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ELRCDismissedMemorandum of Claim filed on 23rd May 2018 (number not stated in judgment)· [2023] KEELRC 2682 (KLR)

Wanjiru v Muthaiga Country Club (Cause 776 of 2018) [2023] KEELRC 2682 (KLR)

Employment and Labour Relations Court
27 October 2023
3,151 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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The Employment and Labour Relations Court dismissed a barman's unfair termination claim, confirming employers only need a genuine, reasonable belief in the reasons for dismissal.

What this practically means

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Executive summary

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The Claimant, employed as a Barman from 16th May 2014, challenged the termination of his employment by letter dated 3rd August 2017, alleging he was denied a fair hearing and crucial exculpatory evidence, and sought reinstatement or, in the alternative, compensation for wrongful termination. The allegations against him were the fraudulent posting of items to a member's account during his shifts and the disappearance of a bottle of Macallan whisky after a disco event on 31st May 2017. The Respondent maintained that the termination was fair, lawful and in accordance with his appointment letter. The Court framed three issues: whether there was a valid and fair reason for termination, whether the Claimant was accorded procedural fairness, and entitlement to reliefs. Relying on Kenya Revenue Authority vs Reuwel Waithaka Gitahi, the Court held that the employer needed only to prove on a balance of probability that it genuinely believed the reasons for termination existed. Colleagues' statements showed the stock was intact when handed to the Claimant, who was left in charge of the bar, making it more than probable he alone could account for the missing whisky. On procedure, applying Postal Corporation of Kenya vs Andrew K. Tanui, the Court found Section 41 of the Employment Act satisfied: the letter of 30th June 2017 notified him of the allegations and hearing, he attended with a representative, and he appealed. The subsequent notice to show cause dated 26th July 2017 was held to be inconsequential, as Section 41 does not prescribe how allegations must be communicated. Finding the termination neither unfair nor unlawful, the Court dismissed the Claim in its entirety with each party bearing its own costs. Judgment was delivered at Nairobi on 27th October 2023 by Stella Rutto, Judge.

Key legal issues

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01

Whether the Respondent had a valid and fair reason for termination

Holding

Yes - the reasons (fraudulent posting to a member's account and disappearance of a bottle of Macallan whisky during the Claimant's shift) were valid, fair and related to his conduct, and the employer genuinely believed them to exist

Reasoning

Section 43(1) requires the employer to prove reasons for termination, and Section 45(2) requires that they be valid and fair. Following KRA vs Reuwel Waithaka Gitahi, the standard is a balance of probability; the employer need only show reasons it genuinely believed to exist. Colleagues' statements showed stock was intact at handover, and the bottle went missing during the Claimant's shift, giving the employer reasonable and sufficient grounds.

p. 5
02

Whether the Claimant was accorded procedural fairness under Section 41

Holding

Yes - he was notified of the allegations by letter dated 30th June 2017, attended a hearing accompanied by a colleague, and was allowed to appeal

Reasoning

The letter of 30th June 2017 notified the Claimant of the allegations and his hearing rights; he attended with his representative Patrick Gakinya, who confirmed the process was fair. The subsequent notice to show cause dated 26th July 2017, served after the hearing, was deemed inconsequential and akin to restarting the process, but did not cure any defect since Section 41 was already satisfied.

p. 6
03

Entitlement to the reliefs sought

Holding

No - having found the termination neither unfair nor unlawful, the reliefs of reinstatement or compensation could not be sustained

Reasoning

Since both substantive and procedural fairness were established by the Respondent, the Claimant failed to prove unfair termination under Section 45, and the reliefs claimed in the Memorandum of Claim fell away.

p. 7

Legal principles established

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  • In termination disputes the employer need only prove on a balance of probability that the reasons for termination are matters it genuinely believed to exist at the time
  • Section 41 of the Employment Act does not prescribe the manner in which allegations are to be communicated to an employee; a single letter can serve to notify both the allegations and the hearing
  • The four elements for a fair termination procedure are explanation of grounds in a language understood by the employee, the reason for considering termination, entitlement to a companion of choice, and hearing of representations

Court orders

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  1. 1.The Claim is dismissed in its entirety
  2. 2.Each party bears its own costs

Authorities

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Legislation

  • Employment ActSection 43(1)
  • Employment ActSection 45(2)(a) and (b)
  • Employment ActSection 45(2)(c)
  • Employment ActSection 41(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (4)

  • Mary Chemweno Kiptui vs Kenya Pipeline Company Limited
    (2014) eKLR
  • Joshua Rodney Marimba vs Kenya Revenue Authority
    (2019) eKLR
  • Kenya Revenue Authority vs Reuwel Waithaka Gitahi & 2 others
    [2019] eKLR
  • Postal Corporation of Kenya vs Andrew K. Tanui
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 41, 43, 45) and Article 162(2) of the Constitution (employment and labour relations)

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, "Wanjiru v Muthaiga Country Club (Cause 776 of 2018) [2023] KEELRC 2682 (KLR)", Case Analysis (2023). Memorandum of Claim filed on 23rd May 2018 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2682/eng@2023-10-27

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