The Employment and Labour Relations Court has upheld a decision of the British Army Training Unit Kenya (Batuk) to sack five of its employees for allegedly attempting to steal engine oil from the Nanyuki military camp.
Justice Onesmus Makau ruled that the dismissal of Denish Odoyo, Daniel Muriuki, Ismail Ahmed, Abdulkarim Abubakah, and Isaac Wachira was both procedural and fair. He dismissed their compensation claim.
This is because they were served with show cause letters and were given a disciplinary hearing regarding the alleged theft before the termination.
The five employees were dismissed from Batuk in November 2023 for gross misconduct involving the attempted theft of the employer’s goods, including two five-litre jerricans of contaminated oil.
The incident occurred on June 8, 2023, four months earlier. Batuk is a permanent British Army training support unit, mainly based in Nanyuki, with a small presence in Nairobi. It operates under a Defence Cooperation Agreement with the Kenyan government.
The five were caught by the Batuk officers who had been tipped off about an ongoing theft. The goods had been loaded onto a truck driven by Mr Wachira. The officers pursued the truck, stopping it outside the camp, and ordered the driver to return to the site.
Although the claimants maintained their innocence and that their termination was unfair, Batuk stated that they had been involved in a well-orchestrated theft.
Batuk stated that the recovery of the goods was only possible due to the quick action after the report by a whistleblower, as the goods had already left the camp by the time they were intercepted.
All the claimants were subjected to a disciplinary process for their alleged involvement in theft, after which they were dismissed from their jobs.
The incident was also reported to the police, resulting in a criminal trial of Mr Wachira and Mr Odoyo. However, the case was withdrawn in February 2024 after it emerged that the witnesses had relocated to the United Kingdom and could not testify.
A key witness in the labour case was Major Jason Varndell, who testified that the vehicle in question had completed a community task the previous day and that it was not authorised to leave the camp on the day of the theft.
He stated that CCTV footage had been reviewed and an investigation report prepared, and that the five employees were found culpable of attempted theft.
Justice Makau found that, based on Batuk’s evidence, the employees’ conduct amounted to gross misconduct.
“I am satisfied that the said misconduct was a valid reason for the summary dismissal of the claimants. The claimants have not proved unfair termination, it is obvious that they are not entitled to compensation. Likewise, the claim for gratuity has not been proved and it is declined. A claim for payment of gratuity must be grounded on the contract of employment,” said Justice Makau.
The court found Batuk’s evidence more believable than that of the claimants. For instance, it was not disputed that Mr Wachira, the truck driver, had no authority to drive the lorry or take cargo outside the camp on June 8, 2023.
In addition, the oil in question belonged to Batuk, and the containers had been placed in the passenger side of the truck’s cabin. The claimants did so without authority or a gate pass.
“I find and hold that Batuk has proved that it followed a fair procedure before dismissing the claimants. I am satisfied that the employer has proved that both substantive fairness and procedural fairness were observed before separating itself from the claimants,” said Justice Makau.
