Thomas Kimeli Kimaiyo v Choppies Enterprises Kenya Limited [2020] KEELRC 1703 (KLR)
The bottom line
#A Kenyan court ruled that a supermarket unfairly fired a general worker over expired stock, because checking expiry dates was never reasonably part of his job.
What this practically means
#Executive summary
#Key legal issues
#Validity and fairness of the reason for summary dismissal
The summary dismissal was without justification; the reason that the claimant, a general labourer, failed to check expiry dates was neither valid nor fair. Employment terminated unfairly.
The claimant was a general labourer – off loader with no service contract allocating the specific duty of checking expiry dates. Such a duty is technical and requires speciality and supervision. The respondent also failed to follow the due process for seizure of expired goods with police or KEBS yet chose to sanction a general worker. The operational procedures allegedly breached were never outlined, and the claimant did not act alone.
Procedural fairness
While a show cause notice was issued and a hearing held in the presence of union officials, procedural fairness alone cannot save a dismissal without a valid and fair reason.
The court noted that summary dismissal under section 44 requires gross misconduct and that the employer is allowed short timelines for hearing under section 41(2). The claimant was issued a show cause notice and given a hearing. However, the court's finding turned on the absence of a valid and fair reason, holding that both substantive and procedural justice must be satisfied under sections 43 and 45.
Quantum of compensation
Compensation of 3 months' gross pay awarded, taking into account the claimant's disciplinary history under section 45(5).
The court was obligated under section 45(5) to consider the disciplinary history of the employee. There were unchallenged records of warnings, a show cause notice, a letter of apology and a warning letter. These justified reducing compensation to 3 months' gross pay rather than the 12 months sought.
Legal principles established
#- Checking expiry dates of goods in a store is a technical duty requiring speciality that cannot be assigned to a general worker without specific guidance and direction, and requiring such a duty of a general worker is irrational and unreasonable
- To establish negligence against an employee, the employer must prove a duty, breach of that duty and resulting damage, with a causal link to the employee's contractual responsibility
- There is a fundamental difference between negligence and poor work performance in employment law; the two cannot be applied in the same vein
Court orders
#- 1.Compensation awarded at Ksh.34,869
- 2.Notice pay Ksh.11,623
- 3.Leave pay Ksh.10,107
- 4.Wage for June, 2018 Ksh.10,460
- 5.Certificate of service shall issue in accordance with section 51 of the Employment Act, 2007
- 6.50% of due costs
- Jurisdiction invoked
- Employment and labour relations dispute under the Employment Act, 2007 (Sections 41, 43, 44, 45, 49, 51)
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.
- Radar Hardware Limited v Charles (Appeal E078 of 2023) [2024] KEELRC 393 (KLR)[2024] KEELRC 393 (KLR)15 Feb 2024applied
Cite this brief
#Cite this brief
Caselaw, "Thomas Kimeli Kimaiyo v Choppies Enterprises Kenya Limited [2020] KEELRC 1703 (KLR)", Case Analysis (2020). Cause No. 45 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1703/eng@2020-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.