Barasa v Weson Investment Limited t/a Shell Radiant Service Station (Employment and Labour Relations Cause E100 of 2024) [2025] KEMC 26 (KLR)
The bottom line
#A Kenyan court ruled an employee's dismissal for suspected fuel theft was justified but unfair because the employer skipped mandatory disciplinary procedures, awarding significant unpaid dues.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was procedurally fair under sections 41 and 45 of the Employment Act
The dismissal was procedurally unfair: no show-cause letter was issued, the Claimant was not invited to a disciplinary meeting, was not given time to prepare a defence, and was not accompanied by a colleague of choice; the impromptu meeting was merely a preliminary inquiry.
Section 41 sets out mandatory ingredients: notification of the intended action and reasons, an adequate opportunity to make representations, the right to be accompanied by a colleague or union representative, and consideration of those representations. The court found the meeting held by RW1 immediately after the fuel loss lacked notice, opportunity to prepare and accompaniment, so it could not qualify as a disciplinary meeting. It held the summary dismissal procedurally unfair.
Whether the summary dismissal was substantively justified under sections 43 and 44 of the Employment Act
The dismissal was substantively fair: the Respondent genuinely had reasons to suspect the Claimant's involvement in the fuel loss, and dishonesty provides just cause for summary dismissal on the particular facts.
The Respondent reported the loss to the police and conducted preliminary investigations including review of CCTV footage and checklists. Although the OB extract did not expressly confirm the Claimant was a suspect and the CCTV footage was not produced, the court found the Respondent must have had reasons to suspect the Claimant, who was arrested though not charged. Considering the industry and the Claimant's position, the court found valid and fair reasons existed and the dismissal was substantively fair.
Whether the Claimant was entitled to compensation under section 49(1)(c) and other reliefs
A nominal award of one-half month's gross salary (Kshs. 9,450) was granted for the procedural unfairness; house allowance (Kshs. 425,250), untaken annual leave (Kshs. 436,973.24), public holiday pay (Kshs. 249,699.24), contribution savings (Kshs. 150,000), certificate of service, interest and costs were awarded; notice pay was declined.
The award under section 49(1)(c) is discretionary and depends on the circumstances; here the unfairness arose from a single procedural misstep and the dismissal was substantively fair, justifying a nominal award. The employment contract made no provision for house allowance despite the statutory duty under section 31, and stipulated no leave. Attendance records confirmed the Claimant worked public holidays. Notice pay failed because the dismissal was substantively justified.
Legal principles established
#- For a termination to pass the fairness test there must be both substantive justification and procedural fairness.
- The procedure under section 41 of the Employment Act is mandatory and must be followed even where an employee is accused of committing a criminal offence such as stealing.
- An impromptu meeting without show-cause notice, adequate time to prepare, or accompaniment by a colleague of choice does not qualify as a disciplinary meeting under section 41.
- Under section 43 of the Employment Act, the employer bears the burden of proving the reasons for termination, failing which the termination is deemed unfair under section 45(2).
- Section 31 of the Employment Act creates a corresponding duty on the employer to either pay house allowance or provide reasonable accommodation.
Court orders
#- 1.A declaration that the summary dismissal against the Claimant was procedurally unfair but substantively justified
- 2.Compensation for unfair dismissal pursuant to Section 49(1)(c) of the Employment Act of Kshs. 9,450.00
- 3.Compensation for unpaid house allowance of Kshs. 425,250.00
- 4.Annual Leave Prohibited: Kshs. 436,973.24
- 5.Public Holidays: Kshs. 249,699.24
- 6.Certificate of Service to be issued to the Claimant
- 7.Interest on the awarded sums from the date of judgment till full payment
- 8.Costs of the suit to the Claimant
- 9.30 days stay of execution granted at the delivery of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over claims of unfair termination under Article 41 of the Constitution of Kenya, 2010 and the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Barasa v Weson Investment Limited t/a Shell Radiant Service Station (Employment and Labour Relations Cause E100 of 2024) [2025] KEMC 26 (KLR)", Case Analysis (2025). Not stated in the judgment (Memorandum of Claim dated 16/05/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/26/eng@2025-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.