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ELRCPartially AllowedNot stated in judgment· [2023] KEELRC 1525 (KLR)

Osoro v Elgon View College & 2 others (Civil Appeal E023 of 2022) [2023] KEELRC 1525 (KLR)

Employment and Labour Relations Court
15 June 2023
MOMaureen Onyango
4,383 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld a cook's unfair termination award but found the employer had reasonable grounds to suspect theft, only raising the notice pay.

What this practically means

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court at Eldoret against the judgment of Hon. L. Kassam, Chief Magistrate delivered on 28th February 2022. The Appellant, formerly employed as a cook, sued claiming unfair and unlawful dismissal after being accused of stealing money from the 2nd and 3rd Respondents' house; the trial court found the dismissal unprocedural and awarded Kshs 6,896 in lieu of notice, Kshs 20,000 as two months' gross salary, Kshs 30,000 compensation for unfair termination, costs and interest. The Appellant appealed, seeking enhanced reliefs. The appeal was disposed of by written submissions. The court held that the 3rd Respondent's failure to testify did not render the evidence unchallenged since a joint defence was filed and the evidence did not single out any Respondent. On the merits, the court found that although the trial court correctly held there was no formal hearing, it misdirected itself in finding no valid reason for termination: there were reasonable grounds to suspect the Appellant and his co-worker of stealing or recklessly causing the loss of the money, justifying termination under section 44(4) of the Employment Act. The ground regarding the trial court's failure to consider the Appellant's submissions disclosed an error on the face of the record but no prejudice. Claims for annual leave failed for want of proof of special damages, and the NSSF claim was held to be for NSSF itself to resolve. The court substituted the notice pay with Kshs 10,000, upheld the other awards and costs, and directed each party to bear its own costs of the appeal as it only partially succeeded.

Key legal issues

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01

Whether there was a valid reason for the termination of the Appellant's employment

Holding

There were reasonable grounds to suspect the Appellant and his co-worker stole the money or recklessly handled the employer's property; the trial court erred in finding there was no valid reason

Reasoning

Money was lost from the locked main house with no break-in; the Appellant and the house help had access to the house as confirmed by defence witnesses. Section 44(4) of the Employment Act permits summary dismissal where an employee is suspected on reasonable grounds of committing a criminal offence against the employer's property. Accordingly the Respondents had reasonable grounds to terminate the employment.

p. 8
02

Whether the failure of the 3rd Respondent to testify rendered the Appellant's evidence uncontroverted

Holding

No; a joint defence was filed and all the evidence adduced was for all the Respondents, and not all parties sued must give evidence

Reasoning

The Appellant did not plead for judgment jointly or severally and adduced no evidence directly implicating the 3rd Respondent. Where parties are jointly or severally sued, not all must give evidence, and a witness other than a party may testify on their behalf. The joint defence evidence covered all Respondents.

p. 6
03

Whether the trial court erred in failing to consider the Appellant's submissions

Holding

It was an error on the face of the record, but caused no prejudice and is not a valid ground for overturning a decision in a case where witnesses were heard

Reasoning

The submissions were duly filed and stamped as received on 9th September 2021, contradicting the trial court's finding. However, all issues raised in the submissions were captured in the judgment, so no prejudice was suffered and the decision would not have been different.

p. 8
04

Whether the Appellant proved the claim for annual leave

Holding

The claim, being one of special damage, was not proved; the letters relied on gave conflicting dates of employment

Reasoning

Apart from praying for leave for the entire period worked, no evidence was adduced in support. There was no proof of the number of years worked or years when leave was not taken, and the two letters relied upon variously stated the date of employment as November 2014 and January 2010 without explanation of the variance.

p. 8
05

Whether the pay in lieu of notice award should stand

Holding

The award of Kshs 6,896 was an error; substituted with Kshs 10,000, the Appellant's confirmed monthly salary

Reasoning

Both the Appellant in testimony and the 2nd Respondent confirmed the monthly salary at termination was Kshs 10,000. The trial court gave no reason for awarding Kshs 6,896 instead. The appellate court set that figure aside and substituted Kshs 10,000.

p. 9

Legal principles established

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  • A first appellate court must consider and evaluate the evidence adduced and draw its own conclusions, bearing in mind it did not hear and see the witnesses
  • An appellate court will not interfere with the exercise of a trial court's discretion unless it misdirected itself or was clearly wrong resulting in misjustice
  • Under section 44(4) of the Employment Act, an employer may summarily dismiss an employee suspected on reasonable grounds of having committed a criminal offence against the employer's property

Court orders

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  1. 1.The award of 1 month's salary in lieu of notice of Kshs 6,896 is set aside and substituted with Kshs 10,000
  2. 2.The award of 2 months' salary for June and July is sustained
  3. 3.The award of 3 months' salary in compensation is sustained
  4. 4.The award of costs and interest by the trial court is not disturbed
  5. 5.Each party shall bear its own costs of the appeal

Authorities

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Legislation

  • Employment Actsection 37(2)
  • Employment Actsections 43 and 45
  • Employment Actsection 44(4)
  • Employment Actsection 47(5)
  • Employment Actsection 49

Cases cited (5)

  • Selle & Another Vs Associated Motor Boat Company Ltd & Others
    [1968] EA 123
  • Gibson D. Mwanjala Vs Kenya Revenue Authority
  • Thomas Sila Nzivo vs Bamburi Cement Limited
    2014 eKLR
  • Mbogo & Another vs Shah
    [1968] EA
  • Ol Pejeta Ranching Limited v David Wanjau Muhoro
    Civil Appeal No. 42 of 2015
On appeal from
Chief Magistrate's Court
Not stated in judgment
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court (appeal against judgment in an employment claim)

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, "Osoro v Elgon View College & 2 others (Civil Appeal E023 of 2022) [2023] KEELRC 1525 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1525/eng@2023-06-15

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