David Kipchumba Kogo v County Public Service Board Elgeyo Marakwet County [2019] KEELRC 2588 (KLR)
The bottom line
#A Kenyan court upheld an accountant's dismissal for suspected fraud, ruling employees must prove unfair termination and employers need only reasonable, not criminal-level, proof.
What this practically means
#Executive summary
#Key legal issues
#Substantive justification for termination
There existed justifiable grounds to terminate the Claimant's services, as unexplained payments far above his salary were made into accounts he did not deny owning
The Claimant did not deny ownership of the Equity and KCB accounts into which irregular payments of large sums were made, including Kshs. 841,000 in July 2017 which exceeded his salary. He failed to explain why the funds were paid to him. Fraud is a valid reason for termination and the employer need not meet the criminal standard of proof. The Court was thus persuaded that justifiable grounds existed for dismissal.
Procedural fairness of the disciplinary process
The process was fair: the Claimant was interdicted, asked to show cause, responded, attended a disciplinary hearing and made representations, with a right of appeal to the PSC
The Claimant was interdicted and simultaneously called upon to show cause, which he did by an elaborate written response. He was then summoned to a disciplinary hearing which he attended and made oral representations. The Board thereafter decided to dismiss him and advised him of the right of appeal to the Public Service Commission. The Court found no breach of fair procedure.
Burden of proof in unfair termination claims
The Claimant failed to discharge the statutory burden of proving unfair termination as he did not satisfactorily explain the deposits into his accounts
Section 47(5) places the burden of proving unfair termination on the employee. The Claimant's pleadings, witness statement and documents did not satisfactorily explain why funds well above his salary were paid into his accounts by the respondent. His explanation that the payroll process involved multiple individuals and verification was insufficient to displace the evidence of irregular payments.
Legal principles established
#- The burden of proving unfair termination lies on the employee under section 47(5) of the Employment Act
- Fraud is a justifiable reason for termination, and the employer need not meet the criminal standard of proof
Court orders
#- 1.The claim is dismissed
- 2.The Claimant to pay costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (claim for unfair termination)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Kipchumba Kogo v County Public Service Board Elgeyo Marakwet County [2019] KEELRC 2588 (KLR)", Case Analysis (2019). Cause No 22 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2588/eng@2019-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.