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ELRCPartially AllowedCause No 38 of 2017· [2019] KEELRC 2602 (KLR)

Aggrey Ateya Musanga v Ken Knit (K) Ltd [2019] KEELRC 2602 (KLR)

Employment and Labour Relations Court of Kenya at Eldoret
28 November 2019
1,750 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 held that employers must prove the reason for firing an employee, but the worker who refused to return to work lost his unfair termination claim.

What this practically means

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Executive summary

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The claimant, employed by the respondent from around 2000/2002 as a knitter and later a driver assistant (loader), was suspended on 6th December 2013 following an alleged siphoning of fuel from vehicle KBV 907V. CCTV footage and a fuel consumption graph prompted an investigation; a jerrican containing diesel was found in the canteen, and the claimant, the driver and a colleague were arrested. Police investigations found no evidence directly linking the claimant to the theft of fuel. The respondent contended that the claimant was never terminated but was recalled to work by letter dated 15th February 2014 and through intermediaries, and that he refused to report back. The claimant maintained he was asked to return only on condition that he admitted siphoning fuel, which he refused. The court applied Section 43(1) of the Employment Act, holding that the employer bears the burden of proving valid reasons for termination. The respondent's reliance on the police findings and its reinstatement of the suspended employees was treated as an admission that no valid or justifiable reason existed. However, the claimant's failure to resume duties mitigated the respondent's blameworthiness, so no finding of unfair termination was made. The court awarded one month's salary in lieu of notice (Kshs. 10,778) and salary for the suspension period (Kshs. 32,234), totalling Kshs. 43,112, plus costs. Claims for overtime and service pay failed for want of evidence and NSSF registration respectively.

Key legal issues

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01

Burden of proving reasons for termination

Holding

The burden lies on the employer; failure to prove a valid reason renders the termination unfair

Reasoning

Section 43(1) of the Employment Act requires an employer to prove the reason or reasons for termination. The respondent's decision to reinstate the claimant after police investigations found no evidence linking him to fuel theft was an admission that it had no valid or justifiable reason to terminate his services.

p. 2
02

Effect of claimant's refusal to resume duties

Holding

The claimant's refusal to return to work despite recall mitigated the respondent's liability, defeating a finding of unfair termination but not an award of notice pay and salary for the suspension period

Reasoning

Although the respondent lacked a valid reason, the claimant was recalled to work by the driver and personnel officer and by letter dated 15th February 2014 but never reported back. The claimant did not verify his assertion that reinstatement was conditional on an admission of guilt, so his failure to resume duties mitigated the respondent's blameworthiness.

p. 2
03

Claims for overtime and service pay

Holding

Both claims failed: overtime for lack of evidence, and service pay because the claimant was registered with NSSF

Reasoning

The claimant adduced no sufficient evidence to substantiate overtime. Registration with NSSF disentitles an employee to service pay. No leave pay was found payable on the evidence before the court.

p. 3

Legal principles established

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  • Under Section 43(1) of the Employment Act the employer bears the burden of proving the reason or reasons for termination, failing which the termination is deemed unfair

Court orders

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  1. 1.Respondent to pay the claimant one month's salary in lieu of notice of Kshs. 10,778
  2. 2.Respondent to pay the claimant salary for the period of suspension (6th December 2013 to 25th February 2014) of Kshs. 32,234
  3. 3.Total award of Kshs. 43,112
  4. 4.Respondent to pay costs of the suit

Authorities

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Legislation

  • Employment ActSection 43(1)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Section 43(1) applied); establishment jurisdiction of the ELRC

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, "Aggrey Ateya Musanga v Ken Knit (K) Ltd [2019] KEELRC 2602 (KLR)", Case Analysis (2019). Cause No 38 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2602/eng@2019-11-28

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