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ELRCPartially AllowedCause No E043 of 2022· [2023] KEELRC 2885 (KLR)

Kaloki v Fracht Kenya Limited (Cause E043 of 2022) [2023] KEELRC 2885 (KLR)

Employment and Labour Relations Court
10 November 2023
6,146 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a dismissed CEO USD 63,950 because her employer fired her without a hearing, even though it had valid reasons.

What this practically means

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Executive summary

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The Claimant, formerly Managing Director of the Respondent, sued for wrongful termination of her employment on 26th September 2021, seeking 12 months' salary as damages, three months' pay in lieu of notice, part September salary, and leave pay. The Respondent denied the claim, asserting negligence and breach of trust, and counterclaimed under a Business Purchase Agreement dated 6th April 2019 for handover of assets, compensation for two motor vehicles, and reimbursement of Kshs 43,528,898.96 allegedly misappropriated. The court found the Respondent had a valid and fair reason for termination - the Claimant's admitted negligent handling of the Acciona account causing substantial losses. However, the Respondent failed to afford her a hearing as required by Section 41 of the Employment Act, rendering the termination procedurally unfair. On the counterclaim, the court held it lacked jurisdiction over the Business Purchase Agreement, a separate commercial contract with a non-party company, and found the fraud allegations unproved since the Special Audit Report lacked primary source evidence. The Claimant was awarded three months' salary in lieu of notice (USD 33,000), one month's salary as compensatory damages (USD 11,000), 18 months' unpaid leave pay (USD 11,550), and September 2021 salary (USD 8,400), totalling USD 63,950 with interest and costs. The counterclaim was dismissed with no orders as to costs.

Key legal issues

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01

Whether the Respondent had a valid and fair reason to terminate the Claimant

Holding

Yes - the Claimant's negligent handling of the Acciona account, which she admitted and offered to shoulder, gave the Respondent a valid and fair reason

Reasoning

The termination letter cited failure to provide reports, going on leave without ensuring handover, and negligent handling of the Acciona account causing losses of USD 30,000-50,000. The Claimant's email of 10th November 2019 admitted her mistake over the Blue Jay storage contract and offered to shoulder the costs. Her improper performance fell within Section 44(4)(c) of the Employment Act as gross misconduct justifying dismissal.

p. 9
02

Whether the termination was procedurally fair

Holding

No - no hearing or disciplinary process under Section 41 was undertaken, rendering the termination procedurally unfair despite substantive justification

Reasoning

Section 41 requires notification of allegations and an opportunity to be heard. RW1 admitted the Claimant was not taken through a disciplinary process. Following Kenfreight (E.A.) Limited v Benson K. Nguti, the employer was duty-bound to explain the reasons and hear her representations before terminating. Non-compliance with Section 41 was a fatal procedural flaw.

p. 9
03

Whether the ELRC has jurisdiction over the counterclaim based on the Business Purchase Agreement

Holding

No - the Business Purchase Agreement is a separate commercial agreement between the Respondent and Edinguele Services Limited, outside Section 12 of the ELRC Act

Reasoning

The Agreement was executed by the Respondent as buyer and Edinguele Services Limited as seller, with the Claimant signing only as principal shareholder. It was separate from the Employment Contract. The claims relating to motor vehicles KBV 414C and KBW 148E arise from that commercial agreement and cannot be sustained in this Court, especially as Edinguele Services Limited is not a party to the suit.

p. 11
04

Whether the Respondent proved the alleged misappropriation of Kshs 43,528,898.96

Holding

No - the Special Audit Report lacked primary source documents and the fraud allegations were not proved to the required higher standard

Reasoning

Fraud must be distinctly alleged and proved. The Respondent exhibited a Special Audit Report but did not produce the underlying bank statements, cheques or payment vouchers showing actual movement of funds. A report alone, without backup evidence, cannot satisfy the heightened standard of proof applicable to fraud allegations.

p. 12

Legal principles established

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  • An employer must prove both a valid reason for termination and procedural fairness under Sections 43 and 45 of the Employment Act; termination without either is unfair
  • Even where a valid reason exists, an employer must afford the employee a hearing under Section 41 before termination
  • Negligent or improper performance of work causing the employer loss amounts to gross misconduct justifying summary dismissal under Section 44(4)(c)
  • Allegations of fraud must be distinctly pleaded and proved to a standard higher than the ordinary balance of probabilities
  • The ELRC lacks jurisdiction over disputes arising from a commercial agreement executed separately from the employment contract

Court orders

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  1. 1.Judgment entered in favour of the Claimant against the Respondent
  2. 2.Three months' salary in lieu of notice awarded at USD 33,000
  3. 3.Compensatory damages of USD 11,000 equivalent to one month's gross salary
  4. 4.Unpaid leave covering 18 months awarded at USD 11,550
  5. 5.Salary for the month of September 2021 awarded at USD 8,400
  6. 6.Total award of USD 63,950 with interest at court rates from the date of Judgment until payment in full
  7. 7.Claimant awarded costs of the suit
  8. 8.Counterclaim dismissed with no orders as to costs

Authorities

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Legislation

  • Employment ActSection 43(1)
  • Employment ActSection 45(2)(a),(b),(c)
  • Employment ActSection 44(4)(c)
  • Employment ActSection 41
  • Employment ActSection 74(1)(f)
  • Employment ActSection 28(4)
  • Employment and Labour Relations Court ActSection 12
  • Constitution of KenyaArticle 162(2)(a)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (10)

  • National Bank of Kenya vs Samuel Nguru Matonya
    (2019) eKLR
  • Liberata Njau Njoka vs Magadi Soda Company Limited
    (2011) eKLR
  • Ol Pejeta Ranching Limited vs David Wanjau Muhoro
    (2017) eKLR
  • Vivo Energy Kenya Limited vs Maloba Petrol Station Limited & 3 Others
    (2015) eKLR
  • Mwamati vs Karangi Coftea Limited
    (2022) KEELRC 13195 (KLR)
  • Naqvi Syed Omar vs Paramount Bank Limited & another
    (2015) eKLR
  • Kenfreight (E.A.) Limited vs Benson K. Nguti
    [2016] eKLR
  • Kinyanjui Kamau vs George Kamau Njoroge
    [2015] eKLR
  • Ndolo vs Ndolo
    (2008) 1 KLR (G&F) 742
  • Vijay Morjaria vs Nansingh Madhusingh Darbar & another
    [2000] eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution; Section 12 of the Employment and Labour Relations Court Act

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, "Kaloki v Fracht Kenya Limited (Cause E043 of 2022) [2023] KEELRC 2885 (KLR)", Case Analysis (2023). Cause No E043 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2885/eng@2023-11-10

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