Beatrice Jelimo Toroitich v S G S Kenya Ltd & 2 others [2021] KEELRC 74 (KLR)
The bottom line
#A Kenyan court ruled an employer must actually prove fraud allegations before firing an employee, awarding her ten months' salary when it couldn't.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was procedurally fair
Procedural fairness under Section 41 was served: the Claimant received a show cause letter, responded, attended a disciplinary hearing and was advised of her right to be accompanied.
The Claimant admitted receiving the show cause letter dated 16th November 2016, responding to it, attending the disciplinary hearing of 25th November 2016, and being informed of the right to be accompanied by a witness. The court thus found the Section 41 procedural requirements met, even though the reasons for termination were later found invalid.
Whether the termination was substantively fair
Not substantively fair; the employer failed to prove the allegations of falsified receipts and fraud, so the reasons for termination were invalid and the termination unfair under Sections 43 and 45.
The employer never disputed that the Claimant travelled and undertook the audit assignment for the days claimed, nor the cost of reasonable accommodation. The employer's only allegation was that the hotel did not exist and the contacts on the receipts belonged to the Claimant or an individual; it conducted no conclusive investigations, did not involve Safaricom, and its two letters made differing allegations. The burden of proving the fraud allegation lay on the employer and was not discharged.
Whether the 1st Respondent's counter-claim was proved
The counter-claim for kshs.67,750 was not proved and was dismissed.
The 1st Respondent counter-claimed for the accommodation sums on the basis of the same fraud allegations that failed at the substantive stage. Since the allegations of falsification and fraud were not proved, the counter-claim necessarily failed.
Legal principles established
#- Under Section 43 of the Employment Act, the employer bears the burden of proving the reasons for termination, failing which the termination is deemed unfair under Section 45
- A termination is unfair where the employer fails to prove a valid and fair reason and a fair procedure
- He who alleges must prove - the employer alleging fraud must prove it
Court orders
#- 1.Judgment entered in favour of the Claimant against the 1st Respondent for ksh.986,435.20 being ten (10) months' salary as compensation for unfair termination of employment
- 2.The 1st Respondent directed to issue the Claimant with a Certificate of Service within forty five (45) days of the judgment
- 3.The Claimant's claim against the 2nd and 3rd Respondents dismissed with no orders as to costs
- 4.The Claimant awarded costs of the claim and of the Counter-Claim, with interest at Court rates from the date of judgment until payment in full
- 5.The 1st Respondent's Counter-Claim dismissed
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (Sections 41, 43, 45, 49) and the Evidence Act (Section 107)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Beatrice Jelimo Toroitich v S G S Kenya Ltd & 2 others [2021] KEELRC 74 (KLR)", Case Analysis (2021). ELRC Cause (Mombasa), Memorandum of Claim dated 20th February 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/74/eng@2021-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.