Gideon Muteti Njau v Brookside Dairy Limited [2020] KEELRC 1368 (KLR)
The bottom line
#A Kenyan court ruled Kenya Breweries' dismissal of a salesman unfair because the fraud reason in the dismissal letter was never proven or tested.
What this practically means
#Executive summary
#Key legal issues
#Whether the reasons for dismissal proved at trial could differ from those stated in the dismissal letter
The reasons for termination are those the employer genuinely believed and acted on at the time of termination; a trial court cannot import new reasons not cited in the dismissal letter.
Section 43(2) of the Employment Act fixes the reasons for termination as matters the employer genuinely believed to exist at the time of termination. The dismissal letter cited involvement in fraudulent activities, but the defence witnesses at trial advanced four different grounds (failure to reconcile sales, loss of stock, breach of security regulations and use of another account). The fraudulent activities charge was never tested at the shop floor and was unproved, so the trial court erred in substituting the enlarged grounds for the stated reason.
Whether termination was substantively and procedurally fair
The dismissal was unfair: the stated reason (fraud) was untested and unproved, and no charge was served on the employee for response.
Section 43 requires the employer to prove the reason for termination, and section 41 supplies the procedural fairness mechanism through which this is done. There was no evidence that any charge relating to fraudulent activities was served on the Appellant for his response at the shop floor, so the fraud allegation remained untested. Substantive justification therefore failed and the termination was unfair.
Duties of the first appellate court
On a first appeal the court must reconsider and re-evaluate the evidence and draw its own conclusions, mindful that it did not hear the witnesses first hand.
As a first appellate court, it must re-examine the evidence afresh and reach its own conclusions, though without the advantage of seeing witnesses demeanour. Applying this standard, the court re-evaluated the dismissal letter, the trial evidence and the applicable statutory provisions, and concluded that the trial Magistrate's evaluation was erroneous.
Legal principles established
#- An employer must prove the reason for termination; if it fails, the termination is deemed unfair under section 45 of the Employment Act.
- A valid termination requires both substantive justification and procedural fairness.
- An employer cannot at trial enlarge or substitute the reasons for dismissal given in the dismissal letter; only reasons genuinely believed and communicated at termination count.
Court orders
#- 1.Appeal allowed
- 2.Judgment of the trial court dated 20 May 2013 set aside and replaced with judgment allowing the Appellant's claim
- 3.Respondent to pay 6 months' salary in compensation of Kshs 182,970
- 4.Respondent to pay 1 month's salary in lieu of notice of Kshs 30,495
- 5.Respondent to pay salary for September 2011 of Kshs 30,495
- 6.Respondent to pay leave pay (64.65 days @ 1,016.49) of Kshs 65,716, total award Kshs 309,676
- 7.Respondent to pay costs of the appeal and those in the lower court
- On appeal from
- Principal Magistrate's Court (trial court, Mombasa)
- Lower court suit commenced by plaint filed 17 October 2011 (number not stated)
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction, appeal transferred from the High Court by ruling of Chepkwony J dated 14 March 2019 following a Preliminary Objection based on Article 165(5)(b) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gideon Muteti Njau v Brookside Dairy Limited [2020] KEELRC 1368 (KLR)", Case Analysis (2020). Civil Appeal No 71 of 2013 (formerly High Court at Mombasa Civil Appeal No 71 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1368/eng@2020-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.