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ELRCDismissedMemorandum of Claim dated 27th January, 2023· [2024] KEELRC 448 (KLR)

Wandeto v LC Waikili Ltd (Cause E092 of 2023) [2024] KEELRC 448 (KLR)

Employment and Labour Relations Court
21 February 2024
810 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed an unfair termination claim because the employer proved the cashier broke company discount and exchange procedures through a proper disciplinary process.

What this practically means

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Executive summary

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The claimant, formerly a cashier and later Head Cashier at the Respondent's Junction Mall Branch, sued claiming that his employment, terminated on 13th December 2022 following a disciplinary committee's recommendation, was wrongful, unfair and unlawful. He sought a declaration of unfair termination, general damages of Kshs 999,252 (twelve months' gross pay at Kshs 83,271), one month's pay in lieu of notice, costs and interest. The Respondent defended the claim, asserting that the claimant irregularly applied a discount to a long trouser he had purchased on 3rd September 2022 and later irregularly effected an exchange without following the establishment's sequential seven-point exchange procedure or involving his seniors, conduct viewed as irregular and fraudulent, and that he was subjected to a due disciplinary process culminating in termination. The court framed three issues: whether the termination was wrongful, unfair and unlawful; entitlement to relief; and costs. The claimant relied on Galgalo Jarso Jillo v Agricultural Finance Corporation [2021] eKLR and Section 43(2) of the Employment Act on valid reasons for termination. The court found the Respondent had, on a balance of probability and preponderance of evidence, established lawful termination. Having lost on the unlawful termination issue, the claimant was held disentitled to the reliefs sought. The claim was dismissed with each party bearing their own costs. Judgment was delivered on 21st February 2024 by D. K. Njagi Marete, Judge.

Key legal issues

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01

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

Holding

Termination was lawful; the Respondent proved, on a balance of probability, that the claimant irregularly and fraudulently processed a discount and exchange contrary to company procedure and was subjected to due disciplinary process

Reasoning

The claimant was accused of unilaterally applying a discount to a trouser he had purchased and later effecting an exchange without following the Respondent's seven-point exchange procedure or involving his seniors. He was subjected to a disciplinary committee which recommended termination. The court found the Respondent's evidence overwhelming and that it had preponderance of evidence supporting lawful termination.

p. 3
02

Whether the claimant is entitled to the relief sought

Holding

Not entitled; the claim was dismissed and each party ordered to bear own costs

Reasoning

Having failed to establish wrongful, unfair or unlawful termination, the consequential reliefs - the declaration, general damages of Kshs 999,252, one month's pay in lieu of notice, interest and costs - all fell away. The court dismissed the claim in its entirety and made no order as to costs.

p. 3

Legal principles established

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  • A valid reason for termination must be established under Section 43(2) of the Employment Act, 2007, and the employer bears the burden of justifying termination on a balance of probability

Court orders

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  1. 1.The claim is dismissed
  2. 2.Each party bears their own costs

Authorities

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Legislation

  • Employment ActSection 43(2)

Cases cited (1)

  • Galgalo Jarso Jillo v Agricultural Finance Corporation
    [2021] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction 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, "Wandeto v LC Waikili Ltd (Cause E092 of 2023) [2024] KEELRC 448 (KLR)", Case Analysis (2024). Memorandum of Claim dated 27th January, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/448/eng@2024-02-21

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