Lumanyasi v West Kenya Sugar Company Limited (Employment and Labour Relations Appeal 22 of 2023) [2023] KEELRC 2206 (KLR)
The bottom line
#A Kenyan court upheld dismissal over suspected fuel siphoning but ordered the employer to issue the worker a mandatory certificate of service under the Employment Act.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness under section 41 of the Employment Act
Procedural fairness was accorded: the claimant was informed of the charges, responded to a show cause notice, attended a disciplinary hearing and was represented by union representatives
The claimant's own cross-examination admitted service of the show cause notice, response, invitation to the hearing, and that he was told to avail a union person or fellow worker. The union representatives were present as the minutes recorded, and no protest on representation was made at the internal appeal. The complaint about choice of representatives was not pleaded before the lower court and was an afterthought.
Substantive fairness — fuel siphoning evidence and the reasonableness test
The respondent proved the reason for termination on the balance of probabilities; the FLS graph showing a sharp fuel drop substantiated the suspicion of fuel siphoning and dismissal met the reasonable employer test
The claimant never pleaded or raised at the disciplinary hearing, internal appeal or pleadings that the fuel level sensor was faulty; that claim was an afterthought. Applying the British Leyland v Swift reasonableness test, the court found a reasonable employer could dismiss on the FLS evidence and upheld the trial magistrate's finding.
Standard of proof in employment misconduct allegations of a criminal nature
The applicable standard is balance of probabilities; the employer need only prove the basis of the suspicion reasonably, not beyond reasonable doubt
The appellant argued fuel siphoning is a criminal offence requiring proof beyond reasonable doubt. The court rejected this, holding employment claims are civil in nature, and the employer ought to produce evidence to prove the basis of the suspicion, applying the reasonableness test in section 45(4)(b).
Certificate of service under section 51
The appeal succeeds only on this issue; issuance is mandatory
Though the fairness findings were upheld, the court found no evidence a certificate of service had been issued and held the trial court's permissive language ('may be issued') was wrong since section 51 imposes a mandatory statutory right on the employee.
Legal principles established
#- In unfair termination complaints the employee bears the burden of proving unfair termination under section 47(5); once discharged the burden shifts to the employer to justify the reasons under sections 43 and 45
- Employment misconduct claims are civil; the standard is balance of probabilities, not beyond reasonable doubt even where the misconduct resembles a criminal offence
- Issuance of a certificate of service under section 51 of the Employment Act is mandatory, not discretionary
Court orders
#- 1.Upheld the judgment of the trial magistrate on issue of the termination fairness and dues
- 2.Declared the termination of the employment of the claimant lawful and fair
- 3.Dismissed the claims for one month in lieu of notice, leave allowance for the year 2019 and salary for one month (November 2019)
- 4.Ordered the Respondent to issue the claimant with a certificate of service pursuant to section 51 of the Employment Act within 14 days of the order
- 5.Ordered each party to bear own costs in the suit
- 6.Ordered each party to bear own costs in the appeal
- 7.Granted right of appeal in 30 days
- On appeal from
- Butali Senior Principal Magistrate's Court (MELRC)
- Butali MELRC No. E011 of 2020
- Jurisdiction invoked
- First appeal from Magistrates' Court (Employment and Labour Relations Court) — appeal as of right on facts and law
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Lex Oilfield Solutions Limited v Nganga (Appeal E018 of 2025) [2025] KEELRC 3736 (KLR)[2025] KEELRC 3736 (KLR)17 Dec 2025
- Omundi v Judicial Service Commission & another (Cause E046 of 2023) [2025] KEELRC 1886 (KLR)[2025] KEELRC 1886 (KLR)27 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Lumanyasi v West Kenya Sugar Company Limited (Employment and Labour Relations Appeal 22 of 2023) [2023] KEELRC 2206 (KLR)", Case Analysis (2023). Appeal dated 13th July 2022, from Butali MELRC No. E011 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2206/eng@2023-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.