Kipketer v Eldoret Shuttle Savings & Credit Co-operative Society Limited (Employment and Labour Relations Appeal E004 of 2023) [2025] KEELRC 313 (KLR)
The bottom line
#A Kenyan court upheld a Sacco manager's fraud-based dismissal but awarded one month's salary because the employer never told him he could bring a companion to the hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the reason for termination was valid and fair (substantive fairness)
The Respondent proved sufficient and proper grounds upon which it genuinely believed the Appellant was involved in fraud, as he controlled the dockets where malpractices were alleged.
The court applied section 43(2) of the Employment Act, which defines reasons for termination as matters the employer genuinely believed to exist at the time. RW1's uncontroverted evidence that only the Appellant had access to the portal with the list of motor vehicles released without payment connected him directly to the alleged offence. Applying the band of reasonableness test from British Leyland v Swift, the court found the dismissal substantively fair.
Whether fair procedure under section 41 of the Employment Act was followed (procedural fairness)
The Appellant was invited to and heard at the disciplinary hearing, so the Respondent substantially complied with the disciplinary procedure, but the failure to inform him of his right to be accompanied by a colleague or shop floor union official rendered the termination unprocedural to that limited extent.
Although no formal invitation letter was issued, the minutes of the management meeting of 14th March 2020 showed the Appellant attended and was interviewed on the allegations. His own pleadings admitted he appeared before the committee. However, section 41(1) requires the employer to inform the employee of the right to be accompanied; that omission was a procedural defect justifying limited compensation of one month's salary.
Whether the Appellant was entitled to the reliefs sought
Only one month's salary as compensation for the procedural defect was awarded; the notice pay, underpayment, leave prorate and loss of expected income claims failed.
The notice pay had already been paid and used to offset the Appellant's debt; underpayment and leave claims were unproved; and section 49 of the Employment Act does not provide for payment for the unexpired term of a contract. The court therefore substituted the trial court's dismissal with a limited award of one month's salary (Kshs. 29,000) and 50% costs.
Legal principles established
#- Termination of employment is unfair where there is no valid reason and fair procedure is not followed; the legal burden of proof lies with the employee while the evidential burden of justifying the termination lies with the employer.
- On a first appeal, the court is required to consider and evaluate the evidence afresh and draw its own conclusions, bearing in mind that it did not hear and see the witnesses.
- Substantial compliance with the disciplinary procedure may satisfy section 41 of the Employment Act even where the formal letter inviting the employee to the hearing was not issued, though failure to inform the employee of the right to be accompanied renders the termination unprocedural to that extent.
Court orders
#- 1.A declaration that the termination of the Claimant's employment was unprocedural only to the extent that he was not informed of his right to be accompanied by a colleague or shop floor union official of his choice
- 2.The Appellant is awarded 1 (one) month's salary as compensation for unfair dismissal at Kshs. 29,000.00
- 3.The Appellant is awarded 50% of costs both in the trial court and in the appeal
- 4.Interest at court rates shall accrue from date of this judgment
- On appeal from
- Trial court (magistrates' court, ELRC jurisdiction)
- Jurisdiction invoked
- First appellate jurisdiction over the trial court's judgment dismissing the Claimant's unfair termination suit (Employment Act 2007; Employment and Labour Relations Court (Procedure) Rules 2016)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kipketer v Eldoret Shuttle Savings & Credit Co-operative Society Limited (Employment and Labour Relations Appeal E004 of 2023) [2025] KEELRC 313 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 20th February 2023 (ELRC appeal, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/313/eng@2025-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.