https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1455

Bosire v Kenya Revenue Authority (Cause E054 of 2024) [2026] KEELRC 1455 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1455 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Cause E054 of 2024 K Ocharo, J May 28, 2026 Between Collins Bosire Claimant and Kenya Revenue Authority Respondent Judgment 1.After 15 years and two months working for the Respondent in what seemed a smooth and fulfilling employment, the relationship abruptly faced difficulties, leading to an unexpected and unpleasant ending. The Claimant argued that the Respondent initiated the termination unfairly and filed the instant lawsuit against the Respondent, seeking the following reliefs;a.Damages for unfair termination-Kshs 5,125,000/=b.General damages due to discrimination.c.Loss of future earnings Kshs 148,200,000/=d.Costs of the suit and interest at the prevailing court rates.e.Any other relief that this honourable court may deem fit to grant. 2.The Respondent contested the Claimant’s case through the Response to the Memorandum of Claim dated 30th July, 2024. The Respondent contends that the Claimant was employed by it from 3rd December 2004 until his dismissal on 23rd July 2021; however, the dismissal was lawful, fair, and conducted in accordance with proper procedural requirements. 3.At the hearing, the parties adopted their witness statements filed herein as part of their evidence in chief and presented as their documentary evidence the documents they had filed under their lists of documents. Claimant’s case 4.The Claimant’s case is that he was employed by the Respondent, the Kenya Revenue Authority, on 3rd December 2004 as a graduate management trainee, and that he rose through the ranks to serve as acting Manager within the Customs and Border Control Department. He states that he worked diligently and was promoted several times to the positions of Revenue Officer, Supervisor, Assistant Manager at the Customs Warehouse, Head of Container Freight Stations, and later Manager in charge of Enforcement at Kilindini Port, Mombasa. 5.The Claimant contends that on 4th February 2020, he was interdicted. The interdiction letter did not clearly state why he was being interdicted. The vague mention was that it was because of misconduct. 6.Eventually, it dawned on him that he was being accused of matters relating to the listing of Motor Vehicle Chassis Number WVWZZZ3CZ8PO83681, Volkswagen Passat (Lot No. 192/16) for auction in 2016 while he served as a warehouse keeper. He asserts that he was not responsible for the final auction list, which he states was prepared by the Manager of Customs Warehouse, whom he was answerable to, together with the auctioneer appointed by the Commissioner of Customs. 7.He asserted that his role was limited to preparing a list of all motor vehicles that had overstayed in the warehouse. Thereafter, the Manager Customs warehouse and the appointed Auctioneer would compile a final list of vehicles for a particular auction. 8.The Claimant stated that the auction process in issue was the first one he ever organised in his role. He subsequently organised sixteen [16] more over the years without anyone raising an issue. 9.The Claimant stated that the Respondent dismissed him on 23rd July 2021, despite the fact that the then Acting Commissioner of Customs and Border Control, Mrs Pamela Ahogo, had written an Internal Memo dated 13th November 2020 to the Commissioner of Intelligence and Strategic Operations, indicating that he [the Claimant] was not culpable. In the Memo, she acknowledged that it wasn’t his role to ensure the accuracy of the final list. She recommended that the disciplinary action be dropped. 10.The Memo by the Commissioner came in when the Claimant had been invited for a disciplinary hearing. Inexplicably, the Disciplinary Committee did not consider the recommendation at all. It was not right for the Committee to go against the recommendation. 11.The Customs Warehouse Procedure Manual, and more particularly Clause 6, set out what his role entailed. Ensuring the accuracy of the final list wasn’t spelt out as one of his responsibilities. 12.In the year 2017, he was the only Manager recognised as the best ever in revenue collection. He was issued a certificate to that effect. In the year 2018, his performance appraisal rated his performance as excellent. The rating was informed by the reforms he successfully initiated in the Scanner Department. 13.The recognitions and promotions in his favour do not support the Respondent’s allegation that he was negligence. 14.The Claimant avers that his dismissal was wrongful, unfair, discriminatory, and motivated by malice and ill motive. He states that the Respondent failed to follow the procedure prescribed under sections 41, 44, 45, and 50 of the Employment Act, 2007, and that his appeal against the dismissal was handled cursorily despite his demonstrating his innocence. He further claims that the interdiction and dismissal were based on discrimination related to his ethnicity and region. 