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ELRCPartially AllowedNot stated in the judgment

Finsbury Trading Limited t/a Super Savers Supermarket v Karisa (Appeal E232 of 2024) [2025] KEELRC 1099 (KLR)

Employment and Labour Relations Court
3 April 2025
1,266 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that an employer can skip formal disciplinary hearings when an employee admits theft, but must still pay for public holidays actually worked.

What this practically means

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Executive summary

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This first appellate judgment of the ELRC at Malindi, delivered by M. Mbaru J on 3 April 2025, arose from Mombasa CMELRC No. E199 of 2021, in which a loader obtained awards for wrongful and unfair termination. The appellant employer argued that the respondent was employed on 2 May 2019 (not May 2018), admitted diverting customer payments and receiving cash contrary to company policy, refunded Ksh. 84,000 via M-Pesa, and was validly summarily dismissed for theft under Sections 44 and 45(2) of the Employment Act after being summoned before the director. The court agreed that the admission of diverting customer payments and the refund constituted sufficient cause for summary dismissal, applying Kennedy Shilaho Shibeka, holding that where theft is admitted the motions of Section 41(2) are unnecessary; notice pay and compensation were therefore unavailable. On terminal benefits, the court found the leave claim unmerited, held the protective security Wage Orders inapplicable to a loader on a written contract, and, applying the rule that parties are bound by their pleadings, awarded only Ksh. 7,284.20 for seven public holidays worked between May 2019 and October 2020. It held the trial court's general award without analysis of each claim irregular and reviewed it. The court set aside the trial judgment save for the public holiday award and ordered each party to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court erred in finding wrongful and unfair termination despite the respondent's admitted theft/gross misconduct
  2. 2.Whether the procedure under Sections 41 and 44 of the Employment Act was satisfied such that summary dismissal was justified
  3. 3.Whether the awards of notice pay and compensation were justified
  4. 4.Whether the claims for annual leave and work during public holidays were proved
  5. 5.Whether the trial court's general award without analysis of each claim was proper

Key legal issues

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01

Whether summary dismissal for admitted theft required full Section 41 procedure

Holding

Admission of diverting customer payments and refunding Ksh. 84,000 was sufficient cause for summary dismissal; notice pay and compensation were unavailable

Reasoning

The respondent admitted being summoned before the director and admitted receiving money from a customer, refunding Ksh. 84,000. Under Section 44 of the Employment Act, theft is gross misconduct justifying summary dismissal. Where theft is admitted, the motions of Section 41(2) are unnecessary; the employer allowed the respondent to make representations before the director.

p. 2
02

Public holiday claims and pleadings

Holding

Only 7 public holidays from May 2019 to October 2020 were awardable, at Ksh. 7,284.20 under the general Wage Order; protective security Wage Orders inapplicable as respondent was a loader on a written contract

Reasoning

Claims from May 2018 (pre-employment) were unjustified. The Memorandum of Claim lacked particulars of public holidays worked except 10 October 2020. The protective security Wage Orders did not apply because the respondent was employed as a loader under a written contract.

p. 3
03

Annual leave

Holding

Leave claim failed; the respondent signed up for leave days and did nothing about not proceeding on leave

Reasoning

Although the respondent signed his annual leave form and was not allowed to proceed on leave, he took no steps about it and cannot later assert the claim on cross-examination.

p. 3
04

Regularity of the trial court's general award

Holding

A general award without analysis of each claim is irregular and was reviewed

Reasoning

The trial court entered judgment as stated on the face of the statement of claim without analysing each head of claim. The appellate court found this irregular and reviewed the judgment, upholding only the public holiday award.

p. 3

Legal principles established

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  • Where there is an admission of theft, the procedural requirements of Section 41(2) of the Employment Act are unnecessary for summary dismissal
  • Unremitted NSSF deductions are due to the statutory body rather than employees, who may only seek service pay
  • Parties are bound by their pleadings; cross-examination cannot cure unpleaded claims

Court orders

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  1. 1.Judgment in Mombasa CMELRC No. E199 of 2021 set aside save for the award of Ksh. 7,284.20 for work during a public holiday
  2. 2.Each party bears its own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Magistrates' Court (ELRC), Mombasa
CMELRC No. E199 of 2021
Jurisdiction invoked
First appellate jurisdiction over Mombasa CMELRC No. E199 of 2021

Relief refused

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Setting aside the entire judgment including the public holiday award

The court found the respondent entitled to Ksh. 7,284.20 for 7 public holidays worked between May 2019 and October 2020

p. 3

Notice pay and compensation for unfair termination

The admitted theft and refund of Ksh. 84,000 justified summary dismissal

p. 2

Costs

Each party bears its costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, judgment in Mombasa CMELRC No. E199 of 2021 is hereby set aside save for the award of Ksh. 7,284.20 for work during a public holiday. Each party bears its costs.
p. 3Final orders
Where there is an admission of theft, the motions of Section 41(2) of the Employment Act are unnecessary.
p. 2Summary dismissal procedure
The judgment of the trial court giving a general award as stated in the claim without an analysis of each claim is, therefore, irregular and is hereby reviewed.
p. 3General awards irregular
Cross-examination cannot cure such without pleading the days at work in the Memorandum of Claim. Parties are bound by their pleadings.
p. 3Pleadings binding parties

Issues in the judgment

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minor

The case number of the present appeal is not stated in the judgment; only the lower court case (Mombasa CMELRC No. E199 of 2021) is identified.

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, "Finsbury Trading Limited t/a Super Savers Supermarket v Karisa (Appeal E232 of 2024) [2025] KEELRC 1099 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1099/eng@2025-04-03

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