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ELRCDismissedEmployment Cause, Memorandum of Claim dated February 1, 2023· [2023] KEELRC 2192 (KLR)

Mburu v Butali Sugar Mills Limited (Employment and Labour Relations Claim 20 of 2023) [2023] KEELRC 2192 (KLR)

Employment and Labour Relations Court
21 September 2023
4,191 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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The Employment Court in Kakamega upheld a fleet manager's dismissal over a lost tractor, finding the employer proved valid reasons and followed fair procedure.

What this practically means

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Executive summary

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The claimant, formerly employed by the respondent as Fleet and Logistics Manager from January 23, 2021, sued after his summary dismissal on August 22, 2022, seeking a declaration that the dismissal was unfair termination, compensation of twelve months' salary at Kshs 253,172 per month, a certificate of service, costs and interest. The dismissal followed the loss of two tractors, KTCB 458H and KTCB 606G, with the termination letter citing negligence in failing to account for KTCB 606G since April 2021 despite preparing the master fleet register and receiving its 2022 insurance certificate, amounting to gross misconduct under section 44(4)(c) and (g) of the Employment Act. The court framed two issues: whether the termination was lawful and fair, and whether the claimant was entitled to the reliefs sought. On substantive fairness, the court held that under section 43 the employer bore the burden of proving the reasons, and found on a balance of probabilities that a valid reason existed: the claimant's key supporting evidence, a show-cause response by Felix Otieno asserting the tractor was physically present, was disowned by Otieno at his own disciplinary hearing, who attributed the master fleet sheet to the claimant. On procedural fairness, the show cause, response, hearing with representation and communicated decision satisfied section 41(2); the claimant's alleged appeal email was a forward to an advocate, not a formal appeal, with no proof of receipt. Guided by the Court of Appeal in Kenya Power & Lighting Co Ltd v Aggrey Lukorito Wasike, the court dismissed the entire claim with costs to the respondent, noting the claimant had been paid terminal dues and issued a certificate of service. Right of appeal in 30 days.

Key legal issues

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01

Whether the respondent had valid and fair reasons (substantive fairness) to terminate the claimant's employment

Holding

Yes - on a balance of probabilities the respondent proved negligence by the claimant, as Fleet and Logistics Manager, in failing to account for tractor KTCB 606G since April 2021 despite preparing the master fleet register and receiving its 2022 insurance certificate

Reasoning

The termination letter cited negligence amounting to gross misconduct under section 44(4)(c) and (g) of the Employment Act. The claimant relied on Felix Otieno's show-cause response asserting the tractor was physically present, but Felix disowned that report at his own disciplinary hearing and attributed the master fleet sheet to the claimant. The court therefore found on a balance of probabilities that the respondent genuinely believed and proved a valid reason, satisfying sections 43 and 45 and the reasonable-employer test.

p. 6
02

Whether the termination procedure was fair under section 41 of the Employment Act

Holding

Yes - the claimant was issued a show cause letter, responded, attended a disciplinary hearing with a representative, and the decision was communicated; the alleged appeal email was not a formal appeal and there was no evidence the respondent received it

Reasoning

The claimant did not challenge the disciplinary process save for the alleged unanswered appeal. The court found the email titled 'Hidden Truth on Tractor Loss' was a forward to an advocate, not a formal appeal to the managing director, and there was no proof of receipt. Following Paul Waigiri Muriuki v Nairobi Water and Sewerage Company Ltd, the show cause, response, hearing and representation satisfied section 41(2).

p. 7
03

Whether the claimant was entitled to the reliefs sought

Holding

No - having found the termination lawful and fair, and the claimant having been paid terminal dues and issued a certificate of service, all reliefs were disallowed

Reasoning

The certificate of service had admittedly been issued, final dues and the salary for August 2022 were paid, and the claimant was on pension. Guided by the Court of Appeal in Kenya Power & Lighting Company Limited v Aggrey Lukorito Wasike, the court held that where an employer acts with due process and fair treatment, orders of compensation cannot issue.

p. 8

Legal principles established

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  • The employer bears the burden of proving the reasons for termination, and the reasons are the matters the employer genuinely believed to exist at the time of termination (section 43, Employment Act)
  • Procedural fairness under section 41(2) of the Employment Act is mandatory even where an employer contemplates summary dismissal for gross misconduct under section 44
  • The reasonableness of a dismissal is tested against the band of reasonable responses of a reasonable employer

Court orders

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  1. 1.The entire claim dated February 1, 2023 is dismissed with costs to the respondent
  2. 2.Right of appeal in 30 days

Authorities

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Legislation

  • Employment Actsection 45
  • Employment Actsection 43
  • Employment Actsection 41(1) and 41(2)
  • Employment Actsection 44(4)(c) and (g); section 44(3)
  • Employment Actsection 42(1)
  • Employment Actsection 47(5)

Cases cited (4)

  • British Reyland UK Limited v Swift
    (1981) IRLR 91
  • Paul Waigiri Muriuki v Nairobi Water and Sewerage Company Ltd
    [2015] eKLR
  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
  • Kenya Power & Lighting Company Limited v Aggrey Lukorito Wasike
    [2017] eKLR
Jurisdiction invoked
Original jurisdiction under the Employment Act (unfair termination claim under sections 41, 43, 44 and 45)

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, "Mburu v Butali Sugar Mills Limited (Employment and Labour Relations Claim 20 of 2023) [2023] KEELRC 2192 (KLR)", Case Analysis (2023). Employment Cause, Memorandum of Claim dated February 1, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2192/eng@2023-09-21

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