Ndichu v Kenya Breweries Limited (Cause E472 of 2023) [2024] KEELRC 2397 (KLR)
The bottom line
#A Kenyan court ruled BAT Kenya unfairly fired an employee based on an unseen police report, awarding him four months' salary.
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 had a valid and fair reason to terminate the Claimant's employment (substantive fairness)
- 2.Whether the termination was conducted in accordance with fair procedure (procedural fairness)
- 3.Whether the Claimant was discriminated against
- 4.Whether the Claimant's constitutional rights were violated
- 5.What remedies, if any, are appropriate
Key legal issues
#Substantive fairness of the termination
The Respondent failed to prove a valid and fair reason; the termination was based on suspicion and an unavailed police investigation report
Under Section 43 of the Employment Act the employer must prove reasons genuinely believed to exist. The Respondent relied exclusively on a police investigation report it never filed or availed, and its internal investigations had exonerated the Claimant twice. The disciplinary committee heard three witnesses who did not implicate the Claimant. The Court found the grounds were not evidentially demonstrated.
Procedural fairness of the termination
Termination was procedurally unfair because the evidence relied on (the Investigation Report) was not availed to the Claimant or even to the disciplinary committee
Although the Claimant was notified of charges, heard, accompanied by a colleague and his appeal handled, the Investigator's Report forming the basis of the charges was never shared with him. Applying Section 4(3)(g) of the Fair Administrative Action Act and Postal Corporation v Tanui, non-availment of the evidence destroyed his ability to mount an effective defence.
Suspicion of a criminal offence as gross misconduct under Section 44(4)(g) and Clause 7.13
Mere suspicion without reasonable and sufficient grounds demonstrated did not constitute gross misconduct
The termination letter invoked Section 44(4)(g) of the Employment Act and Clause 7.13 of the Disciplinary Policy. The Court held the second limb (suspicion on reasonable and sufficient grounds) applied since no offence was proved, but found the suspicion not established on any evidence availed, so the Claimant was not shown to have violated the policy.
Quantum of compensation under Section 49(1)(c)
Equivalent of four months' gross salary awarded as fair compensation
The Court considered the Claimant's 16½ years of service, his appeal, his contribution to the loss by failing to notice the shortfall, payment of full terminal dues and certificate of service, absence of malice, and lack of evidence of mitigation, concluding four months' gross salary was fair.
Legal principles established
#- An employer need only prove reasons it genuinely believed to exist for termination - a partly subjective test
- Charges against an employee must be grounded on evidence availed to the employee in reasonable time before the hearing; non-availment derogates the right to be heard
Court orders
#- 1.Declaration that termination of employment by the Respondent was unfair
- 2.Equivalent of four (4) months gross salary Kshs.2,161,043.12
- 3.Costs of this suit to the Claimant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 43, 45, 49 of the Employment Act; Section 12(3)(vii) of the Employment and Labour Relations Court Act, 2011
Relief refused
#Damages for discrimination
No particulars of discrimination pleaded; witness statement silent; claim lacks supportive evidence
Damages for constitutional violations and breaches
No constitutional provisions, dates or manner of violation pleaded or proved
Reinstatement
Remedy is discretionary and for unique circumstances; Claimant contributed to termination, was paid terminal dues, gave no evidence on mitigation or practicality of reinstatement more than 2 years later
Exemplary damages
Neither pleaded nor supported by evidence
Costs
Costs of this suit awarded to the Claimant
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 conclusion, judgment is entered in favour of the Claimant against the Respondent as follows; a. Declaration that termination of employment by the Respondent was unfair. b. Equivalent of four (4) months gross salary Kshs.2,161,043.12. c. Costs of this suit.
From the foregoing, it is the finding of the Court that termination of the Claimant's employment was not conducted in accordance with justice and equity and was thus unfair.
Charges against an employee must be grounded on cogent and verifiable evidence comprising documentary evidence or recorded oral testimony which ought to be availed to the employee within reasonable time before the trial to allow sufficient time for preparation of a defence.
The easier option was to find the Claimant culpable based on a report the Committee did not have for purposes of the hearing.
It is unclear as to why the Respondent decided to conduct a hearing on the charges grounded on the police investigation report yet it neither availed it nor summon the Investigation Officer, as it was his report.
Issues in the judgment
#Judgment contains internally inconsistent dates: show cause dated 9th March, 2021 appears in the paragraph on events of 2022, and the exonerating letter is dated both 31st April, 2021 (a non-existent date) and 21st April, 2021
Termination letter date given inconsistently as 22nd April, 2022 and 22nd April, 2020
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndichu v Kenya Breweries Limited (Cause E472 of 2023) [2024] KEELRC 2397 (KLR)", Case Analysis (2024). ELRC Cause (Nairobi), Statement of Claim dated 9th June 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2397/eng@2024-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.