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ELRCDismissedChief Magistrates Employment and Labour Case No. 466 of 2019 (Appeal from judgment delivered 28th April 2022)· [2024] KEELRC 1650 (KLR)

Bollore Transport & Logistics Limited v Kidaha (Appeal E060 of 2022) [2024] KEELRC 1650 (KLR)

Employment and Labour Relations Court
24 June 2024
NMNzioki Wa Makau
2,412 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed that an employer who refuses to release CCTV footage key to a dismissal case risks losing an unfair termination claim.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Nairobi against the judgment and decree of Hon. A. N. Makau (Mrs.), Principal Magistrate, delivered on 28th April 2022 in Chief Magistrates Employment and Labour Case No. 466 of 2019, which found that the Claimant/Respondent's summary dismissal was procedurally unfair. The Appellant company raised grounds including that the trial magistrate ignored the notice to show cause, minutes of the disciplinary hearing, the notification of the right to be accompanied, and the payment of one month's pay in lieu of notice. The appeal was disposed of by written submissions. The Appellant argued that it complied with section 41 of the Employment Act and cited authorities on summary dismissal and proof of leave claims. The Respondent maintained the termination lacked procedural fairness, noting the Appellant's refusal to produce the CCTV footage sought by notice to produce, which formed the basis of the alleged misconduct. Relying on Selle v Associated Motor Boat Company on the court's duty to re-evaluate evidence on a first appeal, and applying Kenya National Private Security Workers Union v G4S Kenya Limited, the court found that the Appellant's refusal to avail the CCTV footage left the validity of the reason for termination in limbo. Finding no fault in the trial court's determination, the court upheld the decision in its entirety, dismissed the appeal with costs to the Respondent, and declined to substitute the orders sought by the Appellant.

Key legal issues

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01

Whether the termination was procedurally fair under sections 41-44 of the Employment Act

Holding

The trial court's finding of procedural unfairness was upheld; the employer failed to avail the CCTV footage to substantiate the charge

Reasoning

The court, on a first appeal, reconsidered the evidence and noted the Respondent had requested production of the CCTV footage for the night of 13th December 2018, which formed the basis of the termination, but the Appellant refused to avail it. Applying G4S Kenya Limited, the reason for termination remained in limbo. The learned Magistrate's finding in favour of the Claimant was therefore sound and the decision was upheld in its entirety.

p. 4
02

Entitlement to the reliefs awarded

Holding

Having found the termination unfair and unjustified, the Respondent was entitled to the reliefs as awarded by the trial court

Reasoning

The Appellant argued the Respondent was not entitled to leave pay or a certificate of service, but the court found no fault in the trial court's determination and upheld the decision in its entirety, leaving the reliefs intact. Costs were awarded to the successful Respondent.

p. 5

Legal principles established

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  • On a first appeal the court is not bound by the lower court's findings but must reconsider and evaluate the evidence and draw its own conclusions
  • Where an employer declines to avail CCTV footage that would have proved or disproved culpability, the validity of the reason for termination remains in limbo and the termination is unfair

Court orders

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  1. 1.The decision of Hon. Principal Magistrate is upheld in its entirety
  2. 2.The appeal stands dismissed with costs to the Respondent

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 42
  • Employment Act, 2007section 43
  • Employment Act, 2007section 44(4)(e)
  • Employment Act, 2007section 44(4)(g)
  • Employment Act, 2007section 47(5)

Cases cited (6)

  • Selle & another v Associated Motor Boat Company Limited Co. Ltd & others
    [1968] EA 123
  • Thomas Sila Nzivo v Bamburi Cement Limited
    [2014] eKLR
  • Justus Miwani v Jiangxi Water & Hydro Power Construction Kenya Limited
    [2019] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • CMK v Chandarana Supermarket Limited
    (Cause 13 of 2018) [2024] KEELRC 388 (KLR)
  • Kenya National Private Security Workers Union v G4S Kenya Limited
    [2021] eKLR
On appeal from
Chief Magistrate's Court (Employment and Labour)
Employment and Labour Case No. 466 of 2019
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Employment and Labour Case (Employment and Labour Relations Court Act)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Bollore Transport & Logistics Limited v Kidaha (Appeal E060 of 2022) [2024] KEELRC 1650 (KLR)", Case Analysis (2024). Chief Magistrates Employment and Labour Case No. 466 of 2019 (Appeal from judgment delivered 28th April 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1650/eng@2024-06-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.