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ELRCDismissedELRC No. E007 of 2024 (consolidated with E006, E047, E048 and E049 of 2024)

Guya v British Army Training Unit (BATUK) Kenya (Employment and Labour Relations Cause E007, E006, E047, E048 & E049 of 2024 (Consolidated)) [2025] KEELRC 1874 (KLR)

Employment and Labour Relations Court
27 June 2025
5,584 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld BATUK's dismissal of five employees for attempted theft, confirming employers win when they prove valid reasons and follow fair disciplinary procedure.

What this practically means

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Executive summary

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Five former employees of the British Army Training Unit Kenya (BATUK), all summarily dismissed on 15th November 2023 for gross misconduct arising from an attempted theft of the respondent's goods on 8th June 2023, consolidated their claims by consent in ELRC No. E007 of 2024. Each sought a declaration that the dismissal was unlawful and unfair, compensation, gratuity of one month's salary per year of service, accrued leave, costs and interest. The respondent denied liability, asserting valid reasons and fair procedure. The court framed two issues: whether the dismissals were unfair and unlawful, and whether the reliefs were payable. On the evidence, including CCTV footage, a detailed investigations report and admissions by the claimants, the court found that Isaac Wachira drove the lorry loaded with the employer's property without valid authorization; Denish Guya admitted loading two jericans of the employer's oil onto the lorry without a gate pass; and Daniel Muriuki, Ismael Ahmed and Abdulkarim Abubakar were involved in loading items from their stores, recovered from the intercepted lorry. The conduct amounted to gross misconduct under section 44(4)(g) of the Employment Act. The court further held that show cause letters, disciplinary hearings, consideration of representations and appeals satisfied section 41, and that the claimants failed to discharge their burden under section 47(5). Claims for compensation, gratuity and accrued leave were declined, gratuity requiring contractual, CBA, statutory or HR policy basis. All five suits were dismissed with costs to the respondent.

Questions the Court framed

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

  1. 1.Whether the dismissal of the claimants was unfair and unlawful.
  2. 2.Whether the claimants are entitled to the reliefs sought.

Key legal issues

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01

Whether there was a valid reason for the summary dismissals

Holding

The respondent proved on a balance of probability that all five claimants' conduct amounted to gross misconduct under section 44(4)(g) of the Employment Act

Reasoning

CW1 admitted loading two jericans of the employer's oil onto CW2's lorry without authority or a gate pass; CW2 was intercepted driving the lorry loaded with the employer's property without valid authorization, his explanation of a gate pass and ATUD being disbelieved. CCTV and the investigations report placed CW5, CW6 and CW7 at the loading of the vehicle, and items from their stores were recovered from the lorry. The employer only had to justify dismissal for being implicit in the theft, which it did.

p. 8
02

Whether fair procedure under section 41 of the Employment Act was followed

Holding

The respondent proved it followed fair procedure: show cause letters, disciplinary hearings, consideration of representations and appeals

Reasoning

All claimants were served with show cause letters, invited to and attended disciplinary hearings where they made representations which were considered before dismissal, and their appeals were heard and dismissed. This satisfies the requirements of section 41 as explained in George Musamali v G4S and Kenfreight (EA) Ltd v Benson K Nguti. The disciplinary hearing need not take the rigour of a court trial.

p. 9
03

Whether claimants discharged their burden of proving unfair termination under section 47(5)

Holding

Claimants failed to discharge their burden of proof

Reasoning

Once the employer established valid reason and fair procedure, the claimants, who bear the burden under section 47(5) of proving unfair termination, failed. Their explanations contradicted the detailed investigations report and CCTV evidence, and their denials were not credible.

p. 10

Legal principles established

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  • The burden of proving valid reason and fair procedure for termination lies on the employer under section 45 of the Employment Act
  • Gratuity is payable only if provided for in the contract of employment, a CBA, HR policy or statute, not by operation of the Employment Act

Court orders

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  1. 1.The five consolidated suits were dismissed with costs to the respondent

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 under the Employment Act (first-instance employment claims)
Consolidated with
ELRC Cause No. E006 of 2024 - Daniel Muriuki Muriithi v British Army Training Unit Kenya, ELRC Cause No. E047 of 2024 - Ismail Ahmed v British Army Training Unit Kenya, ELRC Cause No. E048 of 2024 - Abdulkarim Abubakah v British Army Training Unit Kenya, ELRC Cause No. E049 of 2024 - Isaac Wachira v British Army Training Unit Kenya

Relief refused

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Declaration that summary dismissal was unlawful and unfair

Dismissal was for a valid reason (gross misconduct) and followed fair procedure

p. 10

Compensation for unfair termination under section 49 of the Employment Act

Claimants failed to prove unfair termination

p. 10

Gratuity/terminal dues of one month's salary per year of service

Gratuity must be grounded in the contract, HR policy, CBA or statute; no HR Manual was shown

p. 10

Accrued leave

No particulars pleaded or evidence adduced

p. 10

Costs

The suits were dismissed with costs to the respondent (claimants to pay 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.

In the end, this suit and the other four suits consolidated herewith, lack merits and they are dismissed with costs.
p. 10Final orders - dismissal of all five consolidated suits
I am satisfied that the said misconduct was a valid reason for the summary dismissal of the claimants.
p. 8Valid reason for dismissal
I find and hold that the respondent has proved that it followed a fair procedure before dismissing the claimants.
p. 9Procedural fairness under section 41
I find that the claimants have failed to discharge their burden of prove under section 47(5) of the Employment Act of proving unfair termination of their employment by the respondent as alleged.
p. 10Burden of proof under section 47(5)

Issues in the judgment

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minor

CW3 (Dan Elisha Ocholla) is described in the evidence as a witness who never worked for the respondent at the material time, yet RW1 describes 'CW3 a carpenter' as dismissed for loading items - apparent internal inconsistency in witness numbering

minor

Judgment alternates between referring to CW2 and CW1 as 'Isaac' in RW1's testimony paragraph, e.g. 'He contended that the vehicle was not supposed to be loaded with anything as the CW1 (Isaac) had delivered the materials' although Isaac is CW2 elsewhere

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, "Guya v British Army Training Unit (BATUK) Kenya (Employment and Labour Relations Cause E007, E006, E047, E048 & E049 of 2024 (Consolidated)) [2025] KEELRC 1874 (KLR)", Case Analysis (2025). ELRC No. E007 of 2024 (consolidated with E006, E047, E048 and E049 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1874/eng@2025-06-27

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