Dungani v West Kenya Sugar Company Limited (Employment and Labour Relations Appeal 12 of 2023) [2024] KEELRC 172 (KLR)

Section 47(5) of the Employment Act allocates the burden: the employee must prove unfair termination occurred, while the employer justifies the grounds under sections 43 and 45. The employee discharges the initial burden by establishing a prima facie case outside the four corners of section 45. The court adopted Josephine M. Ndungu and its own earlier decision, holding employment claims are civil so the criminal standard does not apply even to fuel-siphoning allegations.

The court confined itself to the pleadings at trial, which alleged only that reasons were not explained in a language the claimant understood and that section 41 procedures were not applied. The documents produced - suspension/show cause letter, written response, hearing notice, minutes and dismissal letter - showed compliance, confirmed at cross-examination. Issues like the FLS system's faultiness and choice of union representatives were unpleaded and could not be raised on appeal.

The fuel siphoning was never denied and the FLS functionality was never challenged in the pleadings. The respondent produced FLS graphs and explained the system, satisfying the Kyula threshold of verifying misconduct through internal systems. The court applied the British Leyland band-of-reasonableness test: the appellant, a winch helper on duty when fuel was siphoned, damaged the trust, and summary dismissal was reasonable, the lack of written warning not affecting summary dismissal for suspected criminal offence against the employer's property.

Section 49 remedies depend on a finding of unfair dismissal, which failed. Leave pay was shown paid; housing allowance and underpayment failed on the consolidated salary against the wage order; overtime was paid monthly; the rest days claim lacked evidence; the certificate of service had been dealt with by the trial magistrate and was not a live appellate issue.