Otieno v Kenya Petrolium Refineries Limited (Cause E078 of 2022) [2023] KEELRC 1264 (KLR)
The bottom line
#A Kenyan court confirmed an employer had valid reasons to dismiss an employee for unaccounted funds, but still ordered notice pay because summary dismissal wasn't justified.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent had a valid and substantive reason to terminate the claimant's employment
Yes - the claimant failed to account for Ksh. 121,945, submitted excess and questionable receipts, and could not explain variances; his conduct fell below the standard required of an accounting officer
The claimant, as the officer entrusted with canteen operations and accounting, failed to account for Ksh. 121,945, produced excess receipts exceeding the variance, submitted photocopy receipts not serialised or chronologically dated, and could not explain expenses despite holding the office for over six years. Positions involving funds carry a higher duty of accountability, so the reasons were valid and justified.
Whether the procedure adopted met the requirements of Sections 41 and 45 of the Employment Act
Largely yes - the claimant was issued a notice to show cause, responded, and appeared before a disciplinary committee on three occasions; however, no evidence was given as to why summary dismissal rather than a less punitive sanction was chosen
The court found that the claimant was given a notice to show cause, replied, and was interviewed by a disciplinary committee on three occasions, satisfying procedural requirements. But the employer led no evidence justifying summary dismissal over a less punitive sanction, and on that basis notice pay was found due despite the valid reasons for termination.
Whether reinstatement was available as a remedy
No - reinstatement would result in a great injustice given the claimant's conduct in handling finances
The court reasoned that since the claimant dealt with finances from which monies were unaccounted for, submitted differing amounts with excess receipts, and tendered receipts with wrong amounts or dates, returning him to his position without loss of benefits would be unjust. Reinstatement was therefore refused, with the alternative reliefs of notice pay and dues for days worked granted.
Legal principles established
#- Under section 47(5) of the Employment Act, the burden of proving unfair termination lies with the employee, discharged upon establishing a prima facie case that termination fell outside the section 45 threshold
- An employer must not only show valid reasons but must also demonstrate compliance with the procedural strictures of section 41 of the Employment Act
- Positions involving handling of funds attract a higher duty and degree of accountability and trust
- Wages are due for days actually worked regardless of the reason for termination
Court orders
#- 1.Notice pay of Ksh. 96,088
- 2.Pay for 13 days worked in June 2022 of Ksh. 41,638.20
- 3.Certificate of service to be issued upon clearance with the employer
- 4.50% costs of the suit to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otieno v Kenya Petrolium Refineries Limited (Cause E078 of 2022) [2023] KEELRC 1264 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1264/eng@2023-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.