Chepkuto v Egerton University Investment Co Ltd
The bottom line
#Kenya's Court of Appeal confirmed an employee's dismissal was justified because he misused a company safe, even though the disciplinary hearing was flawed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant was unfairly terminated
- 2.Whether the appellant was entitled to the reliefs sought
Key legal issues
#Whether taking and using the employer's safe for personal use amounted to gross misconduct justifying summary dismissal
Yes - the appellant's act of taking the safe, using it for his business and returning it only on demand amounted to misappropriation constituting gross misconduct under Section 44(4)(g).
The Court adopted dictionary definitions of misappropriation, holding it does not require theft or embezzlement. The appellant conceded taking the safe, kept it for five months using it for his business, and returned it only when ordered. The trial court's finding of misappropriation was affirmed, and the reason for dismissal was held valid and fair.
Whether the disciplinary process complied with Section 41 of the Employment Act
No - the termination was procedurally unfair because the appellant was not accompanied by a representative of his choice, was excluded while witnesses testified, and was not notified he was attending a disciplinary hearing.
Section 41 mandatorily requires the employer to explain the reasons in a language the employee understands, allow a fellow employee or union representative of choice, and hear representations. The invitation letter did not disclose it was a disciplinary hearing; the appellant was sent out while the employer's witnesses testified. These breaches rendered the termination unfair despite the valid reason.
Whether the appellant was entitled to additional remedies beyond the trial court award
No - the appellant wholly contributed to his termination and was entitled only to the Kshs.414,000 awarded by the trial court for unpaid salary and accrued leave.
Applying Sections 49 and 50 factors, the Court found the appellant caused or contributed to the termination by taking and retaining the safe. The trial court's award of two months' salary and 30 days' leave was undisturbed; claims for notice pay, compensation, gratuity and unexpired contract term were refused.
Legal principles established
#- On a first appeal, the Court of Appeal must defer to trial court findings of fact based on witness credibility, but may interfere where findings are based on no evidence, misapprehension of evidence, or wrong principles.
- Misappropriation does not necessarily connote theft or embezzlement; misuse of a company asset for personal gain may amount to misappropriation justifying summary dismissal.
- A dismissal may be for a valid reason yet unfair if the procedure under Section 41 of the Employment Act was not followed.
- The burden of proving unfair termination rests on the employee, while the burden of justifying the grounds of termination rests on the employer.
Court orders
#- 1.The appeal is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Nakuru
- ELRC Cause No. 402 of 2016
- Jurisdiction invoked
- First appeal under Rule 31(1)(a) of the Court of Appeal Rules
Relief refused
#All further compensation beyond the trial court award (notice pay, compensation for unfair termination, gratuity, unexpired contract term)
The appellant wholly contributed to his termination and failed to persuade the Court he was entitled to more
Setting aside the judgment and decree of the ELRC
The appeal lacked merit
Costs
Appeal dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result, the appeal lacks merit, and is hereby dismissed, with costs to the respondent.
misappropriation does not necessarily connote theft or embezzlement. The misuse of any company asset for personal gain may amount to misappropriation
Where there is a fair reason for terminating an employee’s service but the employer does it in a procedure that does not conform with the provisions of a statute that still amounts to unfair termination
the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds of the termination of employment or wrongful dismissal shall rest on the employer
Although the reasons for the dismissal of the appellant met the threshold, he was not allowed in the room at the disciplinary hearing while the respondent’s witnesses testied, nor was he accompanied by a representative of his choice
Issues in the judgment
#Judgment states the tractor allegation was dropped in the dismissal letter, but elsewhere says the dismissal letter included the tractor allegation though unproved
CMC Aviation and Ridge v Baldwin cited as '(supra)' but no earlier citation appears in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chepkuto v Egerton University Investment Co Ltd", Case Analysis (2024). Civil Appeal 14 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1848/eng@2024-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.