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ELRCDismissedNot stated in the judgment as provided

Ng’etich v Kenya Breweries Limited (Cause E829 of 2022) [2024] KEELRC 1177 (KLR)

Employment and Labour Relations Court
17 May 2024
3,708 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld the firing of an employee who sent Kshs 400 to a recruiter, ruling even small payments can justify dismissal.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 2nd October 2014 and confirmed as a Quality Analyst, was terminated on 26th May 2021 over allegations that he offered a bribe of Kshs 400/= to an employee of a third-party recruitment contractor (Q-Sourcing) to influence the recruitment of candidates whose names he had forwarded. He claimed Kshs 3,423,615.50 for notice pay, compensation for unfair termination, severance pay and unutilized leave for 2021, contending his termination breached the rules of natural justice, the Constitution, the Employment Act and the Fair Administrative Actions Act, and complained that his accuser neither recorded a statement nor testified. The Respondent maintained the Claimant admitted sending the money in his handwritten statement and before the Disciplinary Committee, and that substantive and procedural fairness was observed. Applying sections 43 and 45 of the Employment Act and the balance-of-probability standard from Kenya Revenue Authority vs Reuwel Waithaka Gitahi, the Court found the Respondent had reasonable grounds to believe the money was intended to influence recruitment, treating the payment as a facilitation fee in breach of the Code of Business Conduct; the small amount did not matter given the context and motive. On procedure, the Claimant received a Notice to Show Cause, responded, attended a virtual hearing with rights to accompaniment and witnesses, and exercised an appeal which was upheld. The termination was held neither unfair nor unlawful, the reliefs therefore failed, and severance pay was unavailable absent redundancy. The Court dismissed the Claim in its entirety with each party bearing their own costs.

Questions the Court framed

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

  1. 1.Whether the Respondent has proved that there was a valid and fair reason to terminate the employment of the Claimant
  2. 2.Was the Claimant accorded procedural fairness prior to being terminated from employment?
  3. 3.Is the Claimant entitled to the reliefs sought?

Key legal issues

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01

Valid and fair reason for termination

Holding

The Respondent proved a valid and fair reason - the Claimant's improper conduct in sending money to a recruiting contractor in connection with a recruitment process breached the Code of Business Conduct

Reasoning

The Claimant did not deny sending Kshs 400/= to the third-party recruiter and had forwarded candidates' names for recruitment. The recruiter reversing the transaction cast doubt on the Claimant's airtime-request explanation. The money's purpose was connected to the recruitment process, amounting to a facilitation fee. Applying sections 43(1) and 45(2)(a) and (b) of the Employment Act and the balance-of-probability standard from Kenya Revenue Authority vs Reuwel Waithaka Gitahi, the Respondent genuinely believed the integrity-related misconduct occurred.

p. 6
02

Procedural fairness

Holding

The Respondent complied with section 41 of the Employment Act; the termination was procedurally fair

Reasoning

The Claimant recorded a statement, responded to the Notice to Show Cause, was invited to a virtual disciplinary hearing with notice of his right to be accompanied by a colleague and to call witnesses, attended and made representations, and was informed of his right to appeal, which he exercised and which was determined by the Human Resource Director.

p. 7
03

Entitlement to reliefs

Holding

No reliefs were due as the termination was fair and lawful; severance pay is unavailable absent redundancy

Reasoning

Having found both substantive and procedural fairness, the Court held that the reliefs in the Memorandum of Claim could not be sustained, and separately noted that severance pay under section 40(1)(g) applies only to redundancy, which was not the case here.

p. 7

Legal principles established

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  • The standard of proof in employment termination is on a balance of probability, and the employer need only prove reasons it genuinely believed to exist
  • The significance of money sent in a workplace disciplinary context lies in its context, motive and what it represents, not its amount

Court orders

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  1. 1.Dismissal of the Claim in its entirety
  2. 2.Each party to bear their own 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 under the Employment Act; Article 159(2)(d) and Article 48 of the Constitution invoked in the delivery-of-judgment order

Relief refused

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Kshs. 3,423,615.50 being notice pay, compensation for unlawful termination, severance pay, and unutilized leave days for 2021

The Court found the termination neither unfair nor unlawful, so the reliefs could not be sustained; severance pay is inapplicable absent redundancy

p. 7

Severance pay

Claimant was not declared redundant

p. 7

Costs

Each party bears their own 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.

In the final analysis, I dismiss the Claim in its entirety with an order that each party bears their own costs.
p. 7Final orders - dismissal with no order as to costs
In the end, the Court finds that the Claimant’s termination from employment was neither unfair nor unlawful.
p. 7Conclusion on fairness of termination
the main issue here is the context in which the money was sent and more importantly, the motive for sending the money and what the money represents.
p. 6Significance of small bribe amounts - context and motive
the standard of proof required is on a balance of probability and not beyond reasonable doubt
p. 6Standard of proof in termination cases
the Claim for severance pay is misplaced seeing that the Claimant was not declared redundant.
p. 7Severance pay only available on redundancy

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, "Ng’etich v Kenya Breweries Limited (Cause E829 of 2022) [2024] KEELRC 1177 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1177/eng@2024-05-17

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