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ELRCPartially AllowedCause No 267 of 2020· [2022] KEELRC 4131 (KLR)

Imbuga v Nairobi Bottlers Limited (Cause 267 of 2020) [2022] KEELRC 4131 (KLR)

Employment and Labour Relations Court
30 June 2022
8,887 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~36 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ordered Nairobi Bottlers to reinstate a dismissed director and pay him Ksh 5,865,000 because his firing was unfair and discriminatory.

What this practically means

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Executive summary

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The claimant, employed in 1999 and promoted to Operations Director on November 20, 2018, was terminated on April 30, 2020 on three charges: failure to enforce stock routines, failure to enforce Standard Operating Procedures, and failure to escalate risk losses, following a disciplinary hearing on April 16, 2020. He claimed unfair and unlawful termination contrary to sections 41, 43, 45 and 46 of the Employment Act and discrimination, seeking reinstatement as primary relief or, alternatively, monetary reliefs and damages. The respondent denied the claims, asserting a valid reason (loss of 7,155 cases valued at Ksh 2,820,105) and due process. The court found the charges lacked particulars, oscillated confusingly between negligence and poor performance, and that no loss was allocated to the claimant, who directed five levels of managers; individual employees responsible for the failures had themselves been disciplined. Termination was held substantively and procedurally unfair under sections 41, 43 and 45. The court also found discrimination: other employees facing similar allegations were not disciplined, and the respondent discharged no part of its section 5(7) burden. Reinstatement was ordered as the primary remedy without loss of benefits, with back salaries from May 1, 2020, and the claimant to resume on July 4, 2022. Damages for discriminatory treatment of Ksh 5,865,000 (six months' gross salary) were awarded, plus costs. The suit succeeded on the principal heads; the pleaded alternative monetary reliefs were not assessed given reinstatement.

Key legal issues

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01

Substantive justification for termination on grounds of negligence

Holding

No valid and fair reason was established; the charges lacked particulars, no loss was allocated to the claimant, and the negligence was not gross or persistent

Reasoning

The charges oscillated between negligence and poor performance without clarity. The Kenya Visit Report noted risks but no stock was lost. The respondent was well-structured with managers below the claimant responsible for stock routines; individual employees responsible for failures were themselves disciplined. No audit allocated any specific loss to the claimant, and the respondent's response comprised mere denials without particulars.

p. 12
02

Procedural fairness under section 41

Holding

Procedurally unfair; the report and charges lacked particulars of any lapse attributable to the claimant

Reasoning

Section 41 requires the employer to explain the reasons for contemplated termination and to hear and consider representations. The allegations in the show cause notice were based on a report not linked to any notice to show cause, without particulars of negligence attributable to the director personally, given the five levels of managers beneath him.

p. 12
03

Discrimination

Holding

The claimant was discriminated against contrary to article 27 of the Constitution read with section 5 of the Act

Reasoning

Other employees facing similar allegations (forgeries, delayed vendor payments, ghost workers, water treatment failures) were not disciplined, while the claimant was terminated. The respondent made no effort to rebut the claim despite the statutory burden in section 5(7). Expatriates were brought in to take over his role without the protections of section 5(2)-(4).

p. 14
04

Remedy of reinstatement

Holding

Reinstatement was justified and appropriate as the primary, specifically pleaded remedy

Reasoning

The claimant's substantive role of operations director remained intact notwithstanding interim deployments; the respondent had filled his position with an expatriate but the position itself could not fall away. Reinstatement without loss of benefits, with back salaries, was ordered to redress the procedural and substantive unfairness.

p. 15
05

Damages for discriminatory treatment

Holding

Six months' gross salary, Ksh 5,865,000, awarded

Reasoning

Guided by precedents awarding six months' salary and sums of Ksh 2,000,000 for discrimination, and given the claimant's gross salary of Ksh 977,500, six months' gross salary was found appropriate.

