Oucho v Trees for the Future INC (Cause E007 of 2023) [2024] KEELRC 1354 (KLR)
The bottom line
#A Kenyan court dismissed an employee's unfair dismissal claim and ordered him to repay his former employer over Kshs.544,000 in unaccounted funds.
What this practically means
#Executive summary
#Key legal issues
#Constructive dismissal
Not proved; the Claimant never resigned but was summarily dismissed
Constructive dismissal presupposes resignation in response to the employer's fundamental breach of contract. The Claimant's pleadings, testimony and the Respondent's evidence all pointed to summary dismissal on 6th December 2022, not resignation. The administrative leave was on full pay and not a disciplinary process, so no hostile conditions forcing resignation were established.
Procedural fairness under Section 41
Dismissal was procedurally fair
The Claimant received a show cause letter outlining the charges, responded to it, and the hearing was rescheduled at his own instance. He attended the virtual hearing, participated by phone when his network failed, and never objected to that mode. The invitation letter informed him of rights to accompaniment, to question the committee, to tender evidence and to an interpreter.
Substantive fairness under Sections 43, 45 and 47(5)
Dismissal was substantively fair and justified
The Claimant admitted receiving Kshs.948,000 during administrative leave when he was barred from transacting for the Respondent. He failed to refund it and his receipts and vouchers did not account for the full sum and were found by an unrebutted forensic examiner's evidence to have been written by one person, i.e. forgeries. That justified dismissal.
Counterclaim for unrefunded funds
Allowed; Claimant to pay Kshs.544,212
Having deducted Kshs.403,787.99 from terminal dues under Section 19 of the Employment Act, the balance of the irregularly transferred Kshs.948,000 remained recoverable. The court relied on Liech v Sameer Agricultural & Livestock where a counterclaim for funds lost through an employee's negligence was allowed.
Legal principles established
#- Constructive dismissal requires the employee to resign; it cannot be founded where the employee was summarily dismissed by the employer
- An employee who receives funds from the employer, refuses to refund them on demand and cannot prove they were utilised for the employer's operations affords a fair and justified reason for dismissal
- An employer may recover misappropriated or unrefunded funds from an employee's terminal dues under Section 19 of the Employment Act
Court orders
#- 1.A declaration that the Claimant's dismissal is not unfair.
- 2.An order that the Claimant pays the Respondent the amount of the counter-claim at Kshs.544,212/=
- 3.The Claimant shall bear the costs of the suit.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43, 45, 47(5), 49 and 19 applied)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oucho v Trees for the Future INC (Cause E007 of 2023) [2024] KEELRC 1354 (KLR)", Case Analysis (2024). Cause No. E007 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1354/eng@2024-06-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.