Kimeu v Metsec Cables Limited (Cause E451 of 2020) [2024] KEELRC 2047 (KLR)
The bottom line
#The Employment Court upheld an employee's dismissal for unauthorised discounts and ordered him to pay his former employer Kshs. 719,415.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the parties were in a contract of service
- 2.Whether and how the contract of service was terminated and the reason for dismissal
- 3.Whether the termination was unfair
- 4.Whether the claimant is entitled to salary up to the date of dismissal and payment for leave, and to a certificate of service
- 5.Whether the respondent's counterclaim of Kshs. 781,311.00 is established
Key legal issues
#Validity of the reason for termination
The reason for dismissal (granting an extra 10% discount without authorisation) was valid and existed at the time of termination under section 43 of the Employment Act, 2007
The claimant's discount limit was 40%, but invoices generated under his credentials allowed 50% discounts. He was served a show cause letter and accorded a disciplinary hearing. His own witness statement admitted an invoice with a 50% discount was generated in his name, and a beneficiary was a company associated with his wife. He failed to show how the invoices could have been generated otherwise, confirming culpability.
Procedural and substantive fairness of the dismissal
The summary dismissal was fair both in procedure and in substance under section 45 of the Employment Act
The respondent issued a notice to show cause dated 27 March 2020, considered the claimant's handwritten response, invited him to a disciplinary hearing before its management committee, and only then concluded the conduct amounted to gross misconduct. The established reason related to the claimant's conduct and the respondent's operational systems. Accordingly, the claims for compensation for unfair dismissal and one month's pay in lieu of notice collapsed.
The counterclaim for losses from unauthorised discounts
The respondent established the counterclaim of Kshs. 781,311.00; after set-off against the Kshs. 61,896 awarded to the claimant, the claimant was to pay Kshs. 719,415
The Court found the claimant culpable for the unauthorised 50% discounts issued under his credentials, establishing the respondent's loss. The Court applied a set-off of the salary award against the counterclaim amount, leaving a balance payable by the claimant, and considered margins of success in declining to award costs to either party.
Salary up to date of dismissal and certificate of service
The claimant was awarded Kshs. 61,896 for unpaid salary up to dismissal, leave pay was declined for lack of particulars, and he was entitled to a certificate of service
The last payslip was issued but the amount did not appear to have been credited to the claimant's bank account, justifying the award of Kshs. 61,896. The leave claim failed because no particulars or basis for the amount claimed were offered. Statutory entitlement to a certificate of service was upheld, with delivery ordered within 30 days.
Legal principles established
#- An employer establishing a valid reason under section 43 and following due process (show cause letter and disciplinary hearing) renders a summary dismissal fair in procedure and substance under section 45 of the Employment Act
- An employee whose credentials generate invoices bearing unauthorised discounts bears culpability absent proof of how else the invoices arose
Court orders
#- 1.The claimant to pay the respondent a sum of Kshs. 719,415.00
- 2.The respondent to deliver the certificate of service in 30 days
- 3.Each party to bear own costs of the proceedings
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Relief refused
#Compensation for unfair dismissal (12 months' salary)
The Court found the summary dismissal was not unfair in procedure and substance
One month's salary in lieu of notice
The prayer collapses as the dismissal was fair and for a valid reason
Accrued leave balance of Kshs. 31,000
The claimant did not offer particulars or the basis of the amount claimed
Costs
Each party to bear own costs of the proceedings
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Court finds that the summary dismissal was not unfair in procedure and sub stance. The claims and prayer for compensation for unfair dismissal will collapse.
The invoices having been generated using the claimant’s name, he has failed to show how that could have been the case so as to escape culpability. He generated the invoices. He was culpable.
The claimant to pay the respondent a sum of Kshs. 719, 415.00.
The respondent to deliver the certificate of service in 30 days.
Each party to bear own costs of the proceedings.
Issues in the judgment
#The case number of the memorandum of claim is not stated anywhere in the judgment as provided
The judgment refers to five issues to be determined but only frames the issues implicitly without a numbered list of issues for determination
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimeu v Metsec Cables Limited (Cause E451 of 2020) [2024] KEELRC 2047 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2047/eng@2024-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.