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ELRCPartially AllowedMemorandum of Claim dated 8th November 2018 (ELRC, Nairobi)· [2020] KEELRC 457 (KLR)

Amos Kitavi Kivite v Kenya Revenue Authority [2020] KEELRC 457 (KLR)

Employment and Labour Relations Court
24 September 2020
4,354 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld KRA's dismissal of an employee over fraudulent receipts, awarding only his admitted notice pay and pension.

What this practically means

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Executive summary

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The Claimant, employed by Kenya Revenue Authority from 18.10.2007 and rising to Supervisor, was terminated on 28.6.2018 for gross misconduct after making a medical refund claim of Kshs.35,000 for spectacles supported by receipts that Optica Limited denied issuing. He sued for a declaration of unfair termination, reinstatement, or alternatively damages, plus costs and interest. The respondent justified the dismissal under section 44(4)(g) of the Employment Act and its Staff Code of Conduct, and admitted liability only for notice pay, pension benefits and a certificate of service upon clearance. The court framed two issues: whether the termination was unfair and unlawful, and whether the reliefs were due. On procedure, it held that the show cause letter, written response, oral hearing, offer of accompaniment (waived by the claimant) and supply of the investigation report satisfied section 41 of the Employment Act. On substance, the claimant's admission that he used the receipts and received the payment, together with Optica's denial of issuing them, proved on a balance of probability a valid reason amounting to gross misconduct, though the employer opted for termination with notice pay rather than summary dismissal. The claimant therefore failed to discharge his burden under section 47(5). The declaration, reinstatement and damages were refused. However, exercising discretion on the catch-all relief, the court awarded the terminal dues and pension admitted in the defence, payable upon clearance, and dismissed the suit with no costs. Judgment was delivered online pursuant to the Covid-19 directives with the parties' consent, waiving Rule 28(3) of the ELRC Procedure Rules.

Key legal issues

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01

Whether the procedure followed before dismissal complied with section 41 of the Employment Act

Holding

Yes - the Claimant was issued a show cause letter, responded in writing, was heard orally, was informed of his right to be accompanied (which he waived) and was given the investigation report on request

Reasoning

The court found the mandatory requirements of section 41 satisfied: the employer explained the reasons in a show cause letter, heard the employee's written and oral representations, offered the right to be accompanied by a fellow employee, and supplied the investigation report before the hearing. Procedural fairness was therefore accorded and the dismissal met the procedural limb of section 45.

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02

Whether the reason for termination was valid

Holding

Yes - the respondent proved on a balance of probability that the claimant made a fraudulent medical claim of Kshs.35,000 using receipts that did not originate from Optica, amounting to gross misconduct under section 44(4)(g)

Reasoning

The claimant admitted presenting the receipts and receiving Kshs.35,000 in May 2017. Optica denied issuing the receipts. The investigator's evidence, unchallenged production of the Optica letter, and the claimant's failure to deny the documents established reasonable and sufficient grounds for the employer's conclusion, satisfying both section 44(4)(g) and the Staff Code of Conduct.

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03

Whether the claimant discharged his burden of proof under section 47(5) of the Employment Act

Holding

No - the claimant failed to discharge the burden, so the termination was not unfair or unlawful under section 45

Reasoning

Once the employer proved a valid reason and fair procedure, the burden resting on the employee under section 47(5) was not discharged. The claimant's complaints about not being shown the fake receipts and about the disciplinary committee's composition did not displace the findings of procedural compliance and substantive justification.

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04

Whether the claimant is entitled to the reliefs sought

Holding

Partially - the declaration, reinstatement and damages were refused, but terminal dues and pension were awarded on the basis of the respondent's admission in its defence

Reasoning

Having found the termination lawful, the court declined the declaration, reinstatement and damages. However, the respondent had pleaded readiness to pay three months' salary in lieu of notice (less liabilities), pension benefits under its Pension Trust Deed and Rules, and a Certificate of Service; the court granted those admitted dues, payable upon clearance.

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Legal principles established

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  • For a termination to pass the fairness test there must be both substantive justification and procedural fairness
  • An employer need only have reasonable and sufficient grounds to suspect an employee of a criminal offence against the employer to justify summary dismissal under section 44(4)(g)
  • The burden of proving unfair termination rests on the employee while the burden of justifying the grounds rests on the employer

Court orders

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  1. 1.Refusal to declare the termination unfair and unlawful as prayed
  2. 2.Refusal of reinstatement and of alternative damages for unlawful termination
  3. 3.Award to the Claimant of terminal dues and pension as set out in the termination letter dated 28.6.2018 and admitted in paragraph 9 of the defence (three months' salary in lieu of notice less any liability to the Respondent, pension benefits in line with the Respondent's Pension Trust Deed and Rules, and a Certificate of Service), payable after the Claimant completes clearance
  4. 4.Dismissal of the suit with no costs save for the award made on admission
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43, 44, 45, 47(5), 51(1))

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, "Amos Kitavi Kivite v Kenya Revenue Authority [2020] KEELRC 457 (KLR)", Case Analysis (2020). Memorandum of Claim dated 8th November 2018 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/457/eng@2020-09-24

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