p. 16

Legal principles established

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  • Termination on account of negligence requires the negligence to be gross - either persistent negligence or a particularly serious omission
  • It is discriminatory to discipline one employee while another is let free when faced with similar allegations
  • The employer bears the burden of proving that discrimination did not take place as alleged
  • An employer must address matters of work performance directly and formally with the employee through the due process under section 41 before urging disciplinary action

Court orders

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  1. 1.A declaration that the employment was terminated unfairly and unlawfully
  2. 2.A declaration that the claimant was discriminated against by the respondent
  3. 3.An order of reinstatement of the claimant without loss of rank, position, benefits and back salaries from May 1, 2020 to date
  4. 4.The claimant to report to the managing director at his last place of work on July 4, 2022 at 8.30 hours for allocation of duties
  5. 5.Back salaries to be paid within 30 days, failing which they accrue interest until paid in full
  6. 6.Damages for discriminatory treatment awarded at Ksh 5,865,000
  7. 7.Costs of the suit to the claimant

Authorities

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Legislation

  • Employment Act, 2007sections 5, 41, 42(1), 43, 44(3), 44(4), 45, 46, 47(5), 49(1)(a), 49(1)(b), 49(1)(c), 49(3), 49(4)
  • Constitution of Kenyaarticle 27; article 47
  • Evidence Actsection 108

Cases cited (27)

  • Pravin Bowry v Ethics & Anti-corruption Commission
    ELRC Cause No 1168 of 2012
  • National Bank of Kenya v Anthony Njue John
    CA 117 of 2017
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Standard Group Limited v Jenny Luesby
    [2018] eKLR
  • CMC Aviation Limited v Mohammed Noor
    [2015] eKLR
  • Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited
    [2013] eKLR
  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
  • Mukoma v Cannon Assurance Limited
    Civil Appeal 366 of 2017 [2022] KECA 86 (KLR) (CIV)
  • Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others
    (2020) eKLR
  • Swalleh C. Kariuki & Another v Viloet Owiso Okuyu
    [2021] eKLR
  • Kenya Airways v Allied Workers Union Kenya & 3 others
    [2014] eKLR
  • Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation, Mediation and Arbitration & others
    (2006) 27 ILJ 1644 (LC)
  • Naumy Jemutai Kirui v Unilever Tea Kenya Limited
    [2020] eKLR
  • Professional Clean Care Limited v Danson Mwendwa Muthoka
    [2021] eKLR
  • Maghanga Newton Raphael v Panal Freighters Limited
    [2021] eKLR
  • Jane Wairimu Machira v Mugo Waweru and Associates
    [2012] eKLR
  • Joshua Kabaka v Tandu Alarms Systems Limited
    [2019] eKLR
  • Bahari Parents Academy v LBZ (Minor suing through his father and next friend) BNZ
    [2020] eKLR
  • Barclays Bank of Kenya Ltd & another v Gladys Muthoni & 20 others
    [2018] eKLR
  • Kenya Aviation Workers Union v Kenya Airports Authority
    Petition No E088 of 2021
  • Kenfreight (EA) Limited v Benson K Nguti
    [2019] eKLR
  • Alex Wainaina Mbugua v Kenya Airways Limited
    [2017] eKLR
  • Mediterranean Textile Mills (Pty) Ltd versus SACTWU and others
    [2012] 2 BLLR 142 (LAC)
  • Mary Chemweno Kiptui versus Kenya Pipeline Company Limited
    [2014] eKLR
  • Ol Pejeta Ranching Limited v David Wanjau Muhoro
    [2017] eKLR
  • Lucy Chepkemoi v Sotik Tea Company Limited
    [2022] eKLR
  • Simon Gitau Gichuru Package Insurance Brokers Ltd
    [2021] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 45, 46 and 49 invoked)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Imbuga v Nairobi Bottlers Limited (Cause 267 of 2020) [2022] KEELRC 4131 (KLR)", Case Analysis (2022). Cause No 267 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4131/eng@2022-06-30

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