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MagistratePartially AllowedNot stated in the judgment (Memorandum of Claim dated 16/05/2024)· [2025] KEMC 26 (KLR)

Barasa v Weson Investment Limited t/a Shell Radiant Service Station (Employment and Labour Relations Cause E100 of 2024) [2025] KEMC 26 (KLR)

Employment and Labour Relations Court (sitting before a Senior Principal Magistrate)
4 March 2025
4,323 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, a service attendant earning Kshs. 18,900 per month, was summarily dismissed on 26/05/2023 following a shortage of 3,208 litres of petrol discovered on 09/05/2023. He claimed the dismissal was wrongful, unlawful and procedurally unfair, and sought declarations, 12 months' salary as compensation, notice pay, house allowance for 150 months, untaken leave, public holiday pay, contribution savings, a certificate of service, interest and costs. The Respondent maintained that a disciplinary meeting was held, that the Claimant was implicated by CCTV footage and a colleague's statement, that the dismissal complied with section 44(4)(g) of the Employment Act, and that all dues had been cleared. The court framed two issues: whether the summary dismissal was unfair, and whether the reliefs sought were payable. It held that the impromptu meeting held by the Executive Director was merely a preliminary inquiry, lacking show-cause notice, adequate preparation time and accompaniment by a colleague, rendering the dismissal procedurally unfair. However, considering the industry, the Claimant's position and the suspicion of fuel theft reported to police, the court found valid and fair reasons existed, making the dismissal substantively justified. Compensation under section 49(1)(c) was limited to a nominal half-month's salary (Kshs. 9,450). The court awarded house allowance of Kshs. 425,250, annual leave of Kshs. 436,973.24, public holiday pay of Kshs. 249,699.24, a certificate of service, interest and costs, but declined notice pay and found no basis for underpayment. Judgment entered for the Claimant; 30 days' stay of execution granted.

Key legal issues

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01

Whether the summary dismissal was procedurally fair under sections 41 and 45 of the Employment Act

Holding

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.

Reasoning

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.

p. 6
02

Whether the summary dismissal was substantively justified under sections 43 and 44 of the Employment Act

Holding

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.

Reasoning

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.

p. 7
03

Whether the Claimant was entitled to compensation under section 49(1)(c) and other reliefs

Holding

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.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.A declaration that the summary dismissal against the Claimant was procedurally unfair but substantively justified
  2. 2.Compensation for unfair dismissal pursuant to Section 49(1)(c) of the Employment Act of Kshs. 9,450.00
  3. 3.Compensation for unpaid house allowance of Kshs. 425,250.00
  4. 4.Annual Leave Prohibited: Kshs. 436,973.24
  5. 5.Public Holidays: Kshs. 249,699.24
  6. 6.Certificate of Service to be issued to the Claimant
  7. 7.Interest on the awarded sums from the date of judgment till full payment
  8. 8.Costs of the suit to the Claimant
  9. 9.30 days stay of execution granted at the delivery of judgment

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Employment Act, 2007Sections 31, 35, 36, 41, 43, 44(1)-(4) including 44(4)(g), 45(1) and (2), 49(1)(c)
  • Regulation of Wages (General) (Amendment) Order, 2022Not specified

Cases cited (5)

  • Abong v Safaricom Limited
    (Employment and Labor Relations Cause 419 of 2018) [2024] KEELRC 2656 (KLR) (31 October 2024)
  • Walter Ogal Anuro –v- Teachers Service Commission
    (2013) eKLR
  • Pius Macha Isunde vs Lavington Security Guards Limited
    [2017] eKLR
  • Machanga Mwachanya vs Operation 680 Limited
    [2013] eKLR
  • Fredrick Saundu Amolo suing through the Executive Secretary KUPPET Kajiado County Branch –V- Principal Namanga Mixed Day Secondary School & 2 Others
    (2014) eKLR
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

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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, "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.