Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedCause No. 367 of 2015· [2019] KEELRC 1919 (KLR)

Anthony Nyaberi Moturi v Gilani’s Supermarket Limited [2019] KEELRC 1919 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
21 January 2019
1,749 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kenyan court found a dismissal procedurally unfair but awarded no compensation because the employee had a documented record of poor performance and warnings.

What this practically means

#

Executive summary

#
The claimant, employed by the respondent from 1998 (the respondent asserted employment commenced in 2012), sued for payment for work on public holidays, leave days, salary for days worked in January 2013, compensation, and costs. His case was that he was underpaid, made to work on public holidays without pay, denied leave, and that after a workplace injury on 6th December 2011 when he was hit by a trolley, he was dismissed on 13th January 2013 for poor performance without a hearing. The respondent denied underpayment and the workplace injury, asserting a history of warnings for laxity, that work records showed the claimant absent on public holidays, that the medical report pointed to a road traffic accident, and that the claimant had already been paid damages in a work injury suit (CMCC No. 581 of 2013). The court found as an admitted fact that the claimant was a poor performer, and accepted that he was injured at work and suffered a disability, entitling him to reasonable accommodation under Article 54 of the Constitution and the Persons with Disabilities Act, 2003 — but held this duty mutual and the claimant had not sought accommodation. The respondent's failure to conduct a hearing under section 41(1) of the Employment Act rendered the termination unfair, yet applying section 45(5) the court declined to award compensation given the claimant's poor record and prior warnings. The public holiday claim failed on the signed work records; leave days and unpaid wages were left to be computed at the shop floor upon clearance. The claims were found without merit and each party was ordered to bear its own costs.

Key legal issues

#
01

Procedural fairness in termination for poor performance

Holding

The failure to conduct a hearing in accordance with section 41(1) of the Employment Act rendered the termination unfair, despite the substantive grounds for dismissal

Reasoning

The court accepted the claimant was a poor performer with prior warning letters, and that notice was issued under the contract and section 35. However, section 41(1) imposes a mandatory hearing before termination for poor performance, in the presence of the union. The respondent's non-compliance with this mandatory provision led to a finding of unfair termination.

p. 2
02

Reasonable accommodation for employees with disabilities

Holding

The duty of reasonable accommodation under Article 54 of the Constitution and the Persons with Disabilities Act, 2003 is mutual; the employee must alert the employer to the need for accommodation

Reasoning

The medical report indicating a need for lighter duties was obtained on 11th June 2013, months after the injury, and appeared intended to support the work injury claim rather than to seek accommodation. Because the claimant never brought the need for accommodation to the employer's attention, the employer could not be held solely liable for the consequences of the injury and poor performance.

p. 2
03

Compensation for unfair termination under section 45(5)

Holding

No compensation awarded; the court exercised its discretion not to award compensation considering the claimant's conduct, capability, prior warnings and the offer of terminal dues

Reasoning

Applying section 45(5), the court weighed the claimant's litany of misconduct and laxity before the injury, the valid contractual notice, and the respondent's offer of terminal dues which the claimant refused to collect. These factors justified invoking the discretion not to award any compensation despite the finding of unfairness.

p. 3
04

Claims for public holiday work and leave days

Holding

The public holiday claim failed on the employer's work records; leave and unpaid wages were left to be computed at the shop floor upon clearance

Reasoning

The respondent's work sheets, signed by the claimant, showed he was not at work on public holidays, and under section 10(6) of the Employment Act such records were accepted as true. Leave days due as at 8th January 2013 and salary for days worked had been offered through letters and should be settled upon clearance, a practice the court endorsed as good practice.

p. 3

Legal principles established

#
  • Termination on grounds of poor performance under section 41(1) of the Employment Act requires the employer to give the employee a hearing, with union representation where applicable, and to support the poor-performing employee
  • An employee with a disability arising from a workplace injury is entitled to reasonable accommodation at the workplace under Article 54 of the Constitution read with the Persons with Disabilities Act, 2003, but the duty is mutual and the employee must bring the need for accommodation to the employer's attention

Court orders

#
  1. 1.The claims made are found without merit
  2. 2.Leave days and unpaid wages due to the claimant shall be computed at the shop floor and paid upon clearance
  3. 3.Each party to bear own costs

Authorities

#

Legislation

  • Employment Act, 2007section 41(1)
  • Employment Act, 2007section 45(5)
  • Employment Act, 2007section 35
  • Employment Act, 2007section 10(6)
  • Employment Act, 2007section 51
  • Constitution of Kenya, 2010Article 54
  • Persons with Disabilities Act, 2003not specified
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; Employment and Labour Relations Court Act)

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.

Cite this brief

#

Cite this brief

Caselaw, "Anthony Nyaberi Moturi v Gilani’s Supermarket Limited [2019] KEELRC 1919 (KLR)", Case Analysis (2019). Cause No. 367 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1919/eng@2019-01-21

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