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ELRCDismissedCause No 81 of 2016· [2022] KEELRC 1391 (KLR)

Cheboror v Libya Oil Kenya Limited (Cause 81 of 2016) [2022] KEELRC 1391 (KLR)

Employment and Labour Relations Court
5 July 2022
5,279 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld an oil company's summary dismissal of a supervisor, ruling the employer had valid reasons and followed a fair disciplinary process.

What this practically means

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Executive summary

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The claimant, employed by the respondent from April 1, 2007 and serving as Dispatch Supervisor at the Nairobi terminal, was summarily dismissed by letter dated January 8, 2015 following investigations into the fraudulent shipment of an average of 3 million litres of product between 2012 and 2014. He sued for declarations of unfair/constructive dismissal and terminal dues and damages of Kshs.7,243,081.01, comprising notice pay, service pay, 20-year loss of earnings and 12 months' compensation. The respondent maintained that the dismissal was substantively justified under section 43 and procedurally fair under section 41 of the Employment Act, 2007, having conducted an investigation, a disciplinary hearing, and an appeal. The court framed two issues: whether the termination was unfair and whether the claimant was entitled to the reliefs sought. On substance, the claimant's own cross-examination admissions - failure to request verification emails, awareness of password misuse, handling of a fake stock movement record and KRA gate pass mismatch, and the concession that 'we all make mistakes, we are human' - led the court to find a valid reason for dismissal under section 44(4)(c), applying the genuine-belief test in section 43(2). On procedure, the court found substantial compliance with section 41: the claimant was investigated, given six days' notice of the disciplinary hearing with documents enclosed, informed of his rights, heard, signed the minutes, appealed, and declined a second appeal. The claimant thus failed to prove unfair dismissal on a balance of probabilities and was not entitled to any remedies. The suit was dismissed, with each party bearing own costs. Judgment was delivered virtually at Nairobi on July 5, 2022 by Dr. Jacob Gakeri, J.

Key legal issues

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01

Whether the employer had a valid and fair reason to summarily dismiss the claimant

Holding

Yes - the employer proved on a balance of probabilities that the claimant wilfully neglected and carelessly performed his duties as Dispatch Supervisor, attracting section 44(4)(c) of the Employment Act.

Reasoning

The claimant's own admissions on cross-examination showed failures in verification duties: he never requested verification emails, noticed password misuse without reporting it, handled a fake stock movement record dated August 6, 2014 whose KRA gate pass did not match, and admitted errors of omission in checking the KRA stamp. Guided by section 43(2), the court found the employer genuinely believed the claimant was guilty of gross misconduct as itemised in the dismissal letter.

02

Whether the procedure adopted by the employer was fair under section 41

Holding

Yes - the respondent substantially complied with section 41; the claimant was investigated, given six days' notice of the disciplinary hearing with documents enclosed, informed of his rights, heard, and given appeal rights which he partly exercised.

Reasoning

The claimant attended an investigatory meeting, then a disciplinary hearing with the documents enclosed, entitlement to call witnesses, tender documents and be accompanied by a colleague. He participated and signed the minutes without protest, appealed the dismissal, and chose not to pursue a second appeal. The absence of a warning letter was immaterial since summary dismissal requires no notice.

p. 10
03

Whether the claimant was entitled to notice pay, service pay, loss of earnings and damages

Holding

No - having failed to prove unfair termination, the claimant is not entitled to any of the remedies sought.

Reasoning

Remedies for unfair termination flow only from a finding of unfairness. Since the court found both a valid reason and a fair procedure, all heads - notice pay, service pay, 20-year loss of earnings and 12 months' compensation - fell away. Service pay was also in any event excluded for NSSF members under section 35(6) as argued by the respondent.

p. 12

Legal principles established

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  • For a termination to be fair, the employer must prove both a valid and fair reason and that a fair procedure was followed.
  • The reasons for termination are those the employer genuinely believed to exist at the time of termination.
  • Section 41 of the Employment Act sets the minimum standards of a fair procedure: explanation of grounds, hearing, accompaniment by a fellow employee, and consideration of representations.

Court orders

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  1. 1.The suit is dismissed
  2. 2.Parties to bear own costs

Authorities

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Legislation

  • Employment Act, 2007sections 35(6), 41, 43(1), 43(2), 44, 44(4)(c), 45, 45(2), 47(5)
  • Constitution of KenyaArticles 159(2)(d), 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (17)

  • Gilbert Mariera Makori v Equity Bank Limited
    [2016] eKLR
  • Mary Chemweno Kiptoi v Kenya Pipeline Co. Ltd
    [2014] eKLR
  • Lawrence Nyamichaba Ondari v National Hospital Insurance Fund
    [2018] eKLR
  • Cooperative Bank of Kenya Limited v Banking Insurance & Finance Union (K)
    [2017] eKLR
  • Nampak Corrugated Wadeville v Khoza
    (JA 14/98) [1998] ZALAC 24
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd
    [2013] eKLR
  • Josephat Mukhwana Waswa v Moi Teaching & Referral Hospital
    [2015] eKLR
  • Peter Masila Ngengya v Meya Agri Traders Limited
    [2018] eKLR
  • Patrick Abuya v Institute of Certified Public Accountants of Kenya (ICPAK) & another
    [2015] eKLR
  • Hassanath Wanjiku v Vanela House of Coffees
    [2018] eKLR
  • Elizabeth Wakanyi Kibe v Telkom Kenya Ltd
    [2014] eKLR
  • Onesmus Kinyua Magoiya v Prudential Life Assurance Kenya
    [2022] eKLR
  • Duncan Ndegwa Muriuki v Lasit Limited
    [2018] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
  • Naima Khamis v Oxford University Press (EA) Limited
    [2017] eKLR
  • Postal Corporation of Kenya v Andrew K. Tanui
    [2019] eKLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court under the Employment Act, 2007 (claim for unfair termination and terminal dues)

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, "Cheboror v Libya Oil Kenya Limited (Cause 81 of 2016) [2022] KEELRC 1391 (KLR)", Case Analysis (2022). Cause No 81 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1391/eng@2022-07-05

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