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ELRCPartially AllowedCause No 37 of 2019· [2025] KEELRC 535 (KLR)

Kariuki v Almasi Beverages Limited & another (Cause 37 of 2019) [2025] KEELRC 535 (KLR)

Employment and Labour Relations Court
20 February 2025
5,350 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded an employee six months' salary because his employer charged him with misconduct at a disciplinary hearing that was never listed in the show cause letter.

What this practically means

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Executive summary

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The Claimant, employed from 9th December 1987 by Rift Valley Bottlers Limited (later acquired by the Respondents), was terminated on 31st May 2019 for gross misconduct following a show cause letter dated 24th April 2019 alleging loss of company assets and poor performance, and a disciplinary hearing on 29th April 2019. He claimed unfair and constructive dismissal, 12 months' compensation, three months' salary in lieu of notice, unpaid leave allowance, service pay and a certificate of service. The Respondents maintained the termination was both substantively and procedurally fair, that prior warnings had been issued, and that terminal dues including 90 days' notice pay and a certificate of service were paid. The court framed two issues: substantive and procedural fairness of the termination, and entitlement to remedies. It found the show cause and invitation process compliant with section 41 of the Employment Act, but held the disciplinary hearing unfair: the show cause letter listed five charges while the hearing required the Claimant to answer eight charges, some never in the notice, denying him a fair opportunity to prepare and respond, and his responses, including the mismatch between his qualifications and role, were not addressed. Constructive dismissal was rejected; service pay was barred by membership of NSSF and the pension scheme; notice pay, leave and the certificate had already been given. Awarding compensation under section 49 considering 31 years and 5 months of service, the court granted six months' salary (Kshs. 1,071,072) with costs to the Claimant and interest from the date of judgment. Judgment delivered virtually on 20th February 2025 by Maureen Onyango, Judge.

Key legal issues

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01

Whether the termination was procedurally fair under section 41 of the Employment Act

Holding

The disciplinary hearing was unfair because the Claimant was not given specific charges in advance; he faced 8 charges at the hearing while the notice to show cause listed only 5, some charges being new, and his responses to some charges were not addressed.

Reasoning

While the show cause letter dated 24th April 2019 listed five charges, at the hearing the Claimant was required to answer eight charges, some not in the show cause letter. Relying on Sani v JSC quoting OH Abantu (Pty) Ltd, the court held the employee must be aware of the charges and able to answer them. The mismatch between the Claimant's qualifications and role was also not addressed. The hearing therefore failed the test of fairness.

p. 12
02

Whether the termination was substantively fair

Holding

Substantive fairness was not the focus of the finding; the award was founded on procedural unfairness, with the court noting the Respondent did not give credit to the mismatch between the Claimant's qualifications and his role which impacted his performance.

Reasoning

The court reproduced the show cause letter and disciplinary invitation and was satisfied the Respondent complied with section 41 as to process up to the hearing. However, the introduction of charges beyond those in the show cause letter, and the failure to consider the employee's responses and the qualification/role mismatch, vitiated the fairness of the process, warranting compensation under section 49.

p. 12
03

Whether the Claimant was constructively dismissed and entitled to 12 months' compensation

Holding

No constructive dismissal was established; only compensation for unfair termination was awarded, assessed at six months' salary considering 31 years and 5 months of service and section 49(4) factors.

Reasoning

The Claimant's employment was terminated by the employer, not at his instance, so constructive dismissal did not arise. Considering his long service and the circumstances of termination, the court exercised its discretion under section 49(4) to award six months' gross pay instead of the twelve months sought.

p. 12

Legal principles established

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  • An employee must be informed of the specific charges against him in advance of a disciplinary hearing so as to afford a fair opportunity to prepare and respond; an employer cannot introduce new charges at the hearing, and dismissal on grounds the employee was never given an opportunity to answer fails the test of fairness.
  • Procedural fairness under section 41 of the Employment Act requires that charges in a notice to show cause match the charges put to the employee at the disciplinary hearing.

Court orders

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  1. 1.Compensation for unfair termination of Kshs. 1,071,072 being six months' salary based on the Claimant's last gross pay of Kshs. 178,512
  2. 2.The Respondent shall bear the costs of the suit
  3. 3.Interest shall accrue from the date of judgment

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27, 30, 41, 47, 48, 50
  • Employment Act, 2007sections 4, 5, 10, 27, 36, 41, 43, 43(1), 44, 47(5), 49(1)(a) and (c), 49(4), 51
  • Companies Actnot specified

Cases cited (7)

  • CMC Aviation Ltd v Crusair Ltd (No.1)
    (1987) KLR 103
  • Re H and Others (Minors) (Sexual Abuse – Standard of Proof)
    [1969] - as cited by counsel
  • Miller v Minister of Pension
    (1947) ALL ER 373
  • Margaret Auma Ingwe v Kenya Power and Lighting Company Limited
    [2015] eKLR
  • Francis Aboge Oduk v Hasbah Kenya Limited
    null
  • Sani v JSC
    (Cause 7 of 2019) [2022] KEELRC 4000 (KLR) (26 September 2022)
  • OH Abantu (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Ors
    (2019) 40 ILJ 2477
Jurisdiction invoked
Employment and labour relations jurisdiction (Articles 41, 47 and 50 of the Constitution and the Employment Act, 2007 invoked in the pleadings)

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, "Kariuki v Almasi Beverages Limited & another (Cause 37 of 2019) [2025] KEELRC 535 (KLR)", Case Analysis (2025). Cause No 37 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/535/eng@2025-02-20

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