Ng’etich v Kenya Breweries Limited (Cause E829 of 2022) [2024] KEELRC 1177 (KLR)
The bottom line
#Kenya's Employment Court upheld the firing of an employee who sent Kshs 400 to a recruiter, ruling even small payments can justify dismissal.
What this practically means
#Executive summary
#Key legal issues
#Valid and fair reason for termination
The Respondent proved a valid and fair reason - the Claimant's improper conduct in sending money to a recruiting contractor in connection with a recruitment process breached the Code of Business Conduct
The Claimant did not deny sending Kshs 400/= to the third-party recruiter and had forwarded candidates' names for recruitment. The recruiter reversing the transaction cast doubt on the Claimant's airtime-request explanation. The money's purpose was connected to the recruitment process, amounting to a facilitation fee. Applying sections 43(1) and 45(2)(a) and (b) of the Employment Act and the balance-of-probability standard from Kenya Revenue Authority vs Reuwel Waithaka Gitahi, the Respondent genuinely believed the integrity-related misconduct occurred.
Procedural fairness
The Respondent complied with section 41 of the Employment Act; the termination was procedurally fair
The Claimant recorded a statement, responded to the Notice to Show Cause, was invited to a virtual disciplinary hearing with notice of his right to be accompanied by a colleague and to call witnesses, attended and made representations, and was informed of his right to appeal, which he exercised and which was determined by the Human Resource Director.
Entitlement to reliefs
No reliefs were due as the termination was fair and lawful; severance pay is unavailable absent redundancy
Having found both substantive and procedural fairness, the Court held that the reliefs in the Memorandum of Claim could not be sustained, and separately noted that severance pay under section 40(1)(g) applies only to redundancy, which was not the case here.
Legal principles established
#- The standard of proof in employment termination is on a balance of probability, and the employer need only prove reasons it genuinely believed to exist
- The significance of money sent in a workplace disciplinary context lies in its context, motive and what it represents, not its amount
Court orders
#- 1.Dismissal of the Claim in its entirety
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act; Article 159(2)(d) and Article 48 of the Constitution invoked in the delivery-of-judgment order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ng’etich v Kenya Breweries Limited (Cause E829 of 2022) [2024] KEELRC 1177 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1177/eng@2024-05-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.