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ELRCPartially AllowedNot stated in judgment

Gitau v Timaflor Limited (Cause 5 of 2024) [2025] KEELRC 1369 (KLR)

Employment and Labour Relations Court
9 May 2025
4,774 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a fast-tracked dismissal unfair even though one misconduct charge was proved, awarding the employee compensation offset by a partial counterclaim.

What this practically means

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Executive summary

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The claimant, employed from 2011 and promoted to Head of Stores, was summarily dismissed on 16 June 2023 after a disciplinary hearing on seven charges: failure to account for six unserviceable energizers, irregular fuel issuance on three occasions, a polythene stock deficit, failure to report theft by the security manager, and soliciting money from a supplier. The court found that only one charge - unauthorised issuance of 400 and 600 litres of diesel to a drill compressor after drilling works had ended in January 2023 - was substantiated as a valid reason. Procedurally, the process was held too fast to be fair: the claimant was suspended on the day he reported from leave, given a show cause letter the next day, and heard two days later without access to stores, staff or key documents. Relying on section 45 of the Employment Act and following Donald Odeke v Fidelity Security Limited, the court declared the dismissal unfair and unlawful. It awarded one month's salary in lieu of notice (Kshs.117,812), six months' gross salary as compensation (Kshs.706,872) and 26 leave days (Kshs.95,871.55), totalling Kshs.920,555.55. Severance pay and the discrimination claim were declined. On the counterclaim of over Kshs.5.7 million, only Kshs.770,777 was proved (the two unauthorised fuel issues and the admitted company loan); the Sacco loan claim was referred to the Sacco forum. The net award of Kshs.149,778.55 carries interest from judgment and is subject to statutory deductions, with each party bearing 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 dismissal of the claimant was unfair and unlawful
  2. 2.Whether the claimant is entitled to the reliefs sought
  3. 3.Whether the respondent's counterclaim is merited

Key legal issues

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01

Validity of reasons for dismissal

Holding

Only one of seven charges (unauthorised issuance of 1,000 litres of diesel to the drill compressor) was substantiated and amounted to a valid reason

Reasoning

The court examined each charge. The energizer and polythene loss charges failed for want of evidence and an alternative finding of theft by the security head; the fuel delivery charge failed as delivery was proved; the solicitation charge failed as the supplier was unnamed and did not testify. Only the unauthorised issuance of 400 and 600 litres after drilling works ended was proved by the respondent's evidence.

p. 7
02

Fairness of procedure

Holding

The disciplinary process was too fast to be fair; dismissal was procedurally unfair

Reasoning

The claimant was suspended on the day he reported from leave, investigated and issued a show cause letter the next day, and heard two days later while on suspension with no access to stores, employees or key documents (energizer records and the accuser's particulars). Time and access constraints made adequate preparation of his defence impossible.

p. 8
03

Quantum of reliefs and counterclaim set-off

Holding

One month's notice, six months' compensation and 26 leave days awarded; partial counterclaim allowed; balance set off

Reasoning

Notice pay of Kshs.117,812 and compensation of six months (Kshs.706,872) reflected the 11 years of service but the claimant's contributory misconduct. Unrebutted leave claim computed at Kshs.95,871.55. Counterclaim allowed only for the two unauthorised fuel issues and the admitted company loan, totalling Kshs.770,777, set off against the award.

p. 8

Legal principles established

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  • Employer bears statutory burden to prove both a valid reason and fair procedure for termination under section 45(2) of the Employment Act
  • Failure by an employee to protest an unfair disciplinary process does not immunise the unfair process; the employer must act fairly at all times

Court orders

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  1. 1.Declaration that the claimant's dismissal was unfair and unlawful
  2. 2.Payment of Kshs.920,555.55 less Kshs.770,777 = Kshs.149,778.55 to the claimant
  3. 3.Interest at court rates from the date of judgment
  4. 4.The award is subject to statutory deductions
  5. 5.Each party to bear own costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (original claim; specific constitutional provision not cited)

Relief refused

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Severance pay

Employment was not terminated through redundancy

p. 8

General damages for discrimination

Lack of evidence

p. 8

Sacco loan recovery on counterclaim

No nexus demonstrated between the unnamed Sacco loan and the case; parties referred to the relevant forum

p. 9

Counterclaim for polythene rolls, old energizers and the 9 February 2023 diesel

Loss not proved; fuel shown to have been delivered

p. 9

Costs

Each party to bear own costs because both sides succeeded in their claims

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.

I hold that the dismissal of the claimant on 16th June 2023 was unfair and unlawful within the meaning of section 45 of the Employment Act.
p. 8Unfair termination
I agree with the claimant that the disciplinary process was done too fast to be fair.
p. 7Fair procedure
An employer carries a legal duty to act fairly at all times and the employee has no obligation to guide the employer on how to conduct internal proceedings in order to avoid liability.
p. 8Employer's duty of fairness
Each party to bear own costs because both sides succeeded in their claims.
p. 9Costs order
The claimant is awarded interest at court rates from the date of the judgment because the award was largely a discretionary award of compensation.
p. 9Interest

Issues in the judgment

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minor

Judgment first refers to 'three lost energizers' in the claimant's evidence while the charge and findings concern six missing energizers

minor

Counterclaim arithmetic in para 65 refers to the 9 February 2023 fuel of Kshs.65,600 as both declined and then granted for 14 February 2023, creating ambiguity

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, "Gitau v Timaflor Limited (Cause 5 of 2024) [2025] KEELRC 1369 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1369/eng@2025-05-09

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