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ELRCPartially AllowedCause No 1494 of 2017· [2023] KEELRC 3030 (KLR)

William v Bollore Africa Logistics Limited (Cause 1494 of 2017) [2023] KEELRC 3030 (KLR)

Employment and Labour Relations Court
16 November 2023
OKOcharo Kebira
5,603 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a dismissal unfair because the employer never gave the employee the investigation report and witness statements used against him.

What this practically means

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Executive summary

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The Claimant, employed as a Messenger from 1st November 2009 on a salary of Kshs 27,749.00, was accused in March 2014 of stealing cheque leaves valued at Kshs 764,470.60. He was arrested, charged with stealing by servant in Makadara Court Criminal Case No. 1776/2014, suspended, and dismissed on 6th August 2014 following a disciplinary hearing. He was acquitted on 27th April 2017. He sued for declarations of unfair termination, terminal dues, damages for the arrest and prosecution, overtime, interest and costs. The Respondent maintained it had valid reason and followed fair procedure, and that it was entitled to run internal disciplinary processes concurrently with criminal proceedings. The court framed three issues: procedural and substantive fairness, entitlement to reliefs, and costs. It held that although the Claimant received a show cause notice and a hearing accompanied by union representatives, the Respondent relied on an investigation report and witness statements never supplied to him, rendering the termination procedurally unfair. On substance, the Respondent produced no investigation report, called no witnesses, and gave no proof the cheques existed or were stolen; the acquittal went unrebutted. The dismissal was therefore substantively unjustified. The court awarded a declaration of unfair termination, one month's salary in lieu of notice (Kshs 27,749.00), and five months' gross salary compensation under section 49(1)(c) (Kshs 138,745.00 in the final orders, though Kshs 137,745.00 in the body - a discrepancy worth noting in execution). The overtime claim of Kshs 261,534.00 failed for want of proof, and no award was made on the arrest and prosecution claim or service pay. Costs and interest were awarded to the Claimant. Judgment was delivered virtually at Nairobi on 16th November 2023 by Ocharo Kebira, Judge.

Key legal issues

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Procedural fairness of the dismissal

Holding

The termination was procedurally unfair because the Respondent relied on an internal investigation report and witness statements which were never supplied to the Claimant before the disciplinary hearing.

Reasoning

Although the Claimant received a show cause notice, responded to it, and attended a disciplinary hearing accompanied by union representatives - steps consistent with section 41 - the Respondent based its decision on an investigation report and witness statements served on the union only at the hearing. RW1 admitted the Claimant was never given the report or statements. Natural justice and the constitutional right to a fair hearing obliged the employer to supply those materials, whether or not the employee requested them.

p. 9
02

Substantive justification of the dismissal

Holding

The Respondent failed to prove a valid and fair reason for the dismissal; the theft allegation was unsupported by evidence.

Reasoning

Under sections 43 and 45 of the Employment Act the employer bears the burden of proving valid and fair reasons. The Respondent produced no investigation report, called none of the witnesses whose statements it relied on, and no evidence showed the Claimant unsealed an envelope or took the cheques. The issuers of the cheques were not called, and the Claimant's acquittal in the criminal case for lack of evidence was unrebutted.

p. 10
03

Remedies

Holding

The Claimant was awarded a declaration, one month's salary in lieu of notice, and five months' gross salary as compensation under section 49(1)(c), but no overtime.

Reasoning

The court exercised its discretion under section 49(1)(c), considering the length of service (from 2009), the prior warnings and cautionary letters on record, and the finding of both procedural and substantive unfairness, to award five months' gross salary rather than the twelve months' maximum. Notice pay was awarded under sections 35 and 36 as the employment was terminable by one month's notice. The overtime claim failed for want of proof.

p. 10

Legal principles established

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  • Procedural fairness under section 41 of the Employment Act comprises three mandatory components: notification of the grounds, an adequate opportunity to be heard with accompaniment, and consideration of the employee's representations.
  • Where an employer's ground for dismissal rests on an investigation report or documents, the employer must supply them to the employee to enable adequate preparation of a defence; it is no defence that the employee did not ask for them.
  • Substantive and procedural fairness together form the total unit of fairness in termination; absence of either renders the dismissal unfair.
  • The burden of establishing hours or days served in excess of the legal maximum, in an overtime claim, rests with the employee.

Court orders

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  1. 1.A declaration that the termination of the Claimant's employment was both procedurally and substantively unfair.
  2. 2.One month salary in lieu of notice of Kshs 27,749.00.
  3. 3.Five months' gross salary compensation pursuant to section 49(1)(c) of the Employment Act of Kshs 138,745.00 (stated in the final orders; Kshs 137,745.00 in the body of the judgment).
  4. 4.Cost of the suit and interest.

Authorities

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Legislation

  • Employment Act 2007Section 41(1) and (2)
  • Employment Act 2007Section 42(1)
  • Employment Act 2007Section 43(1)
  • Employment Act 2007Section 45(2)
  • Employment Act 2007Section 44(3) and (4)
  • Employment Act 2007Section 47(5)
  • Employment Act 2007Section 49(1)(c)
  • Employment Act 2007Sections 35 and 36
  • Constitution of Kenya 2010Article 159(2)(d)
  • Constitution of Kenya 2010Article 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (11)

  • Walter Anuro v The Teachers Service
    [2013] eKLR
  • Pamela Nelima Lutta v Mumias Sugar Company Limited
    [2017] eKLR
  • Janet Nyandiko v Kenya Commercial Bank Limited
    [2017] eKLR
  • National Bank of Kenya v Anthorny Njue John
    [2019] eKLR
  • Dominic Otieno Odeny v Kenya Kazi Services Limited
    [2021] eKLR
  • Kenya Union of Commercial Food & Allied Workers v Meru North Farmers Sacco Limited
    [2013] eKLR
  • Meshack Auta Ongeri v Nyamache Tea Factory Company Limited
    [2019] eKLR
  • George Musamali v G4S Security Services Kenya Limited
    [2016] eKLR
  • Loice Otieno v The Kenya Commercial Bank Limited
    [2011] eKLR
  • Naima Khamis v Oxford University Press E.A Limited
    (2017) eKLR
  • Rogoli Ole Manadiengi v General Cargo Services Ltd
    (2016) eKLR
Jurisdiction invoked
Original jurisdiction under the Employment Act 2007 over a claim of unfair termination (Employment and Labour Relations Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "William v Bollore Africa Logistics Limited (Cause 1494 of 2017) [2023] KEELRC 3030 (KLR)", Case Analysis (2023). Cause No 1494 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3030/eng@2023-11-16

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