Kosgey v Eastern Produce Kenya Limited (Cause 48 of 2020) [2023] KEELRC 1050 (KLR)
The bottom line
#Kenya's Employment Court dismissed a Kshs 23 million unfair termination claim because the employer proved valid reasons and followed a fair disciplinary procedure.
What this practically means
#Executive summary
#Key legal issues
#Whether the reasons for the summary dismissal were valid and fair
The Respondent proved valid and justifiable reasons: negligence and dereliction of duty, failure to address grievances, illegal grazing and mishandling of employee discipline
The Claimant conceded that security was part of his docket, admitted verbally terminating three employees and reinstating two, and admitted taking responsibility for damage. His assertion that termination could be hurried because payroll was closing had no evidential support. The Respondent's witnesses corroborated the allegations of dereliction, breakdown in security and insubordination, discharging the employer's burden under Sections 45(2) and 47(5).
Whether the disciplinary procedure was fair
A fair procedure was followed: the Claimant was suspended on full pay, issued a notice with charges and particulars, attended the hearing with representatives of his choice and was heard, and had an appeal which was considered
The suspension letter did not detail the accusations but required no response and informed the Claimant he could access records. The disciplinary notice of April 17, 2020 contained the charges and particulars and his rights. The Claimant testified he attended the hearing with two chosen representatives and was given ample time to prepare, and never alleged in pleadings or evidence that he sought more time and was refused. An appeal was heard and dismissed on May 5, 2020.
Allocation of the burden of proof in unfair termination claims
The employee bears the burden of proving unfair termination under Section 47(5); the employer bears the burden of justifying the reasons; the two burdens are mutually exclusive
The court framed the statutory allocation of burdens as the starting point: the Claimant had to prove unfairness, and the Respondent had to justify the reasons. Neither party's failure discharges the other's burden. On the evidence, the Respondent discharged its burden to the required standard while the Claimant failed to discharge his.
Legal principles established
#- Under Section 47(5) of the Employment Act the burden of proving unfair termination lies on the employee while the burden of justifying the reason for termination lies on the employer, and these burdens are mutually exclusive
- A termination is unfair under Section 45(2) where the employer fails to prove a valid and fair reason related to the employee's conduct, capacity or compatibility and a fair procedure
Court orders
#- 1.The claim is dismissed with costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, ss 45(2) and 47(5))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kosgey v Eastern Produce Kenya Limited (Cause 48 of 2020) [2023] KEELRC 1050 (KLR)", Case Analysis (2023). Cause No 48 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1050/eng@2023-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.