Kamau v Nairobi Enterprises Limited (Cause 864 of 2019) [2023] KEELRC 1162 (KLR)
The bottom line
#A Kenyan court upheld the summary dismissal of an employee who secretly ran a competing business, ruling the dismissal both substantively justified and procedurally fair.
What this practically means
#Executive summary
#Key legal issues
#Substantive fairness - valid reason for dismissal
Valid reasons existed: the Claimant ran a competing business (Medquip Limited) dealing with the Respondent's clients, an obvious conflict of interest
The Claimant did not contest that he conducted a competing business; his defence that the Respondent's director authorised and financed the registration was unsupported by any independent evidence and disbelieved. Invoices from Medquip to MP Shah, a Respondent client, evidenced conflict of interest. Summary dismissal for gross misconduct under section 44(4) was therefore substantively justified.
Procedural fairness - hearing under section 41
No violation of procedural fairness; the format of a hearing depends on circumstances and need not be a formal session
Section 41 requires an employee be heard, but not necessarily through a formal sitting with witnesses. Fairness may be achieved through exchange of letters or active interaction between employer and employee on an issue the employee has not denied or rebutted. Since the reason for dismissal was clear to the Claimant and he admitted involvement, a formal hearing would have served no purpose.
Reliefs
None awarded; the claim having failed, the Claimant is disentitled to all reliefs
Having found the dismissal lawful and fair, the court dismissed the entire claim including compensation, terminal dues, notice pay, leave, tools, commission and pension claims, and awarded costs to the Respondent.
Legal principles established
#- The employer bears the burden of proving the reason for termination; failing which the termination is unfair
- A hearing before termination need not be a formal session; fairness may be satisfied by an exchange/interaction between employer and employee
- Employment is a position of trust; competing business by an employee justifies summary dismissal
Court orders
#- 1.The claim is dismissed with costs
- 2.It is so ordered
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 44, 45, 49 applied)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamau v Nairobi Enterprises Limited (Cause 864 of 2019) [2023] KEELRC 1162 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1162/eng@2023-05-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.