Gatwiri v Kenya Revenue Authority (Cause E117 of 2023) [2024] KEELRC 1959 (KLR)
The bottom line
#Kenya's Employment Court upheld a customs officer's dismissal, ruling an employer only needs genuine reasons proven on a balance of probability.
What this practically means
#Executive summary
#Key legal issues
#Validity of the reasons for summary dismissal
The dismissal was justified; the respondent acted on a genuine belief founded on ISO investigations that the claimant committed gross misconduct causing revenue loss of about Ksh.34 million.
The court applied section 43 of the Employment Act as explained in Matsesho v Newton, Simba Corporation v Omondi and Charles Musungu Odana v Kenya Ports Authority: the employer need only prove reasons it genuinely believed to exist on a balance of probability. The ISO investigation showed the claimant released the consignment without fulfilment of laboratory conditions and without a genuine appeal by the importer, and her conduct amounted to gross misconduct justifying dismissal.
Procedural fairness of the disciplinary process
Due process was followed: notice to show cause issued, response received, disciplinary hearing held and appeal filed and dismissed; the claimant's complaint about withheld minutes did not negate the process.
The respondent issued a show cause notice on 23 October 2020, received the claimant's response on 27 October 2020, convened a disciplinary hearing on 12 January 2021 and considered her appeal, which was rejected. The court held the alleged failure to supply minutes could not negate the finding that the dismissal was justified.
Alleged discrimination
No discrimination established; the claimant's employment relationship was personal and she was culpable upon investigation.
Although four officers were involved in the transaction and others remained employed, the court found that the claimant did not deny handling the consignment and was found culpable on investigation. Employment being personal, differing outcomes for other officers did not establish discriminatory treatment in the circumstances.
Reinstatement and certificate of service
Reinstatement refused as termination was justified; a certificate of service is due under section 51 of the Employment Act subject to clearance.
The court found the termination justified, removing any prospect of reinstatement. However, since a certificate of service is a statutory entitlement at the end of employment, the court directed the claimant to attend clearance with the respondent to enable processing of terminal dues and the certificate.
Legal principles established
#- An employer discharges its burden under section 43 of the Employment Act by proving reasons it genuinely believed to exist at the time of termination, on a balance of probability.
- Employment is a personal relationship; once trust is lost, termination on that account does not amount to discrimination against the employee vis-à-vis other implicated officers.
- A certificate of service is due to an employee at the end of employment under section 51 of the Employment Act regardless of the mode of exit.
Court orders
#- 1.The claim is dismissed for lack of merit
- 2.Each party is to bear its own costs
- 3.A certificate of service is due to the claimant under section 51 of the Employment Act upon her undertaking clearance with the respondent
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim; no specific constitutional provision invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gatwiri v Kenya Revenue Authority (Cause E117 of 2023) [2024] KEELRC 1959 (KLR)", Case Analysis (2024). Cause No E117 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1959/eng@2024-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.