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ELRCPartially AllowedCause No E915 of 2021· [2025] KEELRC 122 (KLR)

Kaimenyi v Petro Oil Kenya Limited (Cause E915 of 2021) [2025] KEELRC 122 (KLR)

Employment and Labour Relations Court
23 January 2025
2,938 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 ruled a fuel station manager's sacking unfair because her employer couldn't prove theft, awarding her Kshs. 246,554.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from March 2012 as a pump attendant and rising to Station In-Charge at its Meru station, was summarily dismissed by letter dated 24th June 2021 on grounds of dishonesty, gross negligence and/or theft of product arising from abnormally large fuel losses at the station. She claimed a declaration that the dismissal was unlawful, reinstatement, special damages of Kshs. 425,221.60, general and punitive damages, overtime and leave dues. The Respondent denied the claim, asserting procedural fairness and that all dues were paid. The suit was disposed of by pleadings, documents and witness statements with consent, and the court framed three issues: valid reason, fair procedure, and remedies. The court found that although the Respondent complied with section 41 of the Employment Act by issuing a show cause letter, holding a disciplinary hearing and offering the right to accompaniment, it failed to prove the reasons for dismissal under section 43: no investigation report established dishonesty or theft, and the losses proved at most poor performance or incompatibility, which required different handling. The dismissal was therefore unfair for want of a valid reason. Reinstatement was refused as unworkable after over three years out of employment; overtime, leave and disciplinary travel expenses were declined as unproved. The court awarded one month's salary in lieu of notice (Kshs. 35,222) and six months' salary as compensation under section 49(4) (Kshs. 211,332), totalling Kshs. 246,554, with costs to the Claimant and interest from the date of judgment.

Key legal issues

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01

Whether there was a valid reason for the summary dismissal

Holding

No valid reason was proved; the Respondent did not prove dishonesty or theft, only that product losses occurred during the Claimant's tenure

Reasoning

Section 43 of the Employment Act requires the employer to prove the reasons for termination on the basis of matters it genuinely believed to exist. The dismissal letter alleged dishonesty, gross negligence or theft, but the disciplinary minutes contained no finding of dishonesty and the word 'grossly' was vague and unsubstantiated. There was no investigation report. The losses proved at most poor performance or incompatibility, grounds requiring different handling.

p. 5
02

Whether the procedure before summary dismissal was fair

Holding

Procedure was fair; the Respondent complied with section 41 of the Employment Act

Reasoning

The Claimant was issued with a show cause letter which she answered, was invited to a disciplinary hearing with notice of her right to be accompanied by a fellow employee or union official, attended and stated her case, and signed the minutes as accurate. Although the lack of valid reason rendered the termination unfair under section 45, the procedural limb was satisfied.

p. 6
03

Whether the Claimant was entitled to the remedies sought

Holding

Notice pay and six months' salary compensation awarded; reinstatement, overtime, leave and disciplinary expenses declined

Reasoning

Having found the termination unfair, the court awarded one month's gross salary in lieu of notice per the contract and, considering the nine years of service and factors under section 49(4), six months' salary as compensation. Reinstatement was unavailable after over three years out of employment. Overtime, leave and disciplinary travel expenses were not proved.

p. 7

Legal principles established

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  • An employer bears the burden of proving the reason for termination, failing which the termination is unfair under section 45 of the Employment Act
  • For termination to be fair there must be both fair procedure and valid reason; product losses attributable at most to poor performance or incompatibility do not establish gross misconduct without an investigation report

Court orders

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  1. 1.Declaration that the summary dismissal of the Claimant's employment was unfair
  2. 2.Kshs. 35,222 being one month's gross salary in lieu of notice
  3. 3.Kshs. 211,332 being six months' salary as compensation for unfair termination under section 49 of the Employment Act
  4. 4.Total award of Kshs. 246,554 to the Claimant
  5. 5.Respondent to pay the Claimant's costs of the suit
  6. 6.Interest to accrue from the date of judgment

Authorities

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Legislation

  • Employment Act, 2007Section 44(4)(c) and (g)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 49(1)(c) and 49(4)
  • Employment Act, 2007Section 8

Cases cited (6)

  • National Bank of Kenya v Samuel Nguru Mutonya
    [2019] eKLR
  • Jane Samba Mukala v Ol Tukai Lodge Limited
    Industrial Cause Number 823 of 2010; (2010) LLR 255 (ICK)
  • Daniel Mbuthi v Express Automation Limited
    [2014] eKLR
  • Maina Mwangi v Thika Coffee Mills Limited
    [2012] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Pamela Nelima Lutta v Mumias Sugar Co. Ltd
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43, 45, 49 applied)

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, "Kaimenyi v Petro Oil Kenya Limited (Cause E915 of 2021) [2025] KEELRC 122 (KLR)", Case Analysis (2025). Cause No E915 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/122/eng@2025-01-23

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