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ELRCPartially AllowedNakuru Cause No. 162 of 2015· [2023] KEELRC 5 (KLR)

Anyoka v Gilanis Supermarket Limited (Cause 162 of 2015) [2023] KEELRC 5 (KLR)

Employment and Labour Relations Court
17 January 2023
3,353 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled Gilanis Limited unfairly fired its employee because it never gave him a hearing or proved the theft allegations against him.

What this practically means

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Executive summary

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The claimant, employed by the respondent in August 2010 as a turn boy, was summarily dismissed by letter dated August 26, 2013 on grounds of absconding duty for nine days and suspicion of stealing sugar. He claimed the dismissal was unfair and unlawful, seeking reinstatement or, alternatively, twelve months' salary as damages, August 2013 salary, one month's pay in lieu of notice and untaken leave. The respondent alleged the claimant, in cahoots with others, siphoned 73.8 kg of sugar from a consignment delivered from Trasmara to Kericho, that an eyewitness (Anthony Ngugi) implicated him, and that he absconded work after police interrogation. It also pleaded prior warnings for similar misconduct and a set-off of Kshs 34,424. The claimant explained that the consignment was weighed as a whole at Trasmara but re-weighed bag by bag at Nakuru, producing the discrepancies, and that he was released by police with instructions to stay off work pending investigations. The court found that the respondent admitted the claimant was never subjected to a disciplinary hearing, that there was no evidence of a show cause letter, and that the alleged eyewitness was never called, leaving the siphoning allegation a mere assertion. Relying on sections 41 and 45(2) of the Employment Act, the court held the dismissal unfair. It awarded one month's notice pay, August 2013 salary, eight months' salary as compensation and untaken leave, totalling Kshs 105,182 less statutory deductions, with costs and interest. Reinstatement and the full twelve months' compensation sought were not granted.

Key legal issues

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01

Procedural fairness - whether the claimant was heard before dismissal

Holding

The dismissal was procedurally unfair because the claimant was never served with a show cause letter nor invited to a disciplinary hearing, contrary to section 41 of the Employment Act

Reasoning

The respondent admitted the claimant was not subjected to any disciplinary hearing. The court found no evidence of a show cause letter or invitation to a hearing. Section 41 requires the employer to explain the reasons and hear the employee's representations before termination for misconduct. The respondent's assertion that the claimant refused a show cause letter was unsupported by evidence.

p. 6
02

Substantive fairness - validity of the reason for termination (siphoning of sugar)

Holding

The allegation of siphoning sugar remained a mere allegation as the claimed eyewitness was never called to testify, so the employer failed to prove a valid reason

Reasoning

The respondent alleged the claimant siphoned sugar in cahoots with others, witnessed by one Anthony Ngugi, yet the respondent's own witness admitted Anthony Ngige was not in the vehicle on the material day and there was no report evidencing the siphoning. The claimant explained the weight discrepancies arose because bags were weighed individually rather than as a consignment. The eyewitness was never called.

p. 6
03

Absconding duty for 9 days as a ground for dismissal

Holding

No hearing was conducted concerning the absenteeism, so this ground also could not sustain the dismissal

Reasoning

The claimant testified he was detained and released with instructions to keep off work and report daily to the police station until investigations concluded, after which he was cleared to resume. He was then dismissed for absconding. The court found the absenteeism was never made the subject of a hearing, so it could not justify the summary dismissal.

p. 6

Legal principles established

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  • An employer must, before terminating employment on grounds of misconduct, explain the reasons to the employee and hear and consider their representations, per section 41 of the Employment Act
  • A termination of employment is unfair if the employer fails to prove a valid and fair reason and fair procedure

Court orders

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  1. 1.One month's salary in lieu of notice of Kshs 9,562
  2. 2.August 2013 salary of Kshs 9,562
  3. 3.Eight months' salary as compensation for unfair termination, Kshs 76,496 (8 x 9,562)
  4. 4.Leave earned and not taken, Kshs 9,562
  5. 5.Total award of Kshs 105,182 less statutory deductions
  6. 6.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment Act 2007section 41
  • Employment Act 2007section 45(2)
  • Employment Act 2007section 44
  • Employment Act 2007section 43

Cases cited (4)

  • Kenfreight (EA) Limited v Benson K Nguti
    [2016] eKLR
  • Cooperative Bank of Kenya Limited v Banking Insurance and Finance Union
    [2017] eKLR
  • Judicial Service Commission v Gladys Boss Shollei and another
    [2014] eKLR
  • Lynus Kiplimo Too v Moi Teaching and Referral Hospital
    [2020] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair dismissal and terminal dues claims under the Employment Act 2007

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, "Anyoka v Gilanis Supermarket Limited (Cause 162 of 2015) [2023] KEELRC 5 (KLR)", Case Analysis (2023). Nakuru Cause No. 162 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/5/eng@2023-01-17

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