John Kimemia Gitau v Unilever Tea Kenya Limited [2013] KEELRC 661 (KLR)
The bottom line
#A Kenyan court awarded a dismissed Unilever Tea employee over Kshs 1.3 million because the company ignored his contractual right to appeal his dismissal.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of the salary variation (urban differential to rural supplement)
The variation was lawful and valid; a doubtful oral 'lobbying' agreement could not override the written standing terms.
The claimant's contract incorporated the respondent's handbook providing for urban differential in urban areas and the rural supplement with free housing upon deployment to Kericho. The deployment letter stated the claimant would remain on urban settlement for three months then convert. The court found the arrangements fair and agreed between the parties, so an oral promise could not validly vary the written policy.
Due process in the disciplinary action and termination
The termination was unlawful because the contractual appeal process was never considered and determined, and the claimant's exculpatory points were dismissed without particularized findings.
The claimant received a show cause letter, replied, and the termination decision followed. The handbook provided a right of appeal; the claimant appealed but the appeal was never decided. The court held that although the constitutional hearing requirement did not apply to a pre-2010 dismissal, breach of the agreed contractual appeal process rendered the termination unlawful, and the punishment was excessive and disproportionate.
Breach of the Code of Business Principles on conflict of interest
The claimant did not breach the code.
The respondent failed to cite the specific provisions and particulars of the alleged breach. The preliminary report showed tender applications were not registered as received, making it impossible to establish whether the claimant's relative and wife were bidders. Further, the tender was open to all staff, and where all decision makers are known interested parties there is no offensive conflict of interest.
Applicable law and limitation
The repealed Employment Act, Chapter 226 applied, and the suit was not time barred.
The parties agreed in submissions that the applicable law was the repealed Employment Act, Chapter 226, since the cause of action accrued before the Constitution of Kenya 2010 and the Employment Act 2007. The court so found and held the suit was not time barred under section 90 of the Employment Act, 2007.
Legal principles established
#- Where an employer's handbook provides an appeal process against disciplinary action, failure to consider and determine an employee's appeal renders the termination unlawful.
- An employer must give substantive and particularized findings when rejecting an employee's exculpatory points, and dismissal disproportionate to alleged misconduct is ungrounded.
- Where all persons involved in decision making are interested parties and that fact is known, there is no offensive conflict of interest.
Court orders
#- 1.Declaration that the termination of the claimant's employment by the respondent was unlawful.
- 2.Respondent to pay the claimant Kshs.1,307,301.60 by 1.9.2013, failing which interest to run from the date of judgment till full payment.
- 3.Respondent to deliver to the claimant the certificate of service and the clearance certificate by 1.09.2013.
- 4.Respondent to pay the costs of the case.
- Jurisdiction invoked
- Employment Act, Chapter 226 Laws of Kenya (repealed), as agreed by the parties as the applicable law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Kimemia Gitau v Unilever Tea Kenya Limited [2013] KEELRC 661 (KLR)", Case Analysis (2013). Cause No 50 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/661/eng@2013-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.