15.The Claimant further states that at the time of dismissal, he was earning a gross monthly salary of Kshs 268,000/=, was only 41 years old, and had prospects of further promotion owing to his qualifications, including a Master’s Degree in Customs Administration. He claims that the unfair dismissal deprived him of future career progression and earnings he expected to attain through promotions to the positions of Manager, Chief Manager, Deputy Commissioner, and Commissioner. Consequently, he seeks damages for unfair termination, damages for discrimination, loss of future earnings, costs, interest, and any other relief the court may deem fit. 16.Cross-examined by Counsel for the Respondent, the Claimant stated that in 2016, he was a Warehouse Keeper at Kilindini Port. Part of his duties was to prepare auction lists. The Manual guided the discharge of his duties. Clause 6.1 of the Manual refers to the Warehouse Keeper. 17.The Claimant further testified that the Kenya Bureau of Standards certificate would not be issued before the listing. It would only be after. He reiterated that he was not responsible for preparing the final auction list. 18.Mr Kioko Mwoko was one of the successful bidders for one of the auctioned motor vehicles. He sued the Respondent after being ordered to return the vehicle to the Warehouse following the purchase. Eventually, 19.After the purchase, Mr Kioko returned to the Respondent’s offices, complaining that he had been unable to register the motor vehicle. After discussions with various offices, it was agreed that he would return the vehicle to the Warehouse and that the purchase price would be refunded. He completed the refund forms. 20.When he was interdicted, he was logged off the Respondent’s system to such an extent that, when he gave his statement to the Investigators, he did not have access to the necessary documents. 21.The recommendation by the Acting Commissioner would not just be ignored. She was more conversant with the customs processes than anyone else. 22.He asserted that the vehicle in question had overstayed at the Warehouse. After he prepared the initial list, it was normally the Manager’s duty to pursue KEBS processes. 23.The Claimant stated that he holds a Master's degree in Customs. He obtained the degree under the sponsorship of the German Government. Very few officers within the Respondent’s workforce hold such a qualification. This is why he boldly asserts that he had every prospect of climbing the career ladder. Respondent’s case 24.The Respondent’s witness, Jackson Kimeu [Rw1], an Assistant Manager in the Respondent’s Human Resources Division, gave evidence on the Respondent’s behalf. The witnesses stated that the Claimant joined the Respondent on 3rd December 2004. 25.He stated that the Claimant was placed on interdiction on 3rd February 2020 to facilitate investigations into alleged breaches of the Respondent’s Code of Conduct, in accordance with Clause 7.1 of the Kenya Revenue Authority Code of Conduct. 26.The witness testified that investigations were conducted by the Intelligence and Strategic Operations Department and that an investigation report dated 26th August 2020 recommended disciplinary action against the Claimant for various malpractices. 27.According to the witness, the Claimant’s employment was terminated on 23rd July 2021 for negligence of duty and gross misconduct. He stated that the termination was carried out in compliance with the Employment Act, 2007 and the Respondent’s Code of Conduct, particularly the provisions relating to willful neglect of duty, failure to exercise proper judgment, negligence resulting in loss or damage, and failure to discharge duties satisfactorily. 28.The witness further stated that the Claimant was accused of negligently including a Volkswagen Passat bearing Chassis Number WVWZZZ3CZ8PO83681 in an auction list without obtaining the required clearance from the Kenya Bureau of Standards (KEBS). He testified that after interdiction, the Claimant was issued a show-cause letter dated 20th April 2021, which he responded to on 22nd April 2021. The Claimant was thereafter invited to appear before a disciplinary panel on 20th May 2021 by a letter dated 11th May 2021. He attended the hearing and made oral representations. 29.The witness testified that, despite the Claimant’s written and oral explanations, the disciplinary panel found him culpable of gross misconduct and resolved to terminate his employment. He stated that the Claimant was informed of his right of appeal and lodged an appeal dated 30th July 2021, which was reviewed and dismissed on the basis that no new grounds had been raised to warrant interference with the decision. The dismissal of the appeal was communicated on 10th August 2021. 30.The witness further testified that the Claimant lodged a second appeal on 2nd September 2021 and a third appeal on 22nd March 2023. According to the witness, both appeals were dismissed because the Respondent’s Code of Conduct permits only one appeal. He stated that the Respondent communicated the dismissal of the subsequent appeals in letters dated 27th October 2021 and 16th August 2023, respectively. 