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Case Brief · caselaw.co.ke
ELRCDismissedCause 991 of 2014· [2019] KEELRC 1238 (KLR)

Johnson Ngugi v East Africa Breweries [2019] KEELRC 1238 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
28 June 2019
1,701 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that an employee must prove unfair termination, and falsified work records justified dismissal with costs against him.

What this practically means

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Executive summary

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The claimant, employed as a Customer Relationship Representative from 1st January 2010 on a monthly salary of Kshs 155,643.07 plus variable sales-based pay, was issued a show cause letter on 19th February 2014 over allegations of absconding work without good cause after a February 2014 audit compared his PDA outlet call reports with his vehicle tracker reports for January 2014 and revealed inconsistencies. He responded, attended a disciplinary hearing on 25th February 2014, and was terminated on 5th March 2014 with one month's salary in lieu of notice. The claimant contended the discrepancies arose from a faulty vehicle tracker and alleged the termination was malicious, part of a massive restructuring-driven termination process targeting employees with four or more years of service. The respondent maintained that the claimant falsified records and absconded, breaching the Business Code of Conduct, and that a fair disciplinary procedure was followed. The court found the claimant never produced evidence of any earlier report of a faulty tracker, and that the falsification of PDA records attacked his integrity and constituted valid grounds for termination. It held the employment relationship is based on trust; that absence without lawful cause is a ground for summary dismissal; that the burden of proving unfair or invalid termination lies on the employee; and that the claimant failed to discharge it, including on the malice and restructuring allegations. The procedure was found fair and compliant with the Employment Act. The claim was dismissed with costs on 28th June 2019.

Key legal issues

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01

Falsification of records and absconding as valid grounds for termination

Holding

The court found the claimant falsified PDA records to show he was at work in Kangemi while the vehicle tracker placed him along Mombasa road, attacking his integrity and constituting a valid ground for termination.

Reasoning

The claimant alleged his vehicle tracker was faulty, raising this in the show cause response, but produced no evidence of any earlier report of the fault. His own witness admissions acknowledged variance between the PDA and tracker. The court preferred the respondent's audit evidence of inconsistencies on two days in January 2014, concluding the misconduct breached the Business Code of Conduct.

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02

Burden of proof in unfair termination claims

Holding

The burden of proving that a termination was unfair or for invalid reasons rests on the employee, and the claimant failed to discharge it.

Reasoning

The claimant imputed malice, alleging the termination was part of a massive restructuring-driven termination process targeting long-serving employees. Despite pleading these serious allegations, he adduced no evidence of such massive terminations or resignations. The court held the evidentiary burden lay on the employee and was not discharged.

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03

Fairness of the procedure followed prior to termination

Holding

The procedure was fair and in accordance with the Employment Act requirements.

Reasoning

The claimant was issued a show cause letter on 19th February 2014, responded by email on 21st February 2014, attended a disciplinary hearing on 25th February 2014 where he gave explanations, and was invited to discuss the results before receiving a termination letter on 5th March 2014 with one month's salary in lieu of notice. This satisfied the procedural requirements.

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Legal principles established

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  • In a claim for termination of services, the burden of proving that a termination was unfair or for invalid reasons lies on the employee.
  • Employment relationship is founded on trust, and its erosion may justify termination.
  • Absence from duty without lawful cause is a ground for summary dismissal.

Court orders

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  1. 1.The claim is dismissed with costs

Authorities

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Legislation

  • Employment Actnot specified
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim)

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, "Johnson Ngugi v East Africa Breweries [2019] KEELRC 1238 (KLR)", Case Analysis (2019). Cause 991 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1238/eng@2019-06-28

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