Anyoka v Gilanis Supermarket Limited (Cause 162 of 2015) [2023] KEELRC 5 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Procedural fairness - whether the claimant was heard before dismissal
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
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.
Substantive fairness - validity of the reason for termination (siphoning of sugar)
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
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.
Absconding duty for 9 days as a ground for dismissal
No hearing was conducted concerning the absenteeism, so this ground also could not sustain the dismissal
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.
Legal principles established
#- 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
#- 1.One month's salary in lieu of notice of Kshs 9,562
- 2.August 2013 salary of Kshs 9,562
- 3.Eight months' salary as compensation for unfair termination, Kshs 76,496 (8 x 9,562)
- 4.Leave earned and not taken, Kshs 9,562
- 5.Total award of Kshs 105,182 less statutory deductions
- 6.Respondent to pay costs of the suit plus interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair dismissal and terminal dues claims under the Employment Act 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.