31.The witness maintained that the Claimant’s dismissal was lawful, fair, and procedurally proper, and that the Respondent complied with the principles of natural justice by according the Claimant adequate opportunity to present his case before termination. 32.Cross-examined by Counsel for the Claimant, the witness stated that he entered the Respondent’s employment on 21st August 2021. The Claimant had already separated. At the time of separation, the Claimant was an Assistant Manager. 33.The witness admitted that the Respondent did not present the Minutes of the disciplinary hearing before this Court. 34.The witness further testified that the termination letter did set out the reasons for the Claimant’s employment was terminated. The termination was on the grounds that he was in negligence of duty, including a motor vehicle that did not have a KEBS report in an auction list. 35.At the time of preparing the list, he was serving as a Warehouse Keeper. There was a Warehouse Manager. The Claimant’s decisions were not final. His decisions were not binding on the Manager. 36.The witness further testified that Pamela Hagho was the Acting Commissioner Customs when she wrote the letter dated 13th November 2020. She recommended that the disciplinary action against the Claimant be dropped. 37.The Auction list was the responsibility of the Warehouse Manager. The events, the subject matter of the auction, did not fall within the Claimant's mandate. 38.In his statement dated 6th July 2020, Mr Paul Boiyo stated that the role of the Customs Warehouse Manager was to inter alia coordinate the lotting processes of overstay cargo for submission of the lotting list to Headquarters for Gazettement. This aligns with the position that was taken by the Acting Commissioner Customs, and the stipulations of the code. 39.Referring to Mr Boiyo’s statement, the witness stated that, per the statement, it was the responsibility of the Warehouse Manager to review the final auction list by the Warehouse keeper. The Warehouse Keeper’s decision was not final. 40.The Warehouse Manager retired from the Respondent’s employment. No disciplinary action was ever taken against him. 41.The Head of Department, C ustoms owns the auction process. According to the Acting Commissioner, it was not the Claimant’s role to review the final list from KEBS. 42.In answer to this Court’s question, the witness stated that after investigations, the file could be sent to the Department for comments. Once the Intelligence Strategic Operations receives the comments, they compile a report giving their findings either that the matter is closed or that it proceeds to a disciplinary hearing. The panel has to pronounce itself on the recommendations by the Department. 43.The Respondent’s 2nd witness [RW2], Dominic Mwebia, stated in his witness statement that he is an investigator within the Intelligence and Strategic Operations Department of the Respondent and that he participated in investigations concerning the Claimant, Collins Bosire. He stated that the investigations were triggered by complaints from one Mr. Kioko Muoka, who had purchased a Volkswagen Passat motor vehicle bearing Chassis Number WVWZZZ3CZ8P083681 for Kshs 1,100,000/= during a public auction held at Kilindini Customs Warehouse on 21st June 2016. 44.The witness testified that the motor vehicle had not been inspected or cleared by the Kenya Bureau of Standards (KEBS) before being auctioned. As a result, KEBS declined to issue a certificate of roadworthiness, making it impossible for Mr. Kioko Muoka to register the vehicle with the National Transport and Safety Authority (NTSA). 45.He further stated that following investigations, a report dated 26th August 2020 was forwarded to the Respondent’s Human Resources Department recommending disciplinary action against the Claimant for several alleged malpractices. According to the witness, the investigations established that the Claimant had irregularly included the Volkswagen Passat motor vehicle in the auction list without obtaining KEBS approval, contrary to Section 6.2 of the Kilindini Customs Warehouse Procedure Manual. 46.The witness further testified that while preparing the final auction list, the Claimant noted that the subject vehicle was missing from the KEBS report issued on 20th June 2020, but nonetheless proceeded to include the vehicle in the auction list despite allegedly knowing that motor vehicles could not be auctioned without prior KEBS inspection and approval. 47.According to the witness, the Claimant’s failure to follow the required auction procedures resulted in the sale of the motor vehicle to Mr Kioko Muoka, who later instituted legal proceedings against the Respondent seeking a refund and compensation. 48.Cross-examined by Counsel for the Claimant, the witness testified that during the time of interdiction, the Claimant would not access his emails. 