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ELRCDismissedCause No 22 of 2018· [2019] KEELRC 2588 (KLR)

David Kipchumba Kogo v County Public Service Board Elgeyo Marakwet County [2019] KEELRC 2588 (KLR)

Employment and Labour Relations Court
28 November 2019
1,402 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, an accountant formerly employed by the Public Service Commission and seconded in 2012 to the County Public Service Board for Elgeyo Marakwet, was interdicted on 27 August 2017 over allegations of defrauding the County Government of over Kshs. 1,500,000 and falsification of records, and was dismissed by letter dated 6 October 2017. He claimed the allegations were baseless and that he was never given an opportunity to defend himself before interdiction, and that his written response raising weighty concerns was ignored. The respondent maintained that due process was followed, that the Claimant made both written and oral representations before the Board, and that he was found culpable for the loss of County funds following an audit that revealed irregular payments to accounts he held at Equity Bank (Kshs. 1,667,888) and KCB (Kshs. 1,216,101.98). At trial, the Claimant admitted receiving transfers far above his monthly salary of Kshs. 97,000, including Kshs. 841,000 in July 2017, and did not deny ownership of the accounts. The Court held that under section 47(5) of the Employment Act the burden of proving unfair termination lies on the employee, which burden the Claimant failed to discharge as he did not satisfactorily explain the deposits. Applying the principle that fraud justifies termination without the employer meeting the criminal standard of proof, the Court found both substantive justification and a fair process: 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 claim was dismissed with costs on 28 November 2019 (Abuodha Jorum Nelson, Judge).

Key legal issues

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01

Substantive justification for termination

Holding

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

Reasoning

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.

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02

Procedural fairness of the disciplinary process

Holding

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

Reasoning

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.

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Burden of proof in unfair termination claims

Holding

The Claimant failed to discharge the statutory burden of proving unfair termination as he did not satisfactorily explain the deposits into his accounts

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The claim is dismissed
  2. 2.The Claimant to pay costs of the suit

Authorities

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Legislation

  • Employment Actsection 47(5)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (claim for unfair termination)

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, "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.