https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2289

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAIROBI ELRC CAUSE NO. E541 OF 2022 (Before Hon. Lady Justice Anna Ngibuini Mwaure) CORNELIUS BULIMO……………………….……. …...CLAIMANT VERSUS MAJID AL FUTTAIM HYPERMARKETS LIMITED………………………...RESPONDENT JUDGMENT Introduction 1. The Claimant commenced this suit vide memorandum of claim dated 22nd July 2022 and filed Amended Statement of Claim dated 31st October 2025 seeking the following orders that: a.A declaration that the Claimant’s decision to terminate the Claimant’s employment was unlawful and unfair. b.Compensation damages at 12 months’ salary for the unlawful and flawed termination being Kshs. 205,000 x12 months at Kshs.2,460,000/=. c. Rightfully earned bonus for the year Jan- Dec 2021-which was 75% of salary amounting to Kshs.153,750/=. NAIROBI CAUSE NO. E541 OF 2022 JUDGMENT 1 | P A G E d.Salary up to the time of Termination 1st March to 18th March amounting to Kshs.123,000/=. e.Pending Leave days (10 days) amounting to Kshs. 68,333/=. f. Time Off Holidays worked (9 days) amounting to Kshs. 61,500/= g.Overtime Kshs.2,182,824/= h.Costs of this suit plus interest thereon. i. Any other relief or further order as may be just, expedient and necessary in the circumstances of this suit. Claimant’s case 2. The Claimant avers that he was employed by the Respondent from 15th February 2016 as Section Manager in the Consumer Goods Department at the Karen Hub Store, earning Kshs. 9,000/=. 3. The Claimant avers that he was promoted in December 2018 to Department Head at Two Rivers Lifestyle Store, transferred in January 2021 to Fresh Food Department, and in June 2021 appointed as opening Store Manager for Kisumu branch until his summary dismissal on 18th March 2022. His last salary was a gross of monthly of Kshs.205,000/= NAIROBI CAUSE NO. E541 OF 2022 JUDGMENT 2 | P A G E 4. He avers that his troubles began on 20th August 2021 when, as part of a disciplinary committee, he voted for a warning letter against a colleague contrary to the Area Manager’s expectation of termination. Thereafter, he faced retaliatory actions including staff reductions without target adjustments, a Notice to Show Cause dated 5th November 2021 over hygiene issues while he was on leave, and racially derogatory remarks on 26th November 2021. He was denied COVID-19 leave despite testing positive on 23rd December 2021, coerced into signing a misleading “Final Warning” letter backdated to 16th December 2021, and denied his 2021 bonus. 5. On 18th February 2022, the Claimant avers that he was suspended without reasons, later accused of receiving money from a supplier on 1st and 30th September 2021, and issued a Show Cause Letter on 2nd March 2022. Despite requesting evidence, he was presented only with unsigned excel sheets and excerpts of policy documents. His disciplinary hearing on 5th March 2022 was procedurally flawed, and on 18th March 2022 he was summarily dismissed. 6. The Claimant contends that the disciplinary process was malicious, discriminatory, and contrary NAIROBI CAUSE NO. E541 OF 2022 JUDGMENT 3 | P A G E to the Employment Act, 2007, company policy, and principles of natural justice. Respondent’s amended statement of response The Respondent opposed the memorandum of 7. claim via amended statement of response dated 13th November 2025. 8. The Respondent denies most of the Claimant’s allegations and avers that his dismissal was lawful. 9. The Respondent acknowledges that the Claimant was employed on 12th February 2016 and last served as Store Manager at the Kisumu Megastore, but disputes his diligence. 10.The Respondent avers that on 29th October 2021, a spot check revealed expired products in chillers, leading to a Notice to Show Cause dated 5th November 2021, a disciplinary hearing on 10th December 2021, and a final warning letter dated 16th December 2021, later overturned on 18th March 2022. Separately, investigations revealed that the Claimant received Kshs.20,000/= each on 1st September 2021 and 30th September 2021 from supplier Peter Mbuis, contrary to the company’s code of ethics. NAIROBI CAUSE NO. E541 OF 2022 JUDGMENT 4 | P A G E 11. The Respondent avers that the Claimant was suspended on 18th February 2022, interviewed on 22nd February, issued a Show Cause Letter on 24th February, and attended a disciplinary hearing on 5th March 2022. His suspension was extended on 7th March 2022, and he was