samuel Mbote Mweya v National Water Conservation & Pipeline Corporation [2019] KEELRC 155 (KLR)", Case Analysis (2019). Cause No 1211 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/155/eng@2019-11-22

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