Gichobi v Jiangxi Transportion Engineering Group Ltd & 2 others (Cause E041 of 2021) [2023] KEELRC 3481 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the claimant was employed by all three respondents
Only the 1st and 2nd respondents employed him; no contract with the 3rd respondent was proved
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.
Whether the termination by the 1st respondent was unfair
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
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.
Whether the Lodwar separation by the 2nd respondent was unfair
Not unfair - the contract ended on completion of the project, which the claimant admitted
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.
What reliefs flow from the unfair termination
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
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.
Legal principles established
#- 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
#- 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.The claim against the 2nd and 3rd respondents is dismissed for lack of merits
- 3.No order as to costs - no party condemned to pay costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (specific empowering provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.