Imbuga v Nairobi Bottlers Limited (Cause 267 of 2020) [2022] KEELRC 4131 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Substantive justification for termination on grounds of negligence
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
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.
Procedural fairness under section 41
Procedurally unfair; the report and charges lacked particulars of any lapse attributable to the claimant
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.
Discrimination
The claimant was discriminated against contrary to article 27 of the Constitution read with section 5 of the Act
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).
Remedy of reinstatement
Reinstatement was justified and appropriate as the primary, specifically pleaded remedy
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.
Damages for discriminatory treatment
Six months' gross salary, Ksh 5,865,000, awarded
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.
Legal principles established
#- 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
#- 1.A declaration that the employment was terminated unfairly and unlawfully
- 2.A declaration that the claimant was discriminated against by the respondent
- 3.An order of reinstatement of the claimant without loss of rank, position, benefits and back salaries from May 1, 2020 to date
- 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.Back salaries to be paid within 30 days, failing which they accrue interest until paid in full
- 6.Damages for discriminatory treatment awarded at Ksh 5,865,000
- 7.Costs of the suit to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 45, 46 and 49 invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.