Richard Wainaina Gichohi v Samuja Quality Wines & Spirit t/a Sheraton Archade Club & another [2013] KEELRC 672 (KLR)
The bottom line
#Kenya's Industrial Court upheld a barman's summary dismissal for running a competing pub and stock theft, ruling he was owed no notice or service pay.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of summary dismissal under section 44 of the Employment Act, 2007
The summary dismissal was justified: the claimant was repeatedly warned about the conflict of interest arising from operating a competing pub and about theft of stock, and section 44(4)(g) permits summary dismissal for criminal offences against the employer's property
The court set out sections 44(2), (3) and (4) and section 41 of the Employment Act. It found the claimant had been served warnings dated 6th July 2009, 28th November 2009, 28th November 2011 and 6th February 2012 concerning cash deficits, conflict of interest and contraband stock. His admission that he frequented his adjacent Mooks Pub off duty, and his purchase of that business soon after termination, justified the respondent's suspicions. The dismissal letter expressly cited the warnings, theft and conflict of interest.
Whether the claimant received the summary dismissal letter and thus notice of the grounds
By refusing to accept the letter he disagreed with, the claimant in effect read and understood the grounds of dismissal and challenged them in later proceedings
The court observed that the claimant did not contest the contents of the summary dismissal letter in any material way; his complaint was only that he refused to take the letter because he disagreed with it. The court treated this as an acknowledgement that he read and understood the letter, and that his subsequent recourse was to the labour office and then the court.
Entitlement to terminal dues after summary dismissal
Notice pay and service pay do not arise on summary dismissal for fundamental breach; leave allowance fails on the evidence; housing allowance fails for lack of particulars
Having upheld the summary dismissal under section 44, the court declined notice pay and service pay as incompatible with dismissal for gross misconduct. The supervisor's uncontradicted evidence established that leave days had been granted. The housing allowance claim covered only three years with no explanation of its basis, and the court refused to speculate on unparticularised claims.
Legal principles established
#- Where the reasons for removal are not proved to amount to gross misconduct, section 41 of the Employment Act applies and the employee is entitled to notice and hearing; disputes of summary dismissal are always tested against section 41
- Employers should follow the due process of notification and hearing under section 41 even where gross misconduct is alleged, to avoid a finding of unfair termination
- Under section 43 of the Employment Act the burden is on the employer to prove the reasons for termination amounted to gross misconduct
- Running a competing private business to the detriment of the employer amounts to breach of the employment contract; the employee should resign rather than continue both
Court orders
#- 1.The claim is dismissed with costs to the respondents
- 2.Claims for notice pay and service pay declined on the basis of summary dismissal for gross misconduct
- 3.Claim for leave allowance declined, leave days having been granted
- 4.Claim for housing allowance declined as unsupported by particulars
- Jurisdiction invoked
- Employment and labour relations jurisdiction over a claim for unlawful termination and terminal dues (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ochieng v Lavingtone Hotel Limited t/a The Social House (Cause E521 of 2023) [2025] KEELRC 2498 (KLR)[2025] KEELRC 2498 (KLR)19 Sept 2025
Cite this brief
#Cite this brief
Caselaw, "Richard Wainaina Gichohi v Samuja Quality Wines & Spirit t/a Sheraton Archade Club & another [2013] KEELRC 672 (KLR)", Case Analysis (2013). Cause No. 1278 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/672/eng@2013-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.