Ireri v New Kenya Co-operative Creameries Ltd (Cause 113 of 2017) [2023] KEELRC 1049 (KLR)
The bottom line
#A Kenyan court awarded an employee 12 months' salary after her employer failed to prove theft allegations, but dismissed her bigger claim for lack of evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent justified the termination under Section 47(5) of the Employment Act
The respondent failed to discharge the burden; the termination was unfair under Section 45
The serious accusation of theft rested on the evidence of the gate guards and Mr Opiyo, neither of whom testified before the disciplinary panel or the court. The alleged stolen milk was never detained nor documented, no receipt issued for the cash sale, and no action taken against the guards. The respondent thus failed to prove the reason for termination.
Whether the claimant was entitled to the special damages claimed
The heads of claim for basic pay, house allowance, leave and retirement benefits were disallowed for want of proof
Special damages must be specifically pleaded and strictly proved. Although the claimant pleaded the heads of claim, she led no documentation or oral testimony establishing entitlement. Compensation to retirement is also objectionable because continued employment is never guaranteed.
What compensation is payable for the unfair termination
Twelve months' gross salary as compensation under Section 49(1)(c) as read with Section 50, plus one month's salary in lieu of notice
The accusations imputed a criminal offence but the evidence did not sufficiently disclose the claimant's culpability; the prosecution and termination were too harsh. Being a proper case for full compensation, the court awarded twelve months' gross salary, subject to taxes and statutory deductions.
Legal principles established
#- The burden of proving unfair termination lies on the employee while the burden of proving the reason or justification for termination lies on the employer
- Where an employer levels an accusation of theft, evidence approaching the criminal threshold of proof is desirable even if not sufficient to sustain a conviction
- Special damages must be specifically pleaded and strictly proved
- Courts should be wary of awarding compensation of salary up to retirement because employment can end prematurely
Court orders
#- 1.One month's salary in lieu of notice of Kshs.40,189.00
- 2.Twelve months' salary as compensation for unfair termination of Kshs.482,268.00
- 3.Costs of the suit and interest
- 4.Items (a) and (b) to be subject to taxes and statutory deductions
- Jurisdiction invoked
- Employment Act, Sections 45, 47(5), 49(1)(c) and 50
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ireri v New Kenya Co-operative Creameries Ltd (Cause 113 of 2017) [2023] KEELRC 1049 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1049/eng@2023-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.