49.The witness admitted that the Procedure manual that the Respondent has presented before this court has not been approved. However, during the investigation process, he had the approved manual. 50.He further stated that in the course of the investigations, he interviewed Mr Boiyo. According to Mr Boiyo, the reviews were not the responsibility of the Claimant but that of the Warehouse Manager. 51.The witness further testified that, indeed, the Commissioner Customs gave a recommendation. She stated that the final auction list is reviewed by the Warehouse manager to ensure that the goods listed therein have been cleared by KEBS and valued by an appointed valuer before being offered for auction. She recommended that the disciplinary process against the Claimant be dropped because the accuracy of the auction list prior to the offer for auction was not the responsibility of the Warehouse Keeper. 52.During the hearing, the investigation report and the Commissioner's recommendation were considered. However, the Respondent did not place the Minutes of the Disciplinary process before the Court. 53.Questioned by the Court, the witness stated that the Unapproved Manual presented to the Court was being amended in 2015, indicating that an earlier version existed. The Commissioner did not specifically mention the unapproved Manual in her letter. Analysis and determination 54.I have carefully considered the pleadings, evidence on record, and the parties’ respective submissions, and the following issues emerge for determination: -a.Whether the termination of the Claimant’s employment was procedurally and substantively fair.b.Whether the Claimant is entitled to the reliefs sought. 55.In a dispute regarding the termination of an employee’s employment or wrongful dismissal, Section 47[5] of the Employment Act, 2007 places different legal burdens on the employee and the employer. 56.The provision is designed so that the employee bears the initial burden, and only after the employee has discharged it does the burden shift to the employer to prove a couple of matters; the reason(s) for the termination or dismissal [Section 43 of the Act]; that the reason(s) were valid and fair [Section 45]; and that the statutory edicts of procedural fairness were adhered to [Sections 45[2] and 41]. To discharge his or her burden, the employee is required to establish a prima facie case that unfair termination or wrongful dismissal occurred. See also Galgalo Jarso Jillo vs Agricultural Finance Corporation [2021] eKLR, and Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR. 57.It is my view, therefore, that where an employee fails to discharge the initial burden, their case shall collapse at that hurdle. As a result, the employer would not be called upon to discharge the legal burdens mentioned above. 58.I have carefully considered the material placed before this Court and hesitate not to conclude that the Claimant established prima facie that the dismissal was unfair, and more particularly that it lacked substantive fairness. I have carefully considered the Claimant’s assertions that he was accused of negligent performance of his duty and dismissed on that account, yet the matters regarding the complaint did not fall within his responsibilities; the evidence of the Respondent’s two witnesses, particularly on this point; the unanswered question of whether or not the Commissioner of Customs’ recommendation mentioned hereinabove was considered, and if it wasn’t, why not; and the effect of the Respondent’s failure to place in evidence the Minutes of the disciplinary proceedings, and hold that a prima facie case for wrongful dismissal has been established. 59.Section 41 of the Employment Act sets out a mandatory procedure that any employer contemplating the termination of an employee’s employment or a summary dismissal must follow before making the decision to terminate or dismiss. The process contemplated under this provision comprises three ingredients: the notification ingredient, under which the employer shall inform the employee of their intention to take disciplinary action in the form of termination or summary dismissal, and of the reasons, the basis therefor; the hearing ingredient, under which the employer shall afford the employee affected an adequate opportunity to defend themselves against the accusation, while accompanied by a colleague of choice or, if the employee is a member of a trade union, a trade union representative; and the consideration ingredient-the employer must consider the representations made before making a final decision on the matter. See Kenfreight [E.A] Limited v Benson K. Nguti [2016] eKLR. 60.It is important to note that the architecture of the provision regarding the requirements is conjunctive. As such, the absence of any of the aforementioned ingredients renders termination or summary dismissal procedurally unfair by law. Further, the duty lies with the employer to prove the presence of the ingredients in the process undertaken leading to the termination or dismissal. 