Kenya Union of Commercial Food and Allied Workers v Kenya Bankers Savings and Credit Society Limited [2015] KEELRC 294 (KLR)
The bottom line
#A Kenyan employer can fire for a genuine reason, but must still follow a fair process — skipping it made the dismissal unfair and costly.
What this practically means
#Executive summary
#Key legal issues
#Justifiable reason for termination
The respondent had a valid and justifiable reason to terminate the claimant's services based on the claimant's dishonesty, including an admitted attempt to encash a colleague's cheque and mishandling of an envelope containing money.
The claimant admitted in cross-examination that in 2006 he took a colleague's cheque and attempted to encash it, and that in 2005 he was warned about improper conduct. The court accepted the respondent's evidence that the claimant's record of dishonesty and unsatisfactory appraisals justified loss of trust, treating the attempted encashment as outright theft warranting summary dismissal.
Fair procedure under section 41(1) of the Employment Act
The dismissal was unfair on account of procedure only because there was no evidence that the claimant was given an explanation or an opportunity to make representations before dismissal.
The court restated the two-tier requirement: valid reason plus fair procedure. Section 41(1) requires an explanation in a language the employee understands and the right to make representations personally or through a representative. On perusal of the pleadings and documents, the court found no evidence or allegation that this procedure was followed prior to dismissing the claimant.
Remedy for procedurally unfair termination
Nominal damages of one month's salary were awarded as compensation for the procedural unfairness.
Because the substantive reason for dismissal was valid and only the procedure was flawed, the court limited the award to nominal damages equivalent to one month's salary rather than the maximum compensation available under the Employment Act for unfair termination.
Legal principles established
#- Dismissal or termination from employment is a two-tier process requiring both a valid and justifiable reason and a fair procedure.
- Section 41(1) of the Employment Act requires that an employee facing termination be given an explanation in a language he understands and be entitled to make representations personally or through a representative.
- Where a valid reason exists but fair procedure under section 41 was not followed, termination is unfair on procedure only and attracts nominal damages.
Court orders
#- 1.The Court finds the dismissal unfair on account of procedure only
- 2.The claimant is awarded nominal damages of one month's salary as compensation for unfair termination of services
- 3.No order on costs
- Jurisdiction invoked
- Original employment and labour relations jurisdiction under the Employment Act (section 41) - no specific constitutional provision stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial Food and Allied Workers v Kenya Bankers Savings and Credit Society Limited [2015] KEELRC 294 (KLR)", Case Analysis (2015). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/294/eng@2015-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.