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ELRCPartially AllowedAppeal dated 13th July 2022, from Butali MELRC No. E011 of 2020· [2023] KEELRC 2206 (KLR)

Lumanyasi v West Kenya Sugar Company Limited (Employment and Labour Relations Appeal 22 of 2023) [2023] KEELRC 2206 (KLR)

Environment and Labour Relations... Employment and Labour Relations Court
21 September 2023
5,737 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The appellant, a winch helper dismissed by the respondent for suspicion of fuel siphoning, appealed the decision of Hon. Z. J. Nyakundi (SPM) in Butali MELRC No. E011 of 2020 dismissing his unfair termination claim. He argued the trial magistrate misapplied the burden and standard of proof, ignored the absence of procedural fairness (including union representation of the respondent's choosing), and wrongly relied on a faulty fuel level sensor (FLS) without calibration certificates or expert evidence. The court, guided by Selle v Associated Motor Boat Company, identified two issues: whether the magistrate erred on substantive and procedural fairness, and entitlement to reliefs. It held that under section 47(5) of the Employment Act the employee bears the initial burden of proving unfair termination, and employment claims are civil, decided on a balance of probabilities, not beyond reasonable doubt even where the misconduct resembles a criminal offence. On procedure, the claimant's own cross-examination confirmed receipt of a show cause notice, attendance at a disciplinary hearing and union representation; the choice-of-representative complaint was unpleaded and an afterthought. On substance, the FLS-faultiness claim was also unpleaded, and applying the British Leyland v Swift reasonableness test, dismissal was that of a reasonable employer. The appeal was dismissed on all grounds save the certificate of service, which under section 51 is mandatory. The trial judgment was upheld on fairness and dues, the claims for notice, leave allowance and November 2019 salary failed, the respondent was ordered to issue a certificate of service within 14 days, and each party was to bear own costs in both the suit and the appeal. Right of appeal in 30 days.

Key legal issues

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01

Procedural fairness under section 41 of the Employment Act

Holding

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

Reasoning

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.

p. 9
02

Substantive fairness — fuel siphoning evidence and the reasonableness test

Holding

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

Reasoning

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.

p. 10
03

Standard of proof in employment misconduct allegations of a criminal nature

Holding

The applicable standard is balance of probabilities; the employer need only prove the basis of the suspicion reasonably, not beyond reasonable doubt

Reasoning

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).

p. 8
04

Certificate of service under section 51

Holding

The appeal succeeds only on this issue; issuance is mandatory

Reasoning

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.

p. 11

Legal principles established

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  • 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

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  1. 1.Upheld the judgment of the trial magistrate on issue of the termination fairness and dues
  2. 2.Declared the termination of the employment of the claimant lawful and fair
  3. 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. 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. 5.Ordered each party to bear own costs in the suit
  6. 6.Ordered each party to bear own costs in the appeal
  7. 7.Granted right of appeal in 30 days

Authorities

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Legislation

  • Employment Actsection 43
  • Employment Actsection 41
  • Employment Actsection 45(2)(b), 45(4)(b)
  • Employment Actsection 47(5)
  • Employment Actsection 51
  • Employment Actsection 12
  • Employment Actsection 44
  • Weights and Measures OrderOrder 2 (definition of litre)
  • Weights and Measures Actcalibration requirements (as argued by appellant)
  • Constitution of KenyaArticle 50

Cases cited (10)

  • Selle And Another v Associated Motor Boat Company Ltd & Others
    [1968] EA 123
  • Josephine M. Ndungu & others v Plan International Inc
    (2019) eKLR
  • Peter Wafula Juma & 2 others v Republic
  • Walter Agal Anuro v Teachers Service Commission
    2023 eKLR (also cited as (2013) eKLR)
  • Alphonse Machanga Mwachanya v Operation 680 Limited
    (2013) eKLR
  • Nicholas Muasya Kyula v Farmchem Limited
    Industrial Cause No. 1992 of 2011 (2012) eKLR 235
  • Kabengi Mugo v Syngenta East Africa Limited
    Industrial Cause No. 1476 of 2011
  • Donald Odeke v Fidelity Security Limited
    Industrial Cause No. 1998 of 2011
  • Justus Mutahi Ihaji v Kenya Airways Limited
    (2018) eKLR
  • British Leland UK LTD v Swift
    (1981) I.R.L.R 91
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.