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ELRCPartially AllowedCause No E041 of 2021· [2023] KEELRC 3481 (KLR)

Gichobi v Jiangxi Transportion Engineering Group Ltd & 2 others (Cause E041 of 2021) [2023] KEELRC 3481 (KLR)

Employment and Labour Relations Court
27 April 2023
2,968 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 ruled a driver's fuel-siphoning dismissal unfair because the employer couldn't prove it, awarding him Kshs.48,000 while rejecting his other claims.

What this practically means

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Executive summary

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The claimant, a Tipper driver, sued three respondents alleging continuous employment from 28th October 2018 to 21st February 2021 and unfair termination, seeking Kshs.1,627,000/- in underpayments, house allowance, notice pay, compensation, NSSF remissions and travel allowance. The respondents, pleaded to be separate legal entities, asserted that the 2nd respondent employed him at Lodwar until the project ended in November 2020, and the 1st respondent employed him at Kenol-Sagana from 17th January 2021 until summary termination on 20th/21st February 2021 for siphoning fuel. The court framed three issues: employment by all three respondents, unfair termination, and entitlement to reliefs. It found only the 1st and 2nd respondents employed the claimant, no contract with the 3rd respondent was proved, and NSSF remittances alone could not establish employment. The Lodwar separation was lawful, the claimant admitting the contract ended with the project. Regarding the 1st respondent, the court held the employer failed to prove the fuel-siphoning reason: the supervisor never testified, no evidence showed fuel issued or missing, and RW1 admitted the vehicle was not verified as refuelled. The reason was therefore not valid or fair under section 45(2), though the claimant's admission of being heard satisfied procedural fairness. The court awarded one month's notice pay and one month's salary as compensation, totalling Kshs.48,000/- against the 1st respondent only, subject to statutory deductions, dismissed the claim against the 2nd and 3rd respondents, and ordered no costs as both sides partially succeeded.

Key legal issues

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01

Whether the claimant was employed by all three respondents

Holding

Only the 1st and 2nd respondents employed him; no contract with the 3rd respondent was proved

Reasoning

The claimant produced two contracts: one with the 2nd respondent dated 17th August 2020 and one with the 1st respondent dated 17th January 2021. No contract with the 3rd respondent was produced, and the NSSF allegation was unsubstantiated and insufficient in any event to infer employment.

p. 5
02

Whether the termination by the 1st respondent was unfair

Holding

Termination was unfair because the employer failed to prove the validity of the alleged fuel-siphoning reason, though the procedure element was satisfied by the claimant's admission that he was heard

Reasoning

RW1 admitted there was no evidence the vehicle was refuelled before the claimant took it over; the supervisor Sang never testified; no records showed fuel issued or missing. The allegation rested on shaky circumstantial evidence, failing the section 45(2) burden. However, the claimant admitted being heard by Mr. Ileve, discharging the employer on procedure.

p. 6
03

Whether the Lodwar separation by the 2nd respondent was unfair

Holding

Not unfair - the contract ended on completion of the project, which the claimant admitted

Reasoning

The claimant admitted his Lodwar contract ended when the project ended, so no unfair termination arises against the 2nd respondent; no finding was possible against the 3rd respondent as no employment was proved.

p. 5
04

What reliefs flow from the unfair termination

Holding

One month salary in lieu of notice and one month's salary as compensation, considering the short service and about 4 months of unexpired contract

Reasoning

The claimant had completed probation, entitling him to 28 days' notice under section 35. Considering the short period served and the unexpired contract period, the court awarded one month notice pay and one month compensation under section 49(1), rejecting claims not grounded in the signed contracts or unsupported by evidence.

p. 6

Legal principles established

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  • An employer bears the burden under section 45(2) of the Employment Act of proving both a valid and fair reason and a fair procedure; failure to prove the reason renders termination unfair under section 43
  • Circumstantial evidence of fuel siphoning, unsupported by the supervisor's testimony or records of fuel issued, does not discharge the employer's burden on a balance of probability
  • Mere remittance of NSSF contributions does not infer an employer-employee relationship absent a contract of service

Court orders

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  1. 1.Judgment entered for the claimant against the 1st respondent in the sum of Kshs.24,000.00 being one month salary in lieu of notice and Kshs.24,000.00 compensation for unfair termination, totalling Kshs.48,000.00, subject to statutory deductions
  2. 2.The claim against the 2nd and 3rd respondents is dismissed for lack of merits
  3. 3.No order as to costs - no party condemned to pay costs

Authorities

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Legislation

  • Constitution of KenyaArticle 41
  • Employment ActSection 45
  • Employment ActSection 43
  • Employment ActSection 49(1)
  • Employment ActSection 35
  • ELRC (Procedure) RulesRule 28(3)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (specific empowering provision not stated in the judgment)

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, "Gichobi v Jiangxi Transportion Engineering Group Ltd & 2 others (Cause E041 of 2021) [2023] KEELRC 3481 (KLR)", Case Analysis (2023). Cause No E041 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3481/eng@2023-04-27

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