Rotich v Agricultural Finance Corporation (Cause 53 of 2020) [2024] KEELRC 1675 (KLR)
The bottom line
#A Kenyan court dismissed a sacked accountant's case entirely, awarding nothing despite finding his dismissal procedurally flawed, because his employer had proved genuine misconduct.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent had a valid and fair reason for termination
Yes - the special audit report gave sufficient evidence of gross misconduct by the Claimant
The Respondent produced a special audit report dated 17th April 2018 recommending that the Claimant, as Branch Accountant, be held responsible for irregular postings, a fictitious loan of Kshs 6,000,000, loss of funds and unreconciled amounts. The Claimant was also criminally charged over the loss and placed on his defence. Under sections 43 and 45(2) of the Employment Act, the employer discharged its burden of proving a valid reason genuinely believed to exist.
Whether due process was followed in terminating the employment
Partly no - the attendance of the Auditor at the disciplinary hearing, contrary to the Respondent's own HR policy, tainted the procedure
The Claimant attended three disciplinary hearings with a union representative and was given an opportunity to defend himself, satisfying section 41 of the Employment Act. However, RW1 conceded that the auditor Betty Suge, who prepared the audit report, sat on the disciplinary panel contrary to clause 12(2)(c) of the Staff Policy and Regulation Manual. This constituted a lapse which tainted the otherwise fair procedure, warranting only a declaration of procedural unfairness.
Whether the Claimant is entitled to the remedies sought
No - only a bare declaration of procedural unfairness; reinstatement, compensation, aggravated damages and costs were all declined
Having found valid reason existed and only the procedure was flawed, the court declined reinstatement as time-barred under section 12(3)(vii) of the ELRC Act. Aggravated damages failed for want of proof of malice per Rookes v Bernard. The unpaid appeal was explained by the Claimant's arrest on criminal charges. Costs were refused because the procedural lapse did not materially affect the outcome.
Legal principles established
#- An employer must prove both valid reason and fair procedure before terminating employment, with the burden of proving validity of the reason resting on the employer
- A procedural lapse that does not materially affect the outcome of a disciplinary process does not, of itself, entitle an employee to costs where valid reason for termination existed
Court orders
#- 1.Declaration that the Claimant's termination was unfair in terms of procedure
- 2.Dismissal of the suit with no order as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court Act, section 12
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rotich v Agricultural Finance Corporation (Cause 53 of 2020) [2024] KEELRC 1675 (KLR)", Case Analysis (2024). Statement of Claim dated 13th October 2020, filed 18th December 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1675/eng@2024-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.