Ng’etich v Kenya Breweries Limited (Cause E829 of 2022) [2024] KEELRC 1177 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Respondent has proved that there was a valid and fair reason to terminate the employment of the Claimant
- 2.Was the Claimant accorded procedural fairness prior to being terminated from employment?
- 3.Is the Claimant entitled to the reliefs sought?
Key legal issues
#Valid and fair reason for termination
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
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.
Procedural fairness
The Respondent complied with section 41 of the Employment Act; the termination was procedurally fair
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.
Entitlement to reliefs
No reliefs were due as the termination was fair and lawful; severance pay is unavailable absent redundancy
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.
Legal principles established
#- 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
#- 1.Dismissal of the Claim in its entirety
- 2.Each party to bear their own 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; Article 159(2)(d) and Article 48 of the Constitution invoked in the delivery-of-judgment order
Relief refused
#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
Severance pay
Claimant was not declared redundant
Costs
Each party bears their 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.
In the final analysis, I dismiss the Claim in its entirety with an order that each party bears their own costs.
In the end, the Court finds that the Claimant’s termination from employment was neither unfair nor unlawful.
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.
the standard of proof required is on a balance of probability and not beyond reasonable doubt
the Claim for severance pay is misplaced seeing that the Claimant was not declared redundant.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.