Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedCause No. E007 of 2023· [2024] KEELRC 1354 (KLR)

Oucho v Trees for the Future INC (Cause E007 of 2023) [2024] KEELRC 1354 (KLR)

Employment and Labour Relations Court
6 June 2024
5,022 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

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

#
The Claimant, employed by the Respondent non-profit from 2018, was sent on administrative leave on 4th October 2022. On 11th October 2022, Kshs.948,000 was transferred from the Respondent's account to his. He declined to refund it, asserting he had spent it on the Respondent's operations and producing receipts and vouchers. A show cause letter issued on 14th November 2022, and after a disciplinary hearing conducted partly by telephone, he was dismissed on 6th December 2022 for gross misconduct and insubordination. He sued seeking declarations of constructive and unfair dismissal, Kshs.5,850,000 in terminal dues, 14 days' leave pay, a certificate of service, costs and interest; the Respondent counterclaimed for Kshs.544,212, the balance of the unrefunded funds after offsetting Kshs.403,787.99 from his terminal dues. The court held that constructive dismissal was not proved since the Claimant never resigned but was summarily dismissed. On procedure, the show cause letter, his response, a hearing rescheduled at his instance and his participation by telephone satisfied Section 41 of the Employment Act. Substantively, his refusal to refund money received while barred from transacting, and unrebutted forensic evidence that his receipts were forgeries, provided a valid and fair reason for dismissal. His leave pay and November/December 2022 salary claims were allowed but had already been set off, and compensation, notice pay and contract-term claims failed. The counterclaim was allowed. The suit was dismissed with costs to the Claimant's burden, and he was ordered to pay the Respondent Kshs.544,212.

Key legal issues

#
01

Constructive dismissal

Holding

Not proved; the Claimant never resigned but was summarily dismissed

Reasoning

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.

p. 7
02

Procedural fairness under Section 41

Holding

Dismissal was procedurally fair

Reasoning

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.

p. 9
03

Substantive fairness under Sections 43, 45 and 47(5)

Holding

Dismissal was substantively fair and justified

Reasoning

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.

p. 9
04

Counterclaim for unrefunded funds

Holding

Allowed; Claimant to pay Kshs.544,212

Reasoning

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.

p. 10

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. 1.A declaration that the Claimant's dismissal is not unfair.
  2. 2.An order that the Claimant pays the Respondent the amount of the counter-claim at Kshs.544,212/=
  3. 3.The Claimant shall bear the costs of the suit.

Authorities

#

Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 49
  • Employment Act, 2007Section 19(1)(b) and (d)
  • Employment Act, 2007Section 42(1)

Cases cited (15)

  • Peter Otabong Ekisa v County Government of Busia
    [2017] eKLR
  • Milton M Isanya v Aga Khan Hospital Kisumu
    (2017) eKLR
  • Coca Cola East and Central Africa v Maria Kagai Ligaga
    (2015) eKLR
  • Kenya Revenue Authority v Reuwel Waithaka & 2 Others
    [2019] eKLR
  • Kudhehia Workers v Masinde Muliro University of Science and Technology
    [2018] eKLR
  • Liech v Sameer Agricultural & Livestock (K) Ltd (now) Devyan Food Industries (K) Limited
    null
  • Alphonce Maghanga Mwachanya v Operation 680 limited
    [2013] eKLR
  • Jacob Otieno Oyugi v Trees for the future Inc
    (2023) eKLR
  • CMC Aviation Ltd. vs. Cruisair Ltd. (No. 1)
    [1978] KLR 103; [1976-80] 1 KLR 835
  • Western Excavating ECC Ltd v Sharp
    (1978) 2 WLR 344
  • Hosea Akunga Ombwori v Bidco Oil Refineries Limited
    (2017) eKLR
  • Silvester Malei Kyengo v Kenya Meat Commission
    (2019) eKLR
  • Titus Muriuki Ndirangu v Beverly School of Kenya Limited
    [2022] eKLR E009 of 2021
  • John Jaoko Othino v Intrahealth International
    [2022] eKLR
  • British Leyland UK Ltd vs Swift
    (1981)
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.