Mwai v Bollore Transport & Logistics (K) Ltd (Cause E933 of 2022) [2024] KEELRC 1219 (KLR)
The bottom line
#A Kenyan court ruled Bollore unfairly sacked its Financial Controller, awarding him Kshs 4.78 million because the company never investigated the alleged wrongdoing.
What this practically means
#Executive summary
#Key legal issues
#Substantive justification for termination
The Respondent failed to prove valid reasons for the dismissal; the Claimant was dismissed with no valid reason
The Respondent did not conduct any investigations into the alleged fraudulent invoices before terminating the Claimant, putting its reasons under a cloud of doubt. The Claimant was not in the financial department generating invoices and only interacted with documents after several stages of processing. Without proof of justification or a nexus between the alleged misdeed and the Claimant, the dismissal lacked valid grounds.
Procedural fairness of the disciplinary process
The Court found the Respondent's reasons for termination doubtful given absence of investigations, and indicated the Claimant could only have been warned if there was basis for disciplinary action
The Respondent failed to conduct investigations into the alleged fraudulent invoices and instead made the Claimant a 'fall guy'. The Claimant was not responsible for generating the invoices and the disciplinary process did not establish the alleged negligence. The Respondent's failure to unearth the problems in its invoice processing undermined the disciplinary outcome.
Reinstatement
Reinstatement refused despite 3 years not having lapsed
Although the statutory window for reinstatement had not lapsed, the Claimant served in a sensitive docket requiring high trust, and the adversarial stance between the parties would militate against their working together. Compensation was therefore the appropriate remedy.
Claim for unpaid leave days
The claim for 120 unpaid leave days was unproved and disallowed
The Claimant failed to attach any proof of leave days earned and not taken and did not demonstrate that he ever sought leave and was denied. The Respondent had asserted only 17.91 earned leave days remained. The burden of proof was not discharged.
Remedy of compensation
Compensation of 10 months' salary awarded instead of the maximum 12 months or payment to retirement
Having found the termination unfair, the Court exercised its discretion under section 49 of the Employment Act to award 10 months' salary, declining reinstatement and the alternative claim of salary to retirement, which is reserved for exceptional cases. The Claimant was expected to mitigate his losses.
Legal principles established
#- An employer may have a reason for termination but must prove justification; absence of a nexus between the alleged misdeed and the employee does not give an employer the right to terminate
- Payment of salary and allowances to the end of the contract is reserved for exceptional cases
Court orders
#- 1.A declaration finding that the termination of the Claimant's employment with the Respondent was unlawful and unfair
- 2.Compensation equivalent to 10 months - Kshs. 477,601.36 x 10 = Kshs. 4,776,013.60
- 3.Interest at court rates on the compensation from the date of judgment till payment in full
- 4.Costs of the suit to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Constitution (Articles 41(1) and 47 invoked by the Claimant)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwai v Bollore Transport & Logistics (K) Ltd (Cause E933 of 2022) [2024] KEELRC 1219 (KLR)", Case Analysis (2024). Cause No E933 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1219/eng@2024-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.