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ELRCPartially AllowedCause No. 391 of 2015 (Consolidated with three other causes, lead file)· [2022] KEELRC 111 (KLR)

Cheruiyot & 3 others v Sunrise(1976) Limited (Cause 391, 390, 389 & 388 of 2015 (Consolidated)) [2022] KEELRC 111 (KLR)

Employment and Labour Relations Court
31 May 2022
2,557 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan employer who sacks staff over mere suspicion, without a hearing or evidence, will pay months of salary in compensation.

What this practically means

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Executive summary

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Four claimants, all team leaders in weeding at the Respondent's farm, filed consolidated memoranda of claim in December 2015 alleging that their summary dismissal on 28th February 2015 was unlawful and unprocedural. They sought declarations of nullity, reinstatement, or alternatively terminal dues including notice pay, leave pay, service pay, house allowance, twelve months' compensation for unfair dismissal, February 2015 salary, certificates of service, costs and interest. Their case was that 8 litres of milk were found on the staff bus they were travelling in, bought illegally from the neighbouring Marula farm, and because no employee owned the milk, the Claimants were dismissed merely for being team leaders, without any disciplinary hearing under section 41 of the Employment Act. The Respondent admitted the employment but contended the dismissal was for lawful cause, alleging the Claimants bought the milk and failed to display the integrity expected of team leaders. At trial the 1st Claimant testified; the Respondent called no witnesses, and its documents and submissions remained pleadings without evidential value. The court framed three issues: whether the employment was unfairly terminated, whether due process was followed, and whether the Claimants were entitled to the reliefs sought. It found no disciplinary process was conducted, that the reasons for termination were neither valid nor established, and that the dismissal was unfair and unjustified. Each Claimant was awarded one month's notice pay, ten months' compensation, February 2015 salary (less statutory deductions), and a certificate of service. Claims for leave pay, service pay and house allowance failed on the evidence. The Respondent was ordered to pay costs with interest at court rates from the date of judgment.

Key legal issues

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01

Whether the termination of the Claimants was substantively justified

Holding

The termination was not substantively justified; the Claimants were held liable merely because they were team leaders aboard a bus containing 8 litres of milk which no one owned up to, without proof linking them to the milk

Reasoning

The Claimants were summarily dismissed after milk was found on the staff bus they were travelling in. No one was identified as having bought the milk; liability was imposed solely because they were team leaders. With no evidence from the Respondent, the reasons for termination were neither proved nor established. The court found the dismissal lacked substantive justification.

p. 6
02

Whether the termination complied with procedural fairness under section 41 of the Employment Act

Holding

The termination was procedurally unfair as the Claimants were not subjected to any disciplinary process or hearing as envisaged under section 41

Reasoning

The court found no evidence that the Claimants were subjected to any disciplinary process before the summary dismissal. Section 41 requires notification and a hearing before termination on grounds of misconduct. The Respondent called no witnesses and its filed documents remained untested pleadings, so it failed to demonstrate compliance with the mandatory procedural requirements of section 41 of the Employment Act, 2007.

p. 6
03

The consequence of the Respondent failing to call any witnesses

Holding

The Respondent's case failed because its filed documents and submissions, unsupported by any witness testimony, amounted only to pleadings and not evidence

Reasoning

Although the Respondent filed a defence and documents including a muster roll, it called no witnesses. The court held that such documents remained pleadings and could not prove the alleged confession by the Claimants or that leave and house allowance had been paid. Unsworn documentary material and submissions unsupported by testimony cannot discharge an employer's burden of proof under sections 43 and 45 of the Employment Act.

p. 6
04

What remedies flow from the unfair termination

Holding

Each Claimant was awarded one month's salary in lieu of notice, ten months' salary as compensation for unfair dismissal, February 2015 salary, and a certificate of service

Reasoning

Having found the dismissal unfair and unjustified, the court exercised its remedial jurisdiction under the Employment Act. It awarded notice pay, February 2015 salary (which was admitted unpaid), ten months' compensation in lieu of the twelve months sought, and certificates of service. Claims for leave, service pay and house allowance failed on the evidence, notably the Claimant's admissions of NSSF membership, receipt of house allowance and the muster roll record.

p. 6

Legal principles established

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  • An employer alleging summary dismissal must demonstrate reasonable and sufficient grounds linking the employee to the misconduct; mere suspicion is not enough
  • In any claim arising out of termination, the employer bears the burden of proving the reason(s) for termination, failing which the termination is unfair under section 45 of the Employment Act
  • Documents filed but unsupported by testimony do not constitute evidence; untested documents remain pleadings

Court orders

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  1. 1.Award of one month salary in lieu of notice to each Claimant
  2. 2.Award of 10 months' salary as compensation for the unlawful dismissal to each Claimant
  3. 3.Payment of salary for February 2015 to each Claimant: Kshs 100,980 for the 1st Claimant (Grace Cheruiyot) less statutory deductions; Kshs 100,980 for the 2nd Claimant (Hellen Mokeira Oenga) less statutory deductions; Kshs 79,764 for the 3rd Claimant (Carolyne Kerubo Matoke) less statutory deductions; Kshs 79,764 for the 4th Claimant (Joyce Gathoni Mburu) less statutory deductions
  4. 4.Issuance of a certificate of service to each Claimant
  5. 5.Respondent to pay costs of the suit plus interest at court rates with effect from the date of the judgment

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 45
  • Employment Actsection 44(4)(g)
  • Employment Act2007 edition (referred to generally)

Cases cited (4)

  • Silas Owiti Oluoch and Another V Fidelity Commercial Bank Limited
    [2017] eKLR
  • Nicholas Otinyu Muruka vs. Equity Bank Limited
    Nairobi ELRC Case No. 25 of 2013
  • Faith Gacheru V Golf Key Casino
    [2018] eKLR
  • Daniel Raiti Ogeto Vs College Management Board Acting for Elgon View Board
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance memorandum of claim)

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, "Cheruiyot & 3 others v Sunrise(1976) Limited (Cause 391, 390, 389 & 388 of 2015 (Consolidated)) [2022] KEELRC 111 (KLR)", Case Analysis (2022). Cause No. 391 of 2015 (Consolidated with three other causes, lead file). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/111/eng@2022-05-31

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