Anthony Nasenya Sakwa v Capwell Industries Limited [2021] KEELRC 767 (KLR)
The bottom line
#A Kenyan court upheld an employee's dismissal for dishonesty but ordered his employer to pay an extra month's notice under the applicable CBA clause.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent proved valid and fair reasons for termination
The respondent proved valid reasons: loss of trust in the claimant's honesty arising from concealed bags of good rice while he was in charge of screenings, satisfying sections 43(1) and 45(2)
The claimant was on duty and solely in charge of the screening and disposal of screenings on the material night; he could not explain how good rice reached the husk area. His allegation of a witch-hunt by the union official was unproved. Applying the McKinley test, the dishonesty/trust issue went to the root of the employment relationship, and the respondent genuinely believed the reasons for termination existed.
Whether the claimant was accorded procedural fairness under section 41
Procedural fairness was satisfied: suspension letter stated reasons, notice of about 8 days to a disciplinary hearing, attendance with the chief shop steward, and signed minutes of the hearing
The claimant admitted attending the disciplinary hearing of 23 September 2016 and did not dispute the minutes, which bore his signature. He was advised to attend with the chief shop steward, who was present. The court therefore held the procedure met the legal threshold under the Employment Act.
Entitlement to notice pay under the CBA
The claimant, having served approximately 10 years 2 months, was entitled to 2 months' notice/pay under clause 3(a)(ii) of the CBA, not 1 month; award of one additional month's salary (Kshs 12,110/=)
The duration of employment (from July 2006) was undisputed and confirmed by RW1 and pay slips; the CBA clause did not distinguish casual from permanent service, and conversion to permanent terms would in any event have occurred by operation of law under section 37(1)(c) of the Employment Act.
Legal principles established
#- Under the Employment Act there is a shared burden of proof in unfair termination claims: the employee must prove termination occurred and was unfair under section 47(5), after which the employer must prove valid and fair reason under section 43(1) and 45(2).
- In employment disputes the standard of proof is on a balance of probability, not beyond reasonable doubt, and the employer need only prove reasons it genuinely believed to exist.
- Where an employer elects to terminate under a specific CBA clause, it is bound to comply with the notice period applicable to the employee's actual length of service.
Court orders
#- 1.Award to the claimant of one month's salary in the sum of Kshs 12,110/= being additional notice pay (two months' notice pay due under clause 3(a)(ii) of the CBA instead of the one month paid)
- 2.Dismissal of the rest of the claims (salary for September 2016, compensation for loss of earnings, paternity leave, annual leave, medical allowance, night shift allowance and service gratuity)
- 3.Each party to bear its own costs
- Jurisdiction invoked
- Original jurisdiction under the Employment and Labour Relations Court Act over a claim for unfair termination and terminal benefits
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Caroline Mueni Mbithi v Muri Mwaniki & Wamiti Advocates [2021] KEELRC 134 (KLR)[2021] KEELRC 134 (KLR)17 Dec 2021
Cite this brief
#Cite this brief
Caselaw, "Anthony Nasenya Sakwa v Capwell Industries Limited [2021] KEELRC 767 (KLR)", Case Analysis (2021). Cause No 309 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/767/eng@2021-10-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.