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Court of AppealPartially AllowedCivil Appeal E249 of 2021· [2024] KECA 1944 (KLR)

Unilever Kenya Limited v Gathomi

Court of Appeal
20 December 2024
DMDK MusingaASMS Asike-MakhandiaSKSG Kairu
2,644 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed employers must give employees the actual documents behind disciplinary charges, but struck out notice pay awarded alongside a justified summary dismissal.

What this practically means

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Executive summary

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The Court of Appeal (Musinga, Asike-Makhandia and Kairu, JJA) dismissed in part an appeal by Unilever Kenya Limited against a judgment of the ELRC (Wasilwa, J.) which had found that although the employer had valid reasons to summarily dismiss the respondent, Beth Nyawira Gathomi, for gross misconduct, the disciplinary process was unfair, and had awarded her various sums including four months' salary for unfair dismissal, three months' salary in lieu of notice, leave allowances and salary for days worked. The appeal was confined to the findings on procedural fairness and damages. The Court applied Section 41 of the Employment Act and its decision in Postal Corporation of Kenya v Andrew K. Tanui, holding that the minimum standards of fair procedure require explanation of the grounds, entitlement to a representative, and hearing of representations, and that an employee is entitled to the documents supporting the charges, including an investigation report. Because the suspension letter did not disclose the allegation, the show cause letter was broad and unsubstantiated, and the investigation report was never supplied despite requests, the Court agreed that the process was unfair. However, since the finding that the summary dismissal was justified was unchallenged, the award of three months' salary in lieu of notice was contradictory and was set aside. The rest of the ELRC judgment was upheld and affirmed, with each party bearing its own costs of the appeal.

Key legal issues

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01

Procedural fairness of the disciplinary process

Holding

The process was unfair: the respondent was not given the charges with particularity, the investigation report, or access to her computer to prepare her defence.

Reasoning

The suspension letter did not disclose the allegation; the show cause letter was broad and unsubstantiated; the respondent's complaints about lack of particulars were not addressed; the investigation report was requested but never supplied even at the hearing. Applying Section 41 and the Postal Corporation case, the Court upheld the ELRC's finding of procedural unfairness.

p. 3
02

Award of three months' salary in lieu of notice

Holding

The award was contradictory to the unchallenged finding that summary dismissal for gross misconduct was justified, and was set aside.

Reasoning

Since the appellant's justification for summary dismissal was not challenged on appeal, an award of notice pay had no legal basis; notice pay compensates termination without notice, which is incompatible with justified summary dismissal for gross misconduct.

p. 5

Legal principles established

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  • Section 41 of the Employment Act provides the minimum standards of a fair procedure, including explanation of grounds, entitlement to a representative, and hearing of representations.
  • An employee facing disciplinary charges is entitled to the documents supporting the charges, including an investigation report, as the essence of fairness even outside a judicial setting.
  • An award of salary in lieu of notice is inconsistent with a finding that summary dismissal for gross misconduct was justified, and cannot stand.

Court orders

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  1. 1.The award of Kshs.498,594.99 being three months' salary in lieu of notice is set aside
  2. 2.The judgment of the ELRC is otherwise upheld and affirmed
  3. 3.Each party shall bear its own costs of the appeal
On appeal from
Employment and Labour Relations Court of Kenya at Nairobi
ELRC Cause No. 124 of 2015
Jurisdiction invoked
First appellate jurisdiction over the Employment and Labour Relations Court (Court of Appeal, Employment and Labour Relations Court Act jurisdiction)

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, "Unilever Kenya Limited v Gathomi", Case Analysis (2024). Civil Appeal E249 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1944/eng@2024-12-20

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