Kamau v Cleanshelf Supermarket Limited (Cause 662 of 2020) [2024] KEELRC 1548 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the Claimant's contract was terminated through a fair procedure
- 2.whether there was valid reason to justify termination
- 3.whether she is entitled to the remedies sought
Key legal issues
#Fairness of redundancy procedure
Procedure was unfair and unlawful; no notices to the Claimant or Labour Office, no tripartite consultation, no selection criteria disclosed
Section 40 requires notification of the employee and Labour Office and consultation. The Claimant was suspended without pay on disciplinary grounds, issued a final warning with no subsequent misconduct, then handed a termination letter citing redundancy upon reporting back. The Court found a complete aberration of the statutory redundancy procedure and, alternatively, a breach of Sections 41 and 45.
Validity of the reason for termination
No valid reason; the redundancy was colourable, designed to cloak a failed disciplinary agenda
The ERP system was not shown to render the Reporting Accountant role superfluous; the role was not phased out and the system was already in motion during suspension. The reason radically shifted from late VAT filing to sudden redundancy, indicating the employer realised disciplinary proceedings would fail.
Remedies for unfair termination
Maximum compensation of 12 months' gross salary (Kshs. 768,000) awarded given 8½ years of exemplary service, no contribution to termination, and the deficient manner of termination
The Claimant served 8½ years, was promoted on merit, described as exemplary, did not contribute to termination, and had an indefinite contract. Terminal dues of Kshs. 367,269 were only paid after court intervention. The Court granted the equivalent of 12 months' salary at Kshs. 64,000 monthly.
Unlawful deduction of VAT penalty
Refund of Kshs. 5,000 granted; deduction unsupported and imposed without a hearing
The Respondent did not prove it incurred the VAT penalty through the Claimant's acts or omissions, and no hearing was conducted before deducting the sum from her terminal dues.
Enforceability of promised salary increment
Hortatory praise by superiors did not create an enforceable obligation to increase salary by Kshs. 25,000 monthly
Although promoted and commended, no document showed an agreed or enforceable commitment to a specific Kshs. 25,000 monthly increment; the Claimant received annual increments applicable to all staff.
Legal principles established
#- An employer who elects redundancy as the mode of termination must fully comply with Section 40 of the Employment Act
- Employees cannot be made to bear their employer's VAT obligations without a hearing establishing their liability
Court orders
#- 1.It is declared that termination was unfair and unlawful
- 2.The Respondent shall pay to the Claimant compensation for unfair and unlawful termination equivalent of 12 months' salary at Kshs. 768,000 and refund of Kshs. 5,000 - total Kshs. 773,000
- 3.Costs to the Claimant
- 4.Interest granted at court rate, from the date of Judgment, till payment is made in full
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; Statement of Claim filed 16th October 2020)
Relief refused
#Refund of 'suspension amount' Kshs. 23,145
She was paid salary for days worked in June as part of terminal dues
Unlawful salary reduction Kshs. 7,416
The Court did not understand the pleaded item; what is not understood has not been established
Unpaid salary increment arrears Kshs. 1,233,333
No contractual or enforceable commitment to raise salary by Kshs. 25,000 monthly
Annual leave, service/severance pay and notice
These were part of terminal benefits already paid
General/exemplary damages for breach of constitutional rights
Not established
Costs
Costs to the Claimant
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.
Having selected redundancy as the mode of termination, it behoved the Respondent to embrace in full, the procedure prescribed on redundancy, under Section 40 of the Employment Act.
Redundancy was a most colourable exercise, which was designed to justify termination, after the Respondent realized while the Claimant was on suspension, that any disciplinary proceedings against the Claimant, would come to a cropper.
It is not the role of Employees to pay their Employer's VAT obligations.
It is declared that termination was unfair and unlawful.
The Respondent shall pay to the Claimant compensation for unfair and unlawful termination equivalent of 12 months' salary at Kshs. 768,000 and refund of Kshs. 5,000 - total Kshs. 773,000.
Issues in the judgment
#Case number and cause title details not stated in the extract of the judgment provided
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Macharia v Registered Trustees of the Sisters of Mercy (Kenya) Mater Misericordiae Hospital (Cause 650 of 2020) [2025] KEELRC 1454 (KLR)[2025] KEELRC 1454 (KLR)16 May 2025applied
Cite this brief
#Cite this brief
Caselaw, "Kamau v Cleanshelf Supermarket Limited (Cause 662 of 2020) [2024] KEELRC 1548 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1548/eng@2024-06-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.