Kamau v Kuku Food Kenya Limited (Cause 5 of 2020) [2022] KEELRC 1405 (KLR)
The bottom line
#A Kenyan employer paid over Kshs 900,000 after firing a manager for a minor offence that its own staff handbook said didn't warrant dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was substantively and procedurally unfair
Termination was unfair because the charge (deliberate/intentional abuse/damage of company property) did not match the facts (storing uncut chicken), and the misconduct fell under category 2 of the handbook which does not attract termination.
The court noted the show-cause and charge sheet alleged abuse of company property, but the admitted conduct was bringing foodstuffs from outside, a category 2 misconduct under clause 2.4.2 of the handbook not warranting dismissal. The mismatch between particulars and charge, and the employer's failure to apply its own handbook, rendered both the substance and process unfair.
Whether the Claimant was given adequate notice of the disciplinary hearing
The court observed the Claimant did not point out the handbook section providing for 5 days' notice, but the unfairness was nonetheless found on the charge/particulars mismatch.
Although the Claimant complained that she was served a day before the hearing contrary to clause 2.6.1 of the handbook, the court noted she did not identify the specific section providing for 5 days' notice. The court's unfairness finding rested principally on the mismatch between the charge and the facts.
Whether the Claimant was discriminated against compared to the Hurligham Branch manager
Not determined in the Claimant's favour; the court made no award for discrimination.
The Respondent's witness testified that the Hurligham manager had not committed a similar offence - the lettuce was bought from an unapproved vendor for customers' consumption, unlike the Claimant's chicken bought for personal use. The final orders made no finding or award on discrimination.
Legal principles established
#- Where the facts of an employee's misconduct do not tally with the offence charged, and the employer's own handbook classifies the misconduct as one not warranting dismissal, the termination is unfair.
Court orders
#- 1.Payment of 1 month salary in lieu of notice of Kshs. 101,236.44
- 2.Payment of 8 months' salary as compensation for unfair termination (8 x 101,236.44 = Kshs. 809,891.52), total Kshs. 911,128 less statutory deductions
- 3.Respondent to issue Claimant with a certificate of service
- 4.Respondent to pay costs of the suit plus interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment Act, 2007 (Sections 41, 45, 49, 51); first-instance ELRC claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamau v Kuku Food Kenya Limited (Cause 5 of 2020) [2022] KEELRC 1405 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1405/eng@2022-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.