Simiyu v CBRE Corporate Outsourcing [PTY] Limited (Cause E390 of 2021) [2024] KEELRC 92 (KLR)
The bottom line
#Kenya's Employment Court upheld a dismissal where the employer followed fair procedure and had genuine reasons to fire an employee over procurement misconduct.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether termination of the Claimant's contract was executed fairly in accordance with section 41 of the Employment Act
- 2.Whether termination was based on valid reason(s) under section 43 of the Employment Act
- 3.Whether the Claimant merits the prayers sought
Key legal issues
#Procedural fairness under section 41 of the Employment Act
Procedure was fair: the Claimant was investigated, served with clear charges, supplied with the investigation report and witness interviews, heard personally, and given a right of appeal which she exercised.
The Respondent investigated the allegations, corrected its initial suspension without pay, convened a disciplinary hearing, supplied clearly worded charges plus the Lukorito report and interview records, and gave a personal hearing before an independent chair. The Claimant conceded she was advised of her rights and appealed; she did not show any contractual or procedural entitlement to a personal hearing on appeal.
Substantive fairness / valid reasons under section 43
Termination was based on valid reasons: the Claimant received payments into her M-pesa account without documentation and had suppliers bill the Respondent at 15% above cost, contrary to procurement policy and standards of business conduct.
The Lukorito report and documentary evidence showed the Claimant directed suppliers to pay money to her phone, inflated quotations (cameras procured at Kshs. 38,000 quoted at Kshs. 66,000), and double-charged on supply of tint. Her explanations did not displace these findings. Section 43 requires only that the employer genuinely believed the reasons existed.
Standard of proof and evidential burden on the employer's allegations
The employer was required only to meet the section 43 standard, not the criminal standard, and the Claimant's failure to request witnesses or call suppliers at the disciplinary hearing undermined her defence.
Although Lukorito and interviewees were not called, the Claimant never requested the disciplinary committee to call them, nor did she call suppliers to rebut the findings, despite having the interview records. The Court held the civil standard under section 43 sufficed and found the allegations proved on the material before the committee.
Legal principles established
#- The reason for termination under section 43 is what the employer genuinely believed to exist at the time of termination
- In unfair termination claims the employer need not prove allegations beyond reasonable doubt, only to the standard under section 43
- An employee is not entitled to create her own scheme of procurement practice
Court orders
#- 1.The Claim is declined.
- 2.No order on the costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, sections 41 and 43 (original employment claim)
Relief refused
#Declaration that termination was unfair and unlawful
The Court found procedure leading to termination was fair and termination substantively fair under section 43
1-month salary in lieu of notice at Kshs. 357,638
Claim dismissed in entirety
12 months' compensation for unfair termination at Kshs. 4,291,656
The Respondent had valid reason(s) to justify termination under section 43
Certificate of Service and costs
Claim declined and no order on costs
Costs
No order on the costs (each party to bear own costs)
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.
The Court is satisfied that procedure leading to termination was fair.
Termination was based on matters that the Respondent genuinely believed to exist, and was substantively fair, under section 43 of the Employment Act.
the Claimant was not entitled to create her own scheme of procurement practice, no matter how virtuous her intention was.
It is ordered: a. The Claim is declined. b. No order on the costs.
Issues in the judgment
#The names of the Claimant and Respondent are not stated in the judgment text; the Respondent is referred to only as CBRE in quoted passages
The case number/claim number does not appear in the judgment text supplied
Internal inconsistencies in dates: suspension stated as 3rd July 2019 in submissions and 2nd July 2019 in findings; salary restoration stated as e-mail dated 3rd July 2019 and later as 8th July 2019
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simiyu v CBRE Corporate Outsourcing [PTY] Limited (Cause E390 of 2021) [2024] KEELRC 92 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/92/eng@2024-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.