Ayako v Kenya Pipeline Company Ltd (Cause E008 of 2023) [2024] KEELRC 1464 (KLR)
The bottom line
#Kenya's Employment Court ruled that different disciplinary outcomes for employees facing similar misconduct charges do not automatically amount to unfair discrimination.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was discriminated against in the disciplinary process
Discrimination not proven; the fact that Rispah Kiptanui was reinstated while the Claimant was dismissed did not establish discrimination
The court adopted the definition of discrimination as failure to treat persons equally where no reasonable distinction exists. RW2 testified the Claimant and Kiptanui faced different charges and the committee evaluated each response separately. The Claimant bore the burden of showing similar circumstances and culpability; he offered only the bare fact of Kiptanui's reinstatement. Following the Supreme Court's guidance on linking the aggrieved party to the alleged contravention, the claim failed.
Whether the dismissal was procedurally fair
Procedurally fair; the 48-hour show cause notice, disciplinary hearing with representation, and appeal met Section 41 requirements
The Claimant was issued a notice to show cause outlining allegations, responded despite the short notice, was heard at a disciplinary hearing accompanied by a representative of his choice, and exercised his right of appeal. Relying on Philip Kimosop and Anthony Mkala Chitavi, the court found these steps satisfied the ingredients of procedural fairness under Section 41 of the Employment Act, notwithstanding the Claimant's complaint of inadequate time.
Whether the dismissal was substantively justified
Substantively fair; the Respondent had reasonable grounds to believe the Claimant committed misconduct justifying summary dismissal
Under Section 43 the employer bears the onus of proving reasons for termination. The Respondent led evidence through the Security Officer and Senior Human Resource Officer that leaflets from stolen order book numbers were used to fraudulently fuel stationary vehicles, and that the Claimant, as Dispatch Assistant Clerk, was the creator and last processor of the fuel orders. Applying the threefold test from Kenya Ports Authority v Makau Munyao, the court found the Respondent's belief genuine, grounded and reasonably investigated.
Legal principles established
#- Not all differentiation in treatment amounts to discrimination; discrimination arises where equal classes of people are subjected to different treatment without objective or reasonable justification
- The party alleging discrimination bears the duty to demonstrate unreasonable differential treatment of persons of the same class or category
- Different disciplinary outcomes for two employees facing similar charges do not, as a matter of course, amount to discrimination; outcomes may differ based on level of contribution and defence offered
- A criminal trial and internal disciplinary proceedings by an employer are distinct processes with different procedural and standard of proof requirements (as submitted by the Respondent)
- Serving a show cause letter, inviting the employee to an oral hearing, allowing witnesses, documents and representation constitutes fair procedure under Section 41 of the Employment Act
- The threefold test for proof of reason for dismissal: genuine belief in guilt, reasonable grounds for that belief, and reasonable investigation
Court orders
#- 1.The Claimant's claim is dismissed in its entirety
- 2.Costs of the suit awarded to the Respondent
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court over employment and labour relations disputes (claim filed as a Memorandum of Claim under the Employment Act; no specific constitutional article invoked as basis of jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ayako v Kenya Pipeline Company Ltd (Cause E008 of 2023) [2024] KEELRC 1464 (KLR)", Case Analysis (2024). Cause No E008 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1464/eng@2024-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.