Kamau v Nairobi Enterprises Limited (Cause 864 of 2019) [2023] KEELRC 1162 (KLR)
The bottom line
#A Kenyan court upheld the summary dismissal of an employee who secretly ran a competing business, ruling the dismissal both substantively justified and procedurally fair.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there existed valid reasons for the summary dismissal of the Claimant (substantive fairness under section 43 of the Employment Act)
- 2.Whether the termination accorded procedural fairness under section 41 of the Employment Act
- 3.Whether the Claimant is entitled to the reliefs sought (terminal dues, notice pay, leave days, tools, commission, pension, certificate of service)
Key legal issues
#Substantive fairness - valid reason for dismissal
Valid reasons existed: the Claimant ran a competing business (Medquip Limited) dealing with the Respondent's clients, an obvious conflict of interest
The Claimant did not contest that he conducted a competing business; his defence that the Respondent's director authorised and financed the registration was unsupported by any independent evidence and disbelieved. Invoices from Medquip to MP Shah, a Respondent client, evidenced conflict of interest. Summary dismissal for gross misconduct under section 44(4) was therefore substantively justified.
Procedural fairness - hearing under section 41
No violation of procedural fairness; the format of a hearing depends on circumstances and need not be a formal session
Section 41 requires an employee be heard, but not necessarily through a formal sitting with witnesses. Fairness may be achieved through exchange of letters or active interaction between employer and employee on an issue the employee has not denied or rebutted. Since the reason for dismissal was clear to the Claimant and he admitted involvement, a formal hearing would have served no purpose.
Reliefs
None awarded; the claim having failed, the Claimant is disentitled to all reliefs
Having found the dismissal lawful and fair, the court dismissed the entire claim including compensation, terminal dues, notice pay, leave, tools, commission and pension claims, and awarded costs to the Respondent.
Legal principles established
#- The employer bears the burden of proving the reason for termination; failing which the termination is unfair
- A hearing before termination need not be a formal session; fairness may be satisfied by an exchange/interaction between employer and employee
- Employment is a position of trust; competing business by an employee justifies summary dismissal
Court orders
#- 1.The claim is dismissed with costs
- 2.It is so ordered
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 44, 45, 49 applied)
Relief refused
#Declaration of unfair and unlawful termination
Court found valid reasons existed and procedure not violated
12 months' salary compensation
Claim dismissed as without merit
Terminal dues, notice pay, leave days, value of tools, commission and pension
Dismissed with the entire claim
Costs
The claim is dismissed with costs to the Respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The claim is therefore found without merit and is hereby dismissed with costs.
It is so ordered.
The Court is therefore persuaded that there existed valid reasons for dismissing the claimant and that the dismissal did not violate any procedural fairness since the matter for which he was dismissed was live in his mind and he admitted being involved save for that he tried to justify the same as being with the knowledge of the respondent.
there is no requirement that such a hearing must be by a formal session where people must sit down and witnesses called
Issues in the judgment
#Case name of the KRA authority appears in two variants within the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamau v Nairobi Enterprises Limited (Cause 864 of 2019) [2023] KEELRC 1162 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1162/eng@2023-05-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.