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ELRCDismissedNot stated in the judgment as provided· [2023] KEELRC 2323 (KLR)

Odhiambo v East African Breweries Limited (Cause 1482 of 2018) [2023] KEELRC 2323 (KLR)

Employment and Labour Relations Court
28 September 2023
MNMathews N. Nduma
2,930 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld summary dismissal of a manager who solicited a supplier bribe, confirming employers win when reasons are valid and procedure fair.

What this practically means

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Executive summary

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The claimant, employed from 2005 and rising to Facilities Manager on a monthly salary of Kshs 614,000, was suspended in August 2018 over allegations of procurement fraud, extortion and bribery made to a supplier, Termipest, through its director Charles Manyara. He denied the allegations in writing, attended a disciplinary hearing on September 3, 2018, and was summarily dismissed on September 20, 2018 for soliciting a bribe in breach of the respondent's Code of Business Conduct. He sued for one month's notice pay, 45 leave days' pay, 12 months' compensation for unfair dismissal, costs and interest, alleging he was denied statements from his accusers, feedback, and was discriminatorily singled out. The respondent's witnesses, including the investigating Contract Compliance and Ethics Manager, testified that investigations established a bribe demand rising from Kshs 200,000 to Kshs 400,000, supported by a recorded telephone conversation ('Toa hio kitu, kuja nayo') and the supplier's statement, though the whistle blower's and supplier's identities and statements were not disclosed at the hearing. Applying the Court of Appeal decision in Kenya Revenue Authority vs Reuwel Waithaka Gitahi and the High Court decision in Amos Kitavi Kivite vs KRA, the court held that the employer genuinely believed on reasonable and sufficient grounds that the claimant committed gross misconduct, that the Notice to Show Cause contained sufficient information, and that the procedure satisfied Sections 36, 41, 43, 44 and 45 of the Employment Act. The claimant failed to discharge his burden under Section 47(5). The suit was dismissed in its entirety, with each party bearing its own costs in light of the claimant's 14 years of service.

Key legal issues

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01

Validity of reason for summary dismissal (Section 43)

Holding

The respondent proved on a balance of probabilities that the claimant solicited a bribe from a supplier, justifying summary dismissal.

Reasoning

RW1's investigation, the recorded telephone conversation ('Toa hio kitu, kuja nayo') and the supplier's statement corroborated the allegation of a bribe demand to fast-track approval of a purchase order. Applying the KRA vs Waithaka Gitahi test, the employer need only show a genuine belief on reasonable grounds, which was established notwithstanding the claimant's denial of the meaning of the recorded words.

p. 5
02

Procedural fairness (Sections 36, 41, 44, 45)

Holding

The procedure followed was fair even though the investigation report, whistle blower and supplier statements were not disclosed or the supplier called.

Reasoning

The claimant was suspended, given a Notice to Show Cause with detailed allegations, responded in writing, attended a disciplinary hearing where he could be accompanied and call witnesses, and signed the minutes. The court found the information in the Notice to Show Cause sufficient to enable him to explain himself, following Amos Kitavi Kivite vs KRA, a case with similar features.

p. 5
03

Burden of proof under Section 47(5)

Holding

The claimant failed to discharge his statutory burden to prove the dismissal was unfair.

Reasoning

The claimant did not deny uttering the recorded words, only their attributed meaning. The evidence of RW1 and RW2 rebutted his allegations of wrongful dismissal, and he failed to prove he was owed further terminal benefits, the respondent having paid all dues subject to deductions.

p. 5

Legal principles established

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  • An employer need only demonstrate that it genuinely believed on reasonable grounds that the employee committed gross misconduct; the court does not substitute its own view for that of the employer
  • No payment in lieu of notice is payable where an employee is justifiably summarily dismissed
  • An employee bears the burden under Section 47(5) of the Employment Act to prove that a dismissal was wrongful and unfair

Court orders

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  1. 1.The suit is dismissed in its entirety
  2. 2.Each party to meet their own costs of the suit
Jurisdiction invoked
First-instance jurisdiction under the Employment Act, 2007 (ELRC employment dispute)

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, "Odhiambo v East African Breweries Limited (Cause 1482 of 2018) [2023] KEELRC 2323 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2323/eng@2023-09-28

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