SheilA Khaoya Akaliche v Artcaffe Coffee and Bakery Limited [2021] KEELRC 1813 (KLR)
The bottom line
#Kenya's Employment Court upheld a dismissal for taking leftover food, but rushed disciplinary timelines cost the employer one month's notice pay.
What this practically means
#Executive summary
#Key legal issues
#Validity of the reason for summary dismissal
The dismissal was substantively justified; the appellant knowingly breached a valid company leftover-food policy, engaging Section 44 of the Employment Act
The court re-evaluated the testimony of the appellant, RW1 and RW2. The appellant admitted taking leftover food contrary to a documented policy in place during her employment, and admitted her responsibility as manager for compliance. The trial magistrate's finding that the conduct amounted to dishonesty justifying termination under Section 44 could not be faulted. The appellant failed to show under Section 45(7) that the dismissal was unlawful.
Procedural fairness in the disciplinary process
Abridging the time to respond to the show cause letter and attend the hearing violated internal procedure but did not invalidate the dismissal; it warranted commutation to normal termination with one month's notice pay
The hearing was conducted by a single manager contrary to the requirement of a two-person committee, and the appellant was given only one hour. The court held this procedural transgression did not negate the validity of the finding based on the appellant's own admission. However, equity dictated converting the summary dismissal into a normal termination, attracting payment in lieu of notice under clause 18 of the contract.
Discrimination in remuneration
Claim failed; the appellant did not prove she and her comparator were of the same calibre doing equal work of equal value
Under Section 5(3) of the Employment Act, the burden lay on the appellant to establish comparability: timing of employment, qualifications, experience and equal work of equal value. Her evidence fell short on all these aspects, and the court accepted that she had freely contracted with the respondent on terms that were not unlawful or unfair.
Service pay and NSSF contributions
Claim for service pay failed; the appellant did not prove underpayment of NSSF contributions despite producing a statement showing Kshs.400 monthly contributions
The appellant produced an NSSF statement covering 2009–2019 showing monthly contributions of Kshs.400 by the respondent. The burden of proving underpayment lay on her and was not discharged. The trial court was therefore entitled to dismiss the service pay claim under Section 35(1) of the Employment Act.
Certificate of Service
The appellant was entitled to a Certificate of Service, an issue the trial magistrate failed to address
The trial magistrate did not address the claim for a certificate of service at all. On re-evaluation, the appellate court found the appellant entitled to it and directed the respondent to issue it within 30 days of the judgment, conditional on it not already having been granted.
Legal principles established
#- A first appellate court must re-evaluate and re-examine the evidence afresh, allowing for the fact that it did not hear or see the witnesses testify
- Procedural transgression by an employer in abridging internal disciplinary timelines does not necessarily vitiate a dismissal where the employee admits the misconduct, but may justify commutation of summary dismissal to normal termination with notice pay
- The burden of proving discrimination (equal work of equal value paid differently) lies squarely on the employee on a balance of probabilities
- The onus lies on the employee under Section 45(7) of the Employment Act to prove that a summary dismissal was unlawful
Court orders
#- 1.One month salary in lieu of notice in the sum of Kshs.75,000 awarded to the appellant
- 2.Kshs.35,000 awarded as payment in lieu of 14 days untaken leave
- 3.Respondent to grant the appellant a Certificate of Service within 30 days of the judgment
- 4.Interest at court rates from the date of filing suit till payment in full
- 5.Terminal benefits and Certificate of Service payable/granted only if not already done by the respondent
- 6.Each party to bear their own costs of the appeal and the trial below
- On appeal from
- Chief Magistrate's Court, Milimani, Nairobi
- Nairobi CMCC No. 1107 of 2019
- Jurisdiction invoked
- First appeal under the Employment Act, 2007 and Civil Procedure Act (appellate jurisdiction of the ELRC over the subordinate court suit)
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.
- Motrex Limited v Koech (Appeal E200 of 2024) [2025] KEELRC 785 (KLR)[2025] KEELRC 785 (KLR)6 Mar 2025
Cite this brief
#Cite this brief
Caselaw, "SheilA Khaoya Akaliche v Artcaffe Coffee and Bakery Limited [2021] KEELRC 1813 (KLR)", Case Analysis (2021). Appeal from Nairobi CMCC No. 1107 of 2019 (Memorandum of Appeal dated 26/5/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1813/eng@2021-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.