Cheruiyot & 3 others v Sunrise(1976) Limited (Cause 391, 390, 389 & 388 of 2015 (Consolidated)) [2022] KEELRC 111 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the termination of the Claimants was substantively justified
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
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.
Whether the termination complied with procedural fairness under section 41 of the Employment Act
The termination was procedurally unfair as the Claimants were not subjected to any disciplinary process or hearing as envisaged under section 41
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.
The consequence of the Respondent failing to call any witnesses
The Respondent's case failed because its filed documents and submissions, unsupported by any witness testimony, amounted only to pleadings and not evidence
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.
What remedies flow from the unfair termination
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
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.
Legal principles established
#- 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
#- 1.Award of one month salary in lieu of notice to each Claimant
- 2.Award of 10 months' salary as compensation for the unlawful dismissal to each Claimant
- 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.Issuance of a certificate of service to each Claimant
- 5.Respondent to pay costs of the suit plus interest at court rates with effect from the date of the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance memorandum of claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.