61.When one carefully considers the material before this Court, the conclusion that the first two ingredients were established is not difficult to reach. The Claimant was served with a show-cause letter and responded; he was subsequently invited to a disciplinary hearing, which he attended. 62.The requirement that an employer must consider the representations made by an employee at a disciplinary hearing entails more than a mere ritualistic hearing of the employee. It demands a careful, logical, and critical evaluation of the entirety of the material placed before the disciplinary panel, including the employee’s explanations, responses, and any exculpatory evidence tendered during the hearing. The process must demonstrate that the panel genuinely applied its mind to all relevant matters before deciding to terminate employment. 63.Accordingly, where the employee contends, as was the case in this matter, that the disciplinary panel failed to consider material matters raised during the hearing, the minutes or record of the proceedings becomes significant. Without such a record, the Court is left without any objective basis to ascertain whether the employee’s representations and all material matters were indeed considered. In such circumstances, the court would, as I hereby draw an adverse inference against the employer and conclude that the termination or dismissal process fell short of the procedural fairness contemplated under the employment law. 64.It must be said here that, in his evidence under cross-examination, in answer to the question why the minutes of the disciplinary proceedings were not presented before the Court as evidence, Rw1 gave the most absurd answer, “the Claimant did not ask for them”. As if all the tens of pages of documents that the Respondent presented before the Court had been asked for before they were so presented. 65.Counsel for the Respondent extensively submitted on the issue of non-production of minutes, contending that the Claimant should not be allowed to rely on it, as he did not plead it. This submission is not persuasive at all. First, pleadings should not contain evidence. Second, the Claimant explicitly pleaded a lack of procedural fairness in the process leading to the Respondent’s decision to dismiss him. Any person looking at the totality of his case as pleaded and contained in his witness statement, and aware of the last ingredient of procedural fairness, would definitely tender the minutes in evidence. 66.The Claimant boldly asserted that his explanations and exonerating evidence, including the Commissioner of Customs' recommendation, Mr Boiyo's statement and the relevant manual, were not considered. Without the minutes, I can only conclude that the Respondent failed to establish the last ingredient. I find that the dismissal was unfair on this basis. 67.I now turn to consider whether the dismissal was substantively fair. As indicated hereinabove, Section 43 of the Employment Act, 2007, in disputes concerning the termination of an employee’s employment or summary dismissal of an employee, to prove the reasons for the termination or dismissal. In default, the termination or dismissal shall be deemed unfair. 68.However, it is important to note that it is not enough for the employer to establish the reason for the termination or dismissal; the law further binds them to prove that the reason was valid and fair under Section 45 of the Employment Act. 69.Counsel for the Respondent submitted that the reason or reasons for termination or dismissal are the matters that the employer, at the time of termination of the contract, genuinely believed to exist, and which caused the employer to terminate the services of the employee. Counsel cites several decisions, including Osire v Mega Pack [K]Limited [2003] KEELRC 1504[KLR], and Ondari v NHIF [2025] KECA 687 [KRL]. 70.That is the correct interpretation of Section 43(2) of the Employment Act; however, this does not imply that the court would merely accept a reason simply because the employer has said that they believed it existed, as one that justifiably informed the decision and conclude that the termination or summary dismissal was fair. The Constitution, particularly Articles 50 [right to fair hearing] and 47 [right to fair administrative action], the Fair Administrative Actions Act, and the Employment Act itself under Section 45, are not intended to accommodate such a perspective. The Court must consider the material before it in a comprehensive and holistic manner. 