Okwaro v Kituo Cha Sheria t/a Legal Adivice Centre (Cause E560 of 2020) [2024] KEELRC 1796 (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 Claimant's dismissal from employment was unfair and unlawful
- 2.Whether the parties are entitled to the reliefs sought
Key legal issues
#Whether the termination was substantively fair (valid reasons)
Yes - misappropriation of funds, absenteeism and insubordination were established; the audit showed project funds diverted to petty cash and the Claimant, as head of finance, was ultimately liable
The Respondent relied on a 2018 warning letter, a suspension letter, a notice to show cause and an audit report by RW2. RW2 testified that project funds were used as petty cash contrary to donor restrictions. The Claimant's responses were unsatisfactory and she conceded the audit issues were raised and responded to. The court was satisfied the Respondent believed valid reasons existed at termination.
Whether the termination was procedurally fair under section 41 of the Employment Act
Yes - the Claimant was issued a show cause letter, responded, was invited to a disciplinary hearing with the right to be accompanied, was heard, and was permitted to submit further documents
The Claimant conceded being invited to the hearing, informed of the right to attend with a colleague, given the investigation report and allowed to respond. The delay in the hearing and the change of board did not render the process unfair; the new board had the relevant records. The court was satisfied the process complied with section 41.
Whether the Claimant was discriminated against
No - the Claimant did not specifically demonstrate how she was discriminated against; differential treatment was justified by her ultimate responsibility for finances
The Claimant alleged she was singled out after a defamatory email and a physical attack by the Executive Director's PA. The court found the disciplinary hearing concerned performance issues, not her complaints, and that the Respondent did act on the complaints by disciplining the PA and having staff respond. She also failed to use the grievance procedure in policy 30 of the manual.
Legal principles established
#- For a termination to be fair there must be both substantive and procedural fairness
- The employer bears the duty to prove and justify the reasons for termination under section 47(5) of the Employment Act, and the reasons must be fair and valid under section 43
- A head of finance is ultimately liable for losses of funds under her charge
Court orders
#- 1.The claim for unfair termination and the claim in its entirety is dismissed
- 2.Claim dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- First-instance claim under the Employment Act in the Employment and Labour Relations Court (specific enabling provision not stated in the judgment)
Relief refused
#Declaration that the Claimant's termination was unlawful, unprocedural and unjustified
Court found the Respondent had fair and valid reasons and followed a fair procedure
Monetary reliefs of Kshs 5,059,500 (salary arrears, notice pay, welfare deductions, 12 months' compensation, discrimination damages)
Entire claim found without merit and dismissed
General damages for emotional distress
Falls with the dismissed claim
Costs
The claim is dismissed with costs (costs to the Respondent).
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.
It is an established requirement that for a termination to pass fairness test there must be both substantive and procedural fairness.
the Respondent had fair and valid reasons to terminate the Claimant service and considering the process followed in executing the termination outlined earlier in the judgment, the Court is satisfied that the respondent did so through a fair procedure and in accordance with section 41 of Employment Act.
The claim for unfair termination and indeed the claim in its entirety is found without merit and is hereby dismissed with costs.
she did not dispute that as the head of Finance, she was the one liable ultimately in case of any loss of any money belonging to the Respondent under her charge.
Issues in the judgment
#The Respondent's counterclaim (reimbursement of Kshs 255,260 with interest and general damages) is neither determined nor expressly disposed of in the court's final orders, which only dismiss the Claimant's claim
Internal date inconsistencies in the pleadings/evidence: reference to a letter 'dated 21st March 209' and hearing 'to take place on 29th April, 2018' where 2019 is plainly meant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okwaro v Kituo Cha Sheria t/a Legal Adivice Centre (Cause E560 of 2020) [2024] KEELRC 1796 (KLR)", Case Analysis (2024). Not stated in the judgment extract (Employment and Labour Relations Court cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1796/eng@2024-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.