Kenya Union of Commercial Food and Allied Workers v Sanpac Africa Limited [2016] KEELRC 1505 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the respondent had a valid reason to terminate the grievants' employment
No valid reason existed; the respondent failed to prove any nexus between the grievants and the alleged theft
The stolen items were large, stored under a manager's key, and the premises were guarded 24 hours with mandatory gate passes signed by the manager. The respondent presented no evidence linking the junior employees to the theft; the allegations were pure conjecture. Under section 43 of the Employment Act the employer bears the burden of proving the reasons for termination, and having failed, the termination is deemed unfair under section 45.
Whether the termination followed a fair procedure
No; the grievants were never subjected to any internal disciplinary process
Neither grievant was asked to show cause, no charges were laid and no disciplinary hearing took place, violating section 41 of the Employment Act. The respondent instead relied on police investigations, and when the criminal matter did not proceed, the employees were simply refused re-entry to work without termination letters. The termination was therefore procedurally unfair as well as substantively unjustified.
Whether the grievants are entitled to the reliefs sought
Partially; compensation under section 49(1)(c) plus notice pay and severance pay were awarded, but reinstatement was refused and compensation was scaled below the 12-month maximum
The claimant discharged its burden under section 47(5) to show on a balance of probability that an unfair termination occurred. Considering the two years of service, the wrongful theft accusations, the arrest and prosecution that never materialised, absence of a hearing and loss of career prospects, the court awarded compensation equivalent to eight months' salary (having stated six months), plus notice pay and unpaid severance. Reinstatement was impractical given the baseless allegations.
Legal principles established
#- In any claim arising out of termination of a contract, the employer is required to prove the reason or reasons for the termination, failing which the termination is deemed unfair
- An employer must subject an employee to a disciplinary process, including notice to show cause and a hearing, before termination, per section 41 of the Employment Act
- An employee who is simply suspected of theft, with no evidence of any link to the loss, cannot lawfully be terminated; suspicion is not a valid reason
Court orders
#- 1.Compensation of six months' salary for unlawful and unfair termination (awarded as 8 months in the computation) to each grievant
- 2.Payment in lieu of notice: Kshs 15,664 to Bidad Kimani Njeri and Kshs 10,401 to Stephen Omondi Meda
- 3.Severance pay for two years: Kshs 20,406 to Bidad Kimani Njeri and Kshs 12,309 to Stephen Omondi Meda
- 4.Total awards: Kshs 161,382 (Bidad Kimani Njeri) and Kshs 105,918 (Stephen Omondi Meda)
- 5.Respondent to provide certificates of service to the grievants within 14 days from date of judgment
- 6.Awards to attract interest at court rates from date of filing suit till payment in full
- 7.Respondent to pay claimant's costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial Food and Allied Workers v Sanpac Africa Limited [2016] KEELRC 1505 (KLR)", Case Analysis (2016). Cause No. 1389 of 2013 (consolidated with Cause No. 1190 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1505/eng@2016-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.