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ELRCDismissedMemorandum of Appeal dated 21st November 2022 (appeal from Butali MELRC No. 5 of 2020)· [2023] KEELRC 1693 (KLR)

Ayungu v West Kenya Sugar Company Limited (Employment and Labour Relations Appeal 19 of 2023) [2023] KEELRC 1693 (KLR)

Employment and Labour Relations Court
13 July 2023
3,727 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court upheld a driver's dismissal for fuel theft, confirming that employers win when they follow fair procedure and have solid evidence.

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 Kakamega against the judgment of Hon. Z.J. Nyakundi (SPM) delivered on 21st October 2022 in Butali MELRC No. 5 of 2020, which had dismissed the claimant's claim for unfair termination, certificate of service, notice pay, leave, house allowance, overtime and underpayment totalling Kshs. 2,489,592/=. The claimant, a driver dismissed for allegedly siphoning 31.9 litres of fuel from truck KCR 206Y, appealed on grounds that the magistrate erred in finding the case unproved, in relying on the Fuel Level Sensor (FLS) evidence without calibration, and in finding procedural compliance. The appeal was canvassed by written submissions. The court framed two issues: whether the magistrate reached the wrong conclusion on substantive and procedural fairness, and entitlement to reliefs. Guided by Selle v Associated Motor Boat Co, the court re-evaluated the record and found the claimant had never pleaded that the FLS was faulty and had himself acknowledged at the disciplinary stage that the system worked well, rendering the faultiness argument an afterthought. The reasonable-employer test from British Leyland v Swift was upheld on substantive justification. On procedure, the court found full compliance with section 41 of the Employment Act: notice, written and oral response, union representation, and an internal appeal; the complaint over the choice of representatives was also an afterthought. The court adopted Walter Ogal Anuro on the dual fairness test but held both limbs were satisfied. The appeal was dismissed entirely with costs to the respondent, the trial judgment upheld, with a right of appeal in 30 days.

Key legal issues

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01

Whether the termination was substantively fair despite the appellant's claim that the Fuel Level Sensor (FLS) was faulty

Holding

Substantive fairness was upheld; the trial court's reliance on the FLS graph evidence and the reasonable-employer test was affirmed, and no evidence or pleading established the FLS was faulty

Reasoning

The court noted the appellant's statement of claim did not plead that the FLS was faulty, and the appellant had earlier acknowledged the system worked well. DW2 explained the sensor's operation, including false alerts, and produced graphs. The trial court applied the British Leyland reasonable-employer test, which the appellate court upheld, finding substantial justification for dismissal.

p. 6
02

Whether the dismissal complied with section 41 of the Employment Act (procedural fairness)

Holding

Procedural fairness was satisfied: the appellant was informed of the charges, responded in writing and verbally, was accompanied by two union representatives, and had an internal appeal

Reasoning

The court reviewed the record and found the appellant received a notice to show cause, responded, attended a disciplinary hearing with two union representatives, and appealed internally. The complaint about the choice of union representatives was not pleaded and thus was an afterthought. Section 41 compliance was found.

p. 8
03

Applicable standard of review on appeal from a trial court

Holding

The appeal is by way of retrial under Selle v Associated Motor Boat Co; the appellate court re-evaluates evidence but makes allowance for not having seen witnesses

Reasoning

The court invoked the settled Selle principles, cautioning itself that it had not seen the witnesses. It then reviewed the trial record, including the disciplinary minutes and graph evidence, and found no basis to disturb the magistrate's factual findings.

p. 6

Legal principles established

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  • For a termination of employment to pass muster there must be both substantive justification and procedural fairness
  • A first appellate court must reconsider and evaluate the evidence itself while making allowance for not having seen or heard the witnesses
  • A claim or argument not raised in the pleadings or at the disciplinary hearing and internal appeal is an afterthought

Court orders

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  1. 1.The appeal dated 21st November 2022 is dismissed in its entirely with costs to the Respondent.
  2. 2.The judgment of Hon. Z.J. Nyakundi (SPM) delivered on the 21st October 2022 in Butali MELRC No. 5 of 2020 between the parties is upheld.
  3. 3.Right of appeal in 30 days.

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 45(1),(2)(a)-(c),(4)(b),(5)(a)-(e)
  • Employment Actsection 51
  • Weights and Measures OrderOrder 2 (definition of litre)

Cases cited (8)

  • Selle And Another v Associated Motor Boat Company Ltd & Others
    [1968] EA 123
  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Justus Mutahi Ihaji v Kenya Airways Limited
    (2018) eKLR
  • British Leland UK LTD V Swift
    (1981) I.R.L.R 91
  • Alphonce Machanga Mwachanya Vs Operation 680 Limited
    (2013) eKLR
  • Nicholus Muasya Kyula V Farmchem Limited
    Industrial Cause Number 1992 of 2011; (2012)eKLR 235 (Ick)
  • Kabengi Mugo Vs Syngenta East Africa Limited
    Industrial Cause Number 1476 of 2011
  • Donald Odeke V Fidelity security Limited
    Industrial cause Number 1998 of 2011; (2011)LLR 277
On appeal from
Butali Magistrate's Court (Senior Principal Magistrate)
Butali MELRC No. 5 of 2020
Jurisdiction invoked
First appellate jurisdiction from the subordinate court (Employment and Labour Relations Court appellate jurisdiction over magistrates' employment claims)

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, "Ayungu v West Kenya Sugar Company Limited (Employment and Labour Relations Appeal 19 of 2023) [2023] KEELRC 1693 (KLR)", Case Analysis (2023). Memorandum of Appeal dated 21st November 2022 (appeal from Butali MELRC No. 5 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1693/eng@2023-07-13

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