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ELRCDismissedCause No E117 of 2023· [2024] KEELRC 1959 (KLR)

Gatwiri v Kenya Revenue Authority (Cause E117 of 2023) [2024] KEELRC 1959 (KLR)

Employment and Labour Relations Court
25 July 2024
5,451 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, formerly employed by the respondent as an integrity assurance officer on permanent and pensionable terms earning Ksh.198,000 per month, was summarily dismissed on 8 February 2021 on grounds of negligence and dishonesty arising from her handling of a tobacco consignment under customs entry number 2018MSA6941907. She alleged that after a laboratory report classified the consignment as unmanufactured tobacco under HS Code 2401.20.00 and a tariff ruling issued on 24 July 2018, she lawfully processed the file for release in June 2019 on an appeal by the importer. She claimed unfair termination, denial of fair hearing, and discrimination, since of the four officers involved she alone was dismissed. She sought declarations, notice pay of Ksh.594,000, twelve months' compensation of Ksh.2,376,000, general damages, reinstatement or a certificate of service, and costs. The respondent maintained that the claimant failed to enjoin PVOC in verification, released the consignment without payment of extra taxes of Ksh.34,593,693, acted on a non-existent appeal, and used a dummy file, all contrary to procedure. The court applied section 43 of the Employment Act, holding that an employer need only prove reasons it genuinely believed to exist on a balance of probability. The ISO investigations, the unfulfilled laboratory conditions, and the absence of any importer appeal established justified grounds. The disciplinary process, including notice, hearing and appeal, met procedural fairness. No discrimination was found. The claim was dismissed with each party bearing its own costs, and a certificate of service was held due upon the claimant's clearance.

Key legal issues

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01

Validity of the reasons for summary dismissal

Holding

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.

Reasoning

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.

p. 9
02

Procedural fairness of the disciplinary process

Holding

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.

Reasoning

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.

p. 9
03

Alleged discrimination

Holding

No discrimination established; the claimant's employment relationship was personal and she was culpable upon investigation.

Reasoning

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.

p. 10
04

Reinstatement and certificate of service

Holding

Reinstatement refused as termination was justified; a certificate of service is due under section 51 of the Employment Act subject to clearance.

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 1.The claim is dismissed for lack of merit
  2. 2.Each party is to bear its own costs
  3. 3.A certificate of service is due to the claimant under section 51 of the Employment Act upon her undertaking clearance with the respondent

Authorities

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Legislation

  • Employment Actsection 43
  • Employment Actsection 43(2)
  • Employment Actsection 51
  • Common External Tariff (Common Tariff)HS Code 2401.20.00; HS Code 2403.19.00
  • East African Community Customs Management Actnull
  • Excise Act and Regulationsnull
  • Kyoto Conventionnull

Cases cited (7)

  • Anthony Mkala Chitavi v Malindi Water & Sewerage Co. Limited
    [2013] eKLR
  • Matsesho v Newton (Cause 9 of 2019)
    [2022] KEELRC
  • Simba Corporation t/a Acacia Premier Hotel v Omondi (Appeal E007 of 2023)
    [2024] KEELRC
  • Charles Musungu Odana v Kenya Ports Authority
    [2019] eKLR
  • Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others
    [2019] eKLR
  • Inda v Kentaste Products Limited (Appeal E098 of 2023)
    [2024] KEELRC
  • Kenya Power & Lighting Company Limited v Aggrey Lukorito Wasike
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim; no specific constitutional provision invoked)

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, "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.