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ELRCDismissedNot stated in judgment (Memorandum of Claim dated 4th January, 2021)· [2023] KEELRC 3119 (KLR)

Sang v Majjid Al Tuttaim (Cause E059 of 2021) [2023] KEELRC 3119 (KLR)

Employment and Labour Relations Court
22 November 2023
DMD. K. Njagi Marete
1,077 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court upheld a supermarket driver's dismissal after he followed proper disciplinary procedure and proved valid grounds — documentation of the process won the case.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent on 7th March, 2017 as a Stocker-Delicatessen Driver on a gross salary of Ksh.24,500, claimed unpaid leave for three years, payment for breach of contract, one month's salary in lieu of notice and payment for service, totalling Ksh.413,414, plus costs and interest, following termination of his employment on 8th April, 2020 after live cockroaches were found in packed food on display. He alleged a sham, unprocedural and pre-determined disciplinary process. The Respondent denied the claim, asserting that the Claimant was responsible for packaging food, breached the Hygiene and Food Safety Policy, was issued a Notice to Show Cause, replied to it, and was subjected to a disciplinary hearing accompanied by two employee representatives, after which he was dismissed; it further asserted he had been paid Ksh.531,498 as full and final payment under the subsisting CBA. The court framed three issues: lawfulness of the termination, entitlement to relief, and costs. Applying section 47(5) of the Employment Act, 2007, and noting compliance with section 41(1) and (2), the court found the termination lawful, holding the Claimant could not complain of lack of valid reasons or procedure. Consequently, the Claimant was held disentitled to all relief sought. The judgment was delivered on 22nd November, 2023 by D. K. Njagi Marete J. No express costs order appears in the final orders despite costs having been framed as an issue.

Key legal issues

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01

Whether the termination of the Claimant's employment was wrongful, unfair and unlawful

Holding

The termination was lawful; the employer had valid grounds (live cockroaches in food the Claimant packed) and followed fair procedure under section 41(1) and (2).

Reasoning

The court applied section 47(5) of the Employment Act, which places the burden of proving unfair termination on the employee and the burden of justifying grounds on the employer. The Respondent showed a Notice to Show Cause, a reply, a disciplinary hearing attended with two employee representatives, and the Claimant's admission of his role in packing sausages. The Claimant's assertion that he was not responsible for fumigation did not displace the employer's grounds; his case failed for lack of substantiation.

p. 3
02

Whether the Claimant is entitled to the relief sought

Holding

No; entitlement to relief fell away with the finding of lawful termination.

Reasoning

The court reasoned that the heads of relief (service pay/gratuity, notice pay, unpaid leave and compensation for breach of contract) were all premised on a finding of unfair or wrongful termination. Having found the termination lawful, the Claimant was disentitled to all the reliefs claimed in the Memorandum of Claim dated 4th January, 2021.

p. 3

Legal principles established

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  • Where an employer takes an employee through the procedure under section 41(1) and (2) of the Employment Act and establishes valid grounds for termination, a claim of unfair termination fails.

Court orders

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  1. 1.A finding of lawful termination of employment; the claim is disallowed and the Claimant is disentitled to the relief sought

Authorities

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Legislation

  • Employment Act, 2007section 47(5)
  • Employment Act, 2007section 41(1) and (2)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)

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, "Sang v Majjid Al Tuttaim (Cause E059 of 2021) [2023] KEELRC 3119 (KLR)", Case Analysis (2023). Not stated in judgment (Memorandum of Claim dated 4th January, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3119/eng@2023-11-22

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