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Case Brief · caselaw.co.ke
ELRCDismissedCause No. 323 of 2020 [E289/2020]

Eliud Nyaenga Gwaro v Kenya Revenue Authority [2021] KEELRC 1413 (KLR)

Employment and Labour Relations Court of Kenya
29 March 2021
2,431 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The claimant, a verification officer at the Kenya Revenue Authority's Busia Border station, was terminated on 31st August 2018 following an investigation report of 11th May 2017 which found him culpable of colluding with clearing agents to divert 15 transit motor vehicles allegedly exited to Uganda. He sought a declaration of unfair termination, reinstatement, compensation, and in the alternative damages, alleging unfair procedure and discrimination. The respondent maintained the claimant neglected his duty by failing to ensure the vehicles exited, and that he was given a show cause notice, the investigation report, a disciplinary hearing, and additional time to produce supporting documents which he never supplied. The court framed four issues: unfair termination, discrimination, remedies, and costs. It found valid reasons under section 43 of the Employment Act, 2007, noting the electronic cargo tracking system showed the vehicles' signals ended at Mombasa and Nakuru and the Uganda Revenue Authority confirmed the goods never entered Uganda. Procedural fairness under section 41 was satisfied. The discrimination claim failed for want of evidence. Reinstatement and damages were refused, and the claimant was ordered to pay 50% of the respondent's costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether there was unfair termination of employment
  2. 2.Whether there is a case of discrimination against the claimant
  3. 3.Whether the remedies sought should be granted
  4. 4.Who should pay costs

Key legal issues

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01

Whether termination of the claimant's employment was with valid reasons under section 43 of the Employment Act

Holding

Yes - valid grounds existed; investigation established the vehicles did not exit the country and the claimant failed to give satisfactory responses

Reasoning

The investigating officer's evidence established that 15 transit vehicles allegedly exited to Uganda never exited; the electronic cargo tracking system showed signals ending at Mombasa and Nakuru, and URA confirmed goods never entered Uganda. The claimant, whose duty was to verify goods and process exit, failed to give satisfactory answers. Following CFC Stanbic Bank v Mwakuwon, reasonable grounds to suspect gross misconduct constitute genuine grounds for termination.

p. 4
02

Whether the termination procedure was fair under section 41 of the Employment Act

Holding

Yes - the claimant received a show cause notice, documents, written and oral hearing, and further time to produce evidence

Reasoning

The claimant was issued with a show cause notice, supplied with the investigations report and annexures on request, invited to a disciplinary hearing with rights outlined, given an oral hearing, and granted more time to submit supporting documents which he failed to produce. Section 41 requires notification, invitation to hearing and provision of evidence; these were satisfied.

p. 4
03

Whether the claimant was discriminated against

Holding

No - the claim was merely pleaded without any supporting evidence

Reasoning

The claimant alleged discrimination but tendered no evidence in support. Mere pleading without proof cannot sustain a finding of discrimination, and damages founded on that allegation therefore could not issue.

p. 4

Legal principles established

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  • An employee may be dismissed summarily for wilful neglect or careless performance of work which it was his duty to perform carefully and properly
  • Reasonable grounds and sufficient reasons to suspect gross misconduct detrimental to the employer constitute genuine grounds for termination of employment

Court orders

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  1. 1.The claims made are found without merit and are dismissed
  2. 2.The claimant shall pay the respondent 50% of its costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; Employment and Labour Relations Court Act)

Relief refused

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Declaration that termination was unfair and unlawful

Termination was found justified with valid reasons and fair procedure

p. 4

Reinstatement to work

Termination of employment was found justified

p. 4

Damages for unlawful termination / compensation for time lost

No case of discrimination was proved; there was no evidence of discrimination

p. 4

Costs

The claimant shall pay the respondent 50% of its costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, the claims made are found without merit and are hereby dismissed. the claimant shall pay the respondent 50% of its costs.
p. 4Final orders and costs
Section 41 of the Act requires such notification, invitation for hearing and provisions of evidence as required. There was procedural fairness in this case and termination of employment was justified.
p. 4Procedural fairness under section 41
where there were reasonable grounds and sufficient reasons to suspect that the employee had committed gross misconduct in his employment and had done acts which were substantially detrimental to the employer, such constituted genuine grounds for termination of employment
p. 4Valid reasons for termination - section 43
On the remedies sought, termination of employment found justified, reinstatement cannot issue.
p. 4Reinstatement refused

Issues in the judgment

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minor

Dates of the claimant's written response are inconsistent - the show cause response is described as both 7th March 2018 and 15th March 2018

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, "Eliud Nyaenga Gwaro v Kenya Revenue Authority [2021] KEELRC 1413 (KLR)", Case Analysis (2021). Cause No. 323 of 2020 [E289/2020]. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1413/eng@2021-03-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.