Ayungu v West Kenya Sugar Company Limited (Employment and Labour Relations Appeal 19 of 2023) [2023] KEELRC 1693 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the termination was substantively fair despite the appellant's claim that the Fuel Level Sensor (FLS) was faulty
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
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.
Whether the dismissal complied with section 41 of the Employment Act (procedural fairness)
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
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.
Applicable standard of review on appeal from a trial court
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
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.
Legal principles established
#- 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
#- 1.The appeal dated 21st November 2022 is dismissed in its entirely with costs to the Respondent.
- 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.Right of appeal in 30 days.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.