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ELRCPartially AllowedNot stated in the judgment· [2025] KEELRC 1544 (KLR)

Genga v Royal Garment Industries EPZ Limited (Cause E383 of 2020) [2025] KEELRC 1544 (KLR)

Employment and Labour Relations Court
29 May 2025
2,196 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld an employee's summary dismissal for theft but refused the employer's Kshs 1.6 million counterclaim for lack of proof.

What this practically means

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Executive summary

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The claimant, a Stores In-charge employed by the respondent on 04.01.2017 at a monthly consolidated salary of Kshs. 54,133.00, was summarily dismissed on 01.07.2020 after being stopped by a security guard leaving the premises with a piece of fabric. He claimed a declaration of unfair termination, June–July 2020 salary, payment in lieu of notice and leave, underpayment of salary and leave, gratuity/service pay, 12 months' compensation, and a certificate of service. The respondent counterclaimed for Kshs. 1,665,574/- alleging systematic theft of fabric between January and July 2020, and asserted the dismissal followed a show-cause process to which the claimant admitted theft. The court found the parties were bound by a contract of service paid per the payslips, defeating the underpayment claim. It held that the summary dismissal complied with sections 41 and 44 of the Employment Act, the reason for dismissal was valid and fair under sections 43 and 45, and that the claimant's subsequent conviction in Criminal Case No. 447 of 2020 at Mavoko for stealing by servant confirmed the reason's validity. The claims for leave, underpayment and service pay failed for want of contract basis and evidence, the claimant having failed to discharge his burden of proving non-payment. The counterclaim failed for want of particulars of quantity and value of the alleged theft and want of strict proof. The court ordered delivery of the certificate of service within 30 days, dismissed the suit and counterclaim, and directed each party to bear its own costs.

Key legal issues

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01

Validity and fairness of summary dismissal for theft

Holding

The summary dismissal was substantively and procedurally fair; the show-cause process was followed and the reason (theft) was valid, and the claimant was convicted in Criminal Case No. 447 of 2020 at Mavoko

Reasoning

The claimant was issued a show cause letter, replied, was heard and dismissed the same day. Section 44 permits summary dismissal with shorter or no notice. Sections 41 and 43 on notice, hearing and reason were complied with, and the reason was valid and fair under sections 43 and 45. The claimant's subsequent criminal conviction for stealing by servant confirmed the validity of the reason.

p. 4
02

Alleged underpayment of salary and leave

Holding

Unjustified; the respondent paid per the contract and payslips, and leave was paid per the last payslip

Reasoning

The claimant's contract provided a consolidated salary of Kshs. 54,133.00 which was paid per the payslips. On leave, the claimant never demanded production of payment records held by the respondent and failed to produce his bank statements to show non-payment; the burden of proving non-payment lay on him and was not discharged.

p. 5
03

The respondent's counterclaim for Kshs. 1,665,574/- for alleged systematic theft of fabric

Holding

Dismissed for want of particulars and want of strict proof

Reasoning

The counterclaim lacked particulars of the quantity and value of fabric attributable to the claimant for the period 01.01.2020 to 01.07.2020. The fabric found in his possession was not valued, had been recovered and used as a trial exhibit, and the respondent never put the counterclaim allegations to the claimant in the show cause letter.

p. 5
04

Certificate of service

Holding

The claimant is entitled to a statutory certificate of service

Reasoning

The claimant was never issued a certificate of service despite entitlement under the law; the respondent's assertion that he could collect it was insufficient. The court ordered its delivery within 30 days.

p. 5

Legal principles established

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  • Summary dismissal under section 44 of the Employment Act is permissible with shorter or no notice, provided the requirements of sections 41, 43 and 45 are met
  • A party alleging non-payment bears the burden of proving it and cannot shift that burden where the other party holds payment records but the allegation was never pressed by demand for production
  • A counterclaim for loss from theft must be particularised as to quantity and value of the alleged theft and strictly proved

Court orders

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  1. 1.The respondent to deliver the claimant's certificate of service within 30 days from the date of judgment
  2. 2.Subject to the delivery of the certificate of service, the claimant's suit is otherwise dismissed
  3. 3.The counterclaim is dismissed
  4. 4.Each party to bear own costs of the entire proceedings
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over a memorandum of claim and counterclaim arising from summary dismissal under the Employment Act, 2007 (specific enabling provision not cited in the judgment)

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, "Genga v Royal Garment Industries EPZ Limited (Cause E383 of 2020) [2025] KEELRC 1544 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1544/eng@2025-05-29

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