Gicheru v Chuna Sacco Society Ltd (Cause E017 of 2022) [2023] KEELRC 2101 (KLR)
The bottom line
#A Kenyan court ruled the dismissal substantively justified but unfair because the employer never shared the audit report behind the charges.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent had a valid and fair reason to terminate the Claimant's employment
Yes - the Respondent proved on a balance of probabilities that it had reasonable grounds to believe the Claimant committed gross misconduct
The Claimant faced 14 specific financial misconduct counts. Though the internal control systems were weak and he worked under supervision, he used personal accounts for official disbursements, did not call colleagues to corroborate his account, and his responses to the charges were general. Applying the range of reasonable responses test, the employer genuinely believed the grounds existed, satisfying substantive justification.
Whether the termination was procedurally fair
No - the Claimant was denied a fair hearing because the audit report and supporting documents relied upon were not availed to him
Although the Claimant received a notice to show cause, responded, attended a hearing and appealed, the Respondent relied on an auditor's report it never filed or disclosed. The notice issued before the final report was ready, so the duty to disclose lay on the Respondent. This breached Article 50 of the Constitution, Section 4 of the Fair Administrative Action Act and Section 41 of the Employment Act.
Entitlement to reliefs
Leave pay and post-termination salary refused; one month's notice pay, two months' compensation and a certificate of service awarded
No evidence supported the leave claim or salary beyond termination. Notice pay was due as the Claimant was not accorded notice. Compensation under Section 49(1)(c) was assessed at two months given over 23 years' service, clean record, but substantial contribution to the termination. A certificate of service is mandatory under Section 51.
Legal principles established
#- For a termination to be fair it must be both substantively justified and procedurally fair
- Standard of proof for reasons for termination is on a balance of probability based on the employer's genuine belief
- An employer must avail to the employee the report and documents forming the basis of disciplinary charges for the hearing to be fair
- Section 41 of the Employment Act is mandatory; a termination conducted otherwise is unlawful and unfair
Court orders
#- 1.Pay in lieu of notice Kshs.97,523.00
- 2.Equivalent of 2 months salary Kshs.195,046.00 (total Kshs.292,569.00)
- 3.Certificate of service
- Jurisdiction invoked
- Original employment and labour relations jurisdiction (Employment Act, 2007; Employment and Labour Relations Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gicheru v Chuna Sacco Society Ltd (Cause E017 of 2022) [2023] KEELRC 2101 (KLR)", Case Analysis (2023). Cause No E017 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2101/eng@2023-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.