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ELRCPartially AllowedMemorandum of Claim dated 23rd October, 2023

Korir v Boresha Sacco Society Ltd (Employment and Labour Relations Cause E055 of 2023) [2024] KEELRC 1606 (KLR)

Employment and Labour Relations Court
27 June 2024
6,080 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld a SACCO branch manager's dismissal for failing to supervise operations, awarding him only payment for unused leave days.

What this practically means

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Executive summary

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The claimant, formerly branch manager of the respondent's Chemolingot branch, sued for compensation alleging unfair termination. He was suspended on 10th August 2021 following discrepancies in reconciliation reports for 2018-2020 which indicated members had lost funds, was heard by a disciplinary committee on 15th November and 29th December 2021, and was summarily dismissed by letter dated 16th June 2022 on the ground that his omissions caused the loss of over Kshs 13 million. He claimed notice pay, twelve months' compensation, unpaid salary, and leave pay, while the respondent maintained the dismissal was for valid reason and fair procedure, attributing losses to his failure to supervise daily reconciliations and to account for lost motorbikes, phones and Kshs 49,150. The court framed two issues: whether the dismissal was fair and justified, and whether remedies were due. It found the claimant, as branch manager, had a duty to oversee all branch operations, stayed aloof and over-delegated, and that there were therefore valid reasons for dismissal; it also found he was taken through a fair disciplinary process under section 41 of the Employment Act. Consequently the dismissal was held fair and justified under section 45(2). All reliefs were refused save for unused leave days, awarded at Kshs 318,904. Each party was ordered to bear its own costs. Judgment was delivered virtually on 27th June 2024 by Hellen Wasilwa, Judge.

Questions the Court framed

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

  1. 1.Whether the Claimant's dismissal was fair and justified
  2. 2.Whether the Claimant is entitled to the remedies sought

Key legal issues

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01

Whether there were valid grounds for the Claimant's dismissal

Holding

Yes - the Claimant failed in his duties as branch manager, losing touch with branch operations and over-delegating, causing loss of members' funds

Reasoning

The court found the Claimant headed branch operations, was responsible for ensuring reconciliations and oversight of staff, and stayed aloof while cash was lost. Investigation reports and disciplinary minutes supported the reasons. His plea that he was not an accountant did not relieve him of his managerial supervisory duty, so the employer proved a valid reason under section 45(2).

p. 11
02

Whether fair procedure under section 41 was followed

Holding

Yes - the Claimant was given notice to show cause, responded, attended disciplinary hearings on 15/11/2021 and 29/12/2021, and an appeal was considered

Reasoning

The court noted the Claimant was suspended with a notice to show cause, responded in writing, was heard by the disciplinary committee on two occasions, and minutes of the hearings were produced. Although new allegations of lost motorbikes and phones surfaced during the hearing, the court accepted the process met the section 41 threshold.

p. 11
03

Whether the Claimant is entitled to the remedies sought

Holding

Only payment for unused leave days of Kshs 318,904; all other reliefs refused

Reasoning

Having found the dismissal fair and justified, the court held the Claimant was not entitled to notice pay, compensatory damages or unpaid salary claims. However, the court found the Claimant proved his claim for unused leave days for 2021-2023 (about 100 days) and awarded Kshs 318,904 under that head.

p. 12

Legal principles established

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  • A termination of employment is unfair if the employer fails to prove a valid and fair reason and fair procedure under section 45(2) of the Employment Act
  • A branch manager has a supervisory duty over all branch operations and cannot escape liability by pleading that he was not an accountant

Court orders

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  1. 1.Award to the Claimant of Kshs 318,904 for unused leave days
  2. 2.Each party to bear its 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 over unfair termination claims under the Employment Act, 2007

Relief refused

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One month salary in lieu of notice (Kshs 143,500)

Dismissal was found fair and justified, being a summary dismissal for valid cause

p. 11

Twelve months' compensatory damages (Kshs 1,722,000)

Termination was substantively and procedurally fair; compensation under section 49 not available

p. 12

Unpaid half salary August 2021 - April 2022 (Kshs 645,750)

Not awarded as remedies were refused

Unpaid salary May - September 2022 (Kshs 574,000)

Not awarded; the relationship having ended with the fair dismissal

Costs

Each party will bear its 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.

From the evidences on record, the Claimant indeed failed in his duties as branch manager. There were therefore valid reasons for his dismissal.
p. 11Validity of reason for termination
I find that he was also subjected to a fair disciplinary process as envisaged under Section 41 of the Employment Act 2007.
p. 11Procedural fairness
It is my finding that the Claimant was fairly and justifiably dismissed as per section 45 (2) of the Employment Act 2007
p. 11Substantive fairness under section 45(2)
the Claimant is not entitled to the remedies he has sought save for his unused leave days, which I find for him and award at Kshs 318,904/=. Each party will bear its own costs.
p. 12Final orders and remedies

Issues in the judgment

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material

Contradictory dates for the dismissal letter: paragraph 70 states 10/6/2023 while paragraphs 11, 21 and 83 state 16/6/2022

minor

Inconsistent figures for the total loss attributed to the Claimant across pleadings and submissions (Kshs 13,982,208; Kshs 13,851,990; Kshs 13,921,240; Kshs 12,814,635)

minor

Gross monthly salary stated inconsistently (Kshs 119,000 at appointment said to be 'raised to Kshs 143,500' yet contract dated 2017 refers to 143,500 in reliefs)

minor

Date of Claimant's letter to Respondent appears as 21/20/2021, an impossible date

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, "Korir v Boresha Sacco Society Ltd (Employment and Labour Relations Cause E055 of 2023) [2024] KEELRC 1606 (KLR)", Case Analysis (2024). Memorandum of Claim dated 23rd October, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1606/eng@2024-06-27

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