Makori v Gusii Mwalimu Sacco Ltd (Cause E036 of 2023) [2024] KEELRC 1338 (KLR)
The bottom line
#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 termination of the Claimant's employment was procedurally fair under section 41 of the Employment Act, 2007
- 2.Whether the Respondent proved valid and fair reasons for the termination under sections 43 and 45 of the Employment Act, 2007
- 3.Whether the Claimant was entitled to unpaid wages withheld during interdiction
- 4.Whether the Claimant was entitled to gratuity under clause 18.1 of the Terms and Conditions of Service
- 5.Whether the Claimant was entitled to compensation (terminal benefits) under clause 18.1
- 6.Whether the Respondent's Counterclaim was barred by the limitation period in section 90 of the Employment Act, 2007
Key legal issues
#Procedural fairness in termination
The Respondent substantially complied with section 41 of the Employment Act by informing the Claimant of the allegations and granting written and oral hearings before dismissal.
The Claimant was interdicted on 3 October 2019 for the unauthorised production of an ATM card, was instructed to make written representations within two weeks, responded by letter dated 17 October 2019, and appeared before a Board Committee on 29 October 2019 for oral representations before the dismissal decision of 24 July 2020. This satisfied the notice and hearing requirements of sections 35(1) and 41.
Substantive fairness of termination
The Respondent proved valid and fair reasons for termination: the Claimant initiated production of an ATM card without the account holder's request and used it to withdraw funds.
The account holder testified she never applied for the card; a Customer Executive testified the card was not issued through the normal customer desk; records showed the Claimant, an ICT officer, initiated production at 1127 hours and the card was used to withdraw funds at 1136 hours; the Claimant admitted liability in writing and failed to prove alleged coercion. The evidence cumulatively satisfied sections 43 and 45.
Limitation of the Counterclaim
The Counterclaim filed more than three years after the Claimant's written admission of liability is time-barred under section 90 of the Employment Act, 2007.
The wrongful acts were pleaded as occurring between 14 February 2019 and 17 September 2019, and the Claimant admitted liability in writing on 6 November 2019. The Counterclaim was lodged on 10 July 2023, more than three years later, and is therefore caught by the limitation prescription in section 90.
Legal principles established
#- Procedural fairness under section 41 of the Employment Act is satisfied where the employee is made aware of the allegations and given written and oral opportunities to respond before dismissal.
- The employer bears the burden of proving valid and fair reasons for termination under sections 43 and 45 of the Employment Act, 2007.
- A counterclaim based on an admitted liability in writing is subject to the three-year limitation period in section 90 of the Employment Act, 2007.
Court orders
#- 1.The Cause is dismissed with costs
- 2.The Counterclaim is dismissed with 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 over employment disputes (Employment Act, 2007)
Relief refused
#Claim for unfair termination (compensation/declaratory relief)
Respondent substantially complied with procedural fairness and proved valid and fair reasons for termination
Unpaid wages of Kshs 1,049,798/- withheld during interdiction
Under the Terms and Conditions of Service, withheld salary is payable only upon lifting of the interdiction, which never happened; the Claimant was dismissed
Gratuity under clause 18.1 of the Terms and Conditions of Service
Gratuity is payable upon retirement and the Claimant did not retire; his employment was terminated
Compensation (terminal benefits) under clause 18.1
Clause 18.1 provides for terminal benefits upon retirement, which did not occur
Costs
The Cause is dismissed with costs; the Counterclaim is also dismissed with 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 the Respondent substantially complied with the requirements of procedural fairness.
The Respondent had and proved in Court valid and fair reasons to terminate the Claimant’s employment.
The Counterclaim is caught up by the limitation prescription in section 90 of the Employment Act, 2007 and is dismissed.
The Court finds no merit in the Cause and it is dismissed with costs.
The Counterclaim is also dismissed with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makori v Gusii Mwalimu Sacco Ltd (Cause E036 of 2023) [2024] KEELRC 1338 (KLR)", Case Analysis (2024). Not stated in judgment (Cause instituted 8 June 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1338/eng@2024-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.