Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 362 of 2014· [2018] KEELRC 30 (KLR)

Francis Ngige Kimani v Gilanis Supermarket [2018] KEELRC 30 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
7 June 2018
MMM. Mbaru
2,602 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that dismissing a truck driver without a fair hearing was unfair, even amid theft allegations.

What this practically means

#

Executive summary

#
The claimant, a truck driver employed by the respondent from June/July 2012 at a monthly salary of Kshs.15,000, was summarily dismissed on 26th/27th August 2013 after a sugar consignment he delivered was found to be 73kgs short, prompting allegations of siphoning, police interrogation and his absence from work for 9 days at police direction. He claimed compensation, August salary, notice pay and leave dues totaling Kshs.235,500. The respondent defended the dismissal as gross misconduct under section 44 of the Employment Act for absconding duty, alleging the turn boy admitted siphoning sugar and that the claimant refused a show cause letter. The court found the respondent's weighing records materially at variance, relating to a different vehicle (KBV 930N) and driver, undermining the siphoning allegations and his arrest. However, the claimant was still required to report to his employer notwithstanding police directions. Applying sections 41, 44 and 45 of the Employment Act, and the authorities on mandatory fair procedure, the court held that summary dismissal was too harsh; a hearing and a warning or wage deduction would have sufficed. The termination was declared unfair for lack of fair procedure and substantive justification. The court awarded notice pay of one month (Kshs.15,000) and compensation of one month (Kshs.15,000), directed that other lawful dues be assessed upon clearance with the employer, and ordered each party to bear their own costs. The claim for 21 days' pay per year worked was refused for lack of legal basis.

Key legal issues

#
01

Whether summary dismissal for absence of 9 days was substantively and procedurally fair

Holding

Dismissal was unfair for lack of fair procedure and lack of substantiated reason

Reasoning

The respondent's records were at variance with the alleged siphoning, as the weighing records related to a different vehicle and driver, undermining the allegation. Absence of 9 days was directed by police during investigations; the sanction of summary dismissal was too harsh, and a section 41 hearing with a warning or wage deduction would have sufficed.

p. 4
02

What remedies flow from the unfair dismissal

Holding

One month notice pay and one month compensation awarded; other dues upon clearance

Reasoning

Section 45(5) requires the court to consider matters addressed by the employer during termination. Salary for August was payable as at termination date; notice pay was due as termination lacked justification; the 21 days per year worked claim lacked basis.

p. 4

Legal principles established

#
  • An employee facing summary dismissal must be taken through the mandatory process under section 41 of the Employment Act
  • Where an employer does not issue notice or hear the employee under section 41(2), it must demonstrate exceptional circumstances making compliance impossible

Court orders

#
  1. 1.Declaration that the claimant was unfairly dismissed
  2. 2.Award of notice pay of one month at Kshs.15,000.00
  3. 3.Award of compensation of one month at Kshs.15,000.00
  4. 4.All other lawful dues to be assessed upon clearance with the employer
  5. 5.Each party to bear own costs

Authorities

#

Legislation

  • Employment Act, 2007section 44
  • Employment Act, 2007section 44(4)
  • Employment Act, 2007section 41
  • Employment Act, 2007section 41(2)
  • Employment Act, 2007section 45
  • Employment Act, 2007section 45(5)

Cases cited (2)

  • Kenya Union of Commercial Food and Allied Workers versus Meru North Farmers Sacco Limited
    [2013] eKLR
  • CMC Aviation Limited versus Mohammed Noor
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 44, 45 applied)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Francis Ngige Kimani v Gilanis Supermarket [2018] KEELRC 30 (KLR)", Case Analysis (2018). Cause No. 362 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/30/eng@2018-06-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.