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ELRCDismissed· [2021] KEELRC 2340 (KLR)

Laban Kimutai v Eldoret Club [2021] KEELRC 2340 (KLR)

Employment and Labour Relations Court of Kenya
25 March 2021
JAJ. N. Abuodha
4,674 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed an employer's dismissal of a club manager over financial irregularities, provided it followed fair disciplinary procedure.

What this practically means

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Executive summary

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The Claimant, formerly the respondent club's Secretary/Manager on a three-year fixed term contract running from 1st January 2018 to 31st December 2020 at a basic salary of Kshs. 141,725 per month, was summarily dismissed on 17th December 2018 following a break-in at the club on the night of 18th/19th June 2018 in which about Kshs. 700,000 was stolen. He was sent on compulsory leave, issued show cause letters, and taken through disciplinary proceedings premised on a forensic audit which identified losses of about Kshs. 5,589,560 across six areas including non-banked daily collections, receipted but unbanked cheques, unaccounted petty cash, unreconciled Mpesa amounts and unsupported IOUs. He sought a declaration that the termination was unlawful, unprocedural and unfair, plus terminal dues of Kshs. 8,010,693 and costs. The respondent justified the dismissal on gross misconduct, financial impropriety and negligence, highlighting the Claimant's instruction to receipt a member's cheque of Kshs. 368,000 but not bank it. Applying Section 47(5) of the Employment Act on burden of proof and the balance of probability standard, the Court found the reasons for termination valid and the procedure fair, noting the Claimant was heard and informed of his rights. The claim was dismissed in its entirety with costs to the respondent.

Key legal issues

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01

Validity of the reasons for termination

Holding

The financial malpractices identified in the forensic audit, notably the receipting but non-banking of a Kshs. 368,000/= cheque, constituted valid and fair grounds for dismissal

Reasoning

The Court found the evidence of RW3 (Mr. Chirchir), who was familiar with the Claimant's handwriting, persuasive that the Claimant instructed the accountant to receipt Laban Mugo's cheque but not bank it. Applying the balance of probability standard, the Court held this was an obvious financial malpractice which, together with the Claimant's supervisory failures over daily banking, petty cash, Mpesa reconciliation and IOUs, constituted reasonable grounds for dismissal.

p. 5
02

Fairness of the procedure before dismissal

Holding

The respondent followed a fair procedure: compulsory leave, show cause letters, responses, supply of the audit report and disciplinary hearings at which the Claimant was informed of his right to be accompanied and to call witnesses

Reasoning

The Court was satisfied that the Claimant was taken through show cause letters which he answered, was given the forensic audit report, attended disciplinary hearings, and was informed of his right to be accompanied by a person of his choice including a lawyer. The initial proceedings were withdrawn to accord him the right to defend himself against new evidence. The Court found no merit in the complaints of bias.

p. 6

Legal principles established

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  • In unfair termination disputes the burden of proving unfair termination rests on the employee while the burden of justifying the grounds for termination rests on the employer (Section 47(5), Employment Act)
  • A termination is unfair where the employer fails to prove a valid and fair reason and a fair procedure (Section 45, Employment Act)
  • The standard of proof in employment disputes is on a balance of probability, not beyond reasonable doubt
  • The Court will not second-guess an employer's reasons for dismissal unless they are so flawed that no reasonable employer would consider dismissal appropriate

Court orders

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  1. 1.The claim is dismissed with costs
  2. 2.It is so ordered

Authorities

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Legislation

  • Employment ActSection 47(5)
  • Employment ActSection 45
Jurisdiction invoked
Original jurisdiction under the Employment Act (ELRC claim for unfair termination and wrongful dismissal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Laban Kimutai v Eldoret Club [2021] KEELRC 2340 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2340/eng@2021-03-25

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