71.I heard the Claimant as contending that his role was limited to the preparation of the initial list for overstay cargo, and that the final list for KEBS certification/clearances and auction purposes was the responsibility of the Warehouse Manager and the Respondent’s Auctioneers [where applicable]. That, as such, he would not be fairly accused of negligence in the discharge of his duties, yet he did not perform or undertake the act complained of. 72.I have carefully considered the evidence of the Respondent’s witnesses and more particularly that under cross-examination. They largely support the Claimant’s position. The Statement by Mr Boiyio, the officer in charge of Customs Warehouse Kilindinui, that he gave RW2, too. 73.On 13th November 2020, the Ag. Commissioner Customs &Border Control wrote an Internal Memo, addressed to the Commissioner Intelligence & Strategic Operations, that read in part;“……………………The Warehouse procedure requires that the final auction list is reviewed by the Warehouse Manager to ensure that the goods listed therein have been cleared by KEBS and valued by the appointed valuer before being offered for auction.RecommendationWe therefore recommend that disciplinary action against Mr Collins Bosire, P/No. 6362, be dropped, given that the accuracy of the auction list prior to offer is the responsibility of the Warehouse Manager." 74.The Commissioner was not a peripheral actor in the Respondent’s disciplinary architecture. She was the officer directly seized of and responsible for customs operations within which the allegations against the Claimant arose. Her considered recommendation that the disciplinary process against the Claimant be discontinued, on the clear basis that the matters complained of did not fall within his mandate or responsibility, was therefore a material and weighty matter that could not lawfully or reasonably be brushed aside. 75.A fair and reasonable employer, acting objectively and in good faith, would have accorded serious regard to such an exculpatory recommendation from the very officer charged with oversight of the relevant operational sphere. To proceed with disciplinary action in complete disregard of that recommendation, and without demonstrating any rational basis for departing from it, rendered the process arbitrary, predetermined, and manifestly unfair. 76.The Respondent’s conduct, in my view, betrayed an apparent determination to sanction the Claimant irrespective of the operational realities placed before it by its senior officers. In those circumstances, the dismissal cannot be said to have been founded on a valid and fair reason as contemplated under the law. On the claim for discrimination, the Claimant alleges that the disciplinary action was motivated by ethnicity and regional considerations and that other officers involved in the auction process were not disciplined. However, beyond the bare allegations, no evidence was tendered to demonstrate differential treatment based on a prohibited ground under Article 27 of the Constitution or the Employment Act. 77.In the upshot, I hold that the dismissal was both procedurally and substantively unfair. 78.In Gichuru v Package Insurance Brokers Ltd (Petition 36 of 2019) [2021] KESC 12 (KLR), the Supreme Court emphasised that although an employer bears the burden of disproving allegations of discrimination under Section 5(7) of the Employment Act, the employee must first place sufficient material before the court to establish a prima facie case of discrimination, after which the evidential burden shifts to the employer. The Claimant herein failed to place before the court evidence capable of demonstrating discrimination or the selective application of disciplinary measures based on ethnicity or region. Accordingly, the claim for discrimination fails. I decline to grant him the general damages sought. 79.Section 49 of the Employment Act confers on the courts the power to award an employee who has successfully challenged their employer's decision to terminate their employment unlawfully a compensatory award for unfair termination. However, it is essential to note that this power is discretionary and is exercised according to the circumstances of each case. 80.I have carefully considered the circumstances of the Claimant's dismissal from employment, including that he was dismissed notwithstanding the exculpatory evidence in his favour, which was available to the Respondent; his length of service; his work history before the dismissal; and his expectation that he was to scale the career ladder to higher ranks within the Respondent Organisation and that he was to work until retirement. I hold that he is entitled to the compensatory award, to the extent of twelve months' gross salary. 81.The claim for loss of future earnings, amounting to Kshs 148,200,000, is untenable. Claims for anticipatory salary or future salary earnings lack a statutory foundation under the Employment Act. Contracts of employment are by their nature terminable, and there is no guarantee that an employee will remain in employment until retirement age. This is what the Supreme Court of Kenya recently held in the case of Ngokonyo & 2 others v Telkom Kenya Limited [2025] KESC 75 [KLR]. 82.In the upshot, Judgment is hereby entered for the Claimant in the following terms;a.A declaration that his dismissal from employment was both procedurally and substantively unfair.b.Compensation for unfair and wrongful dismissal, twelve months’ gross salary, KShs. 3,000,000.c.Costs of this suit.d.Interest at Court rates on the awarded amount from the date of this judgment till full payment. READ SIGNED AND DELIVERED THIS 28TH DAY OF MAY 2026.OCHARO KEBIRAJUDGE