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ELRCDismissed· [2019] KEELRC 264 (KLR)

Peter Murigi Mburu v Kenya Forest Services [2019] KEELRC 264 (KLR)

Employment and Labour Relations Court of Kenya
27 November 2019
NMNzioki wa Makau
2,347 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed an employee's unfair termination claim because he received a fair disciplinary hearing after being accused of forging his way into the job.

What this practically means

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Executive summary

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The Claimant, engaged as a Store Man II on KFS Grade 13 and stationed at the Respondent's Central Highlands Conservancy, sued alleging unfair termination on 14th December 2015 and withholding of terminal benefits. He sought a declaration of unfair termination, 12 months' compensation, one month's notice pay, terminal benefits, a certificate of service, costs and interest. The Respondent defended the dismissal on the ground that the Claimant secured employment by forging the Zonal Manager's signature and recommending himself for appointment, and that he had pending disciplinary and criminal matters, including a case at Makadara Law Courts. Both parties testified and filed submissions; the Claimant relied on authorities on the employer's statutory duty to prove reasons for termination, while the Respondent relied on authorities on the reasonable-employer test and summary dismissal for forgery. The court framed the dispute under Sections 41 and 43 of the Employment Act. It found that a hearing was held at which the Claimant was heard, his defence considered and termination recommended, and that he was accorded a proper and fair hearing before the disciplinary committee which found him guilty of forging the Zonal Manager's signature. Holding the claim unmerited, the court dismissed it with costs to the Respondent. The judgment is compressed; it does not expressly resolve the Claimant's evidence that the complainant supervisor never appeared and no document examiner testified, an evidential gap flagged for practitioners considering an appeal.

Key legal issues

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01

Procedural fairness under Section 41 of the Employment Act

Holding

The termination was procedurally fair because the Claimant was issued a notice to show cause, responded, was heard by a disciplinary committee, and appealed to the Board

Reasoning

The court set out Section 41(1) requiring an employer to explain the reasons for termination and allow representation. From the testimony and evidence, there was a hearing at which the Claimant was heard, his defence was considered and termination recommended. The Claimant attended both hearings and preferred an appeal which was heard and determined.

p. 3
02

Burden of proof in unfair termination claims

Holding

The Claimant bears the burden of proving the dismissal was unfair and unlawful, while the Respondent bears the burden of proving the reasons for termination

Reasoning

Relying on Section 43 of the Employment Act, the court framed the allocation of burdens and found that, as far as the employer was concerned, there was basis for the dismissal, including the pending criminal case before the Makadara Law Courts relating to the Claimant's conduct. On that footing the claim failed.

p. 3

Legal principles established

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  • Where an employee is accorded a proper and fair hearing before a disciplinary committee that finds him guilty of misconduct, an unfair termination claim founded on that dismissal is unmerited

Court orders

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  1. 1.The claim is dismissed
  2. 2.Costs of the suit awarded to the Respondent

Authorities

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Legislation

  • Employment ActSection 43
  • Employment ActSection 41(1)
  • Employment ActSection 43(2)
  • Employment ActSection 44(4)(g)
  • Constitution of Kenya, 2010Article 50

Cases cited (4)

  • Wyllis Collins Akeyo Muganda v Geothermal Development Company
    [2016] eKLR
  • Mary W. Ndirangu v Board of Trustees National Social Security Fund
    [2013] eKLR
  • Andrew Wafula Amutalla v Kenyatta University
    [2019] eKLR
  • William Kiaritha Gacheru v East African Packaging Industries Ltd
    [2016] eKLR
Jurisdiction invoked
First-instance employment claim under the Employment Act, 2007 (ss. 41, 43 and 44) before the Employment and Labour Relations Court; specific enabling provision not stated in the judgment

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, "Peter Murigi Mburu v Kenya Forest Services [2019] KEELRC 264 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/264/eng@2019-11-27

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