summarily dismissed on 18th March 2022 for gross misconduct under section 44 of the Employment Act. 12. The Respondent avers that he was afforded due process, including an appeal hearing scheduled for 30th March 2022 which he failed to attend, and that he was paid his terminal dues. 13. The Respondent denies claims of discrimination, denial of COVID-19 leave, bonus entitlement, overtime, or unfair treatment, and prays that the Claimant’s suit be dismissed with costs. Claimant’s reply to the amended response to the amended memorandum of claim 14. The Claimant, in reply to the Respondent’s Amended Statement of Response dated 13th November 2025, reaffirms his Amended Statement of Claim of 31st October 2025 and denies the allegations raised. NAIROBI CAUSE NO. E541 OF 2022 JUDGMENT 5 | P A G E 15. The Claimant maintains that he served diligently and that the disciplinary measures, including the hygiene case of 29th October 2021 and his dismissal on 18th March 2022, were retaliatory and orchestrated by the Area Manager, Ms. Aurelie Boucher. 16.The Claimant emphasizes that her actions, such as staff reductions, ambush visits, racially charged insults, denial of COVID-19 leave in December 2021 despite a companywide directive treating positive cases as COVID leave, and exclusion from the 2021 bonus review, formed a deliberate campaign of victimization. 17. The Claimant denies responsibility for expired products, citing the Respondent’s memo of 30th March 2021 which placed responsibility on Section Managers, and challenges the fairness of both disciplinary processes. He disputes the validity of evidence regarding alleged payments from supplier Peter Mbui, noting that no authenticated M-Pesa records, supplier statements, or documentation from the Directorate of Criminal Investigations (DCI) were ever produced, nor was he summoned by police. NAIROBI CAUSE NO. E541 OF 2022 JUDGMENT 6 | P A G E 18. The Claimant reiterates his claim for overtime and asserts that the Respondent’s response consists of mere denials, urging the Court to grant the reliefs sought in his Amended Statement of Claim. Claimant’s evidence in court 19.CW1, the Claimant, adopted his witness statement dated 31st October 2025 together with the bundle of documents dated even date marked as exhibits 1 to 34 respectively and replied to the Respondent’s amended statement of response dated 13th November 2025 as his evidence in chief. 20.In cross-examination, CW1 stated that as of February 2022 he was the Store Manager of Kisumu Megastore, the senior-most employee, interacting with staff, customers, and suppliers. He confirmed receiving a Notice to Show Cause alleging he had received money from supplier Peter Mbui of Miss Beauty Supplies but denied the allegation, insisting the company’s conflict policy referred to personal gains, which he did not obtain. He maintained that during the disciplinary hearing he denied receiving money, was dismissed solely on the basis of alleged M-Pesa transactions, and was not paid his final dues, including leave and holiday arrears. He explained that he applied for leave through the NAIROBI CAUSE NO. E541 OF 2022 JUDGMENT 7 | P A G E system, subject to approval by the Area Manager, and was on leave from 8th to 20th February 2022 when he was summoned. He added that although employees were paid overtime, he was not, despite working long hours. 21.In re-examination, CW1 reiterated that he was the senior employee reporting to the Area Manager, worked from 7:30 a.m. to 6:30 p.m. and often beyond, and that his duties were governed by company rules and policies on supervision. Respondent’s evidence in court 22.RW1, Daniel Ponde, the Respondent’s Human Capital Business Partner, adopted his witness statement dated 19th December 2023 together with the list of documents dated 6th September 2022 marked as exhibits 1 to 21 as his evidence in chief. 23. RW1 testified that although CW1 was required to work eight hours a day, as Store Manager he had flexibility to manage his schedule, receiving one half-day and one full day off each week, as well as one weekend off per month, to compensate for extra hours worked. 24. In cross-examination, RW1 confirmed that CW1 had participated in disciplinary processes involving NAIROBI CAUSE NO. E541 OF 2022 JUDGMENT 8 | P A G E employees such as Abraham and Everest Bulinda, though they were not under his supervision. He stated that CW1 was issued with a Notice to Show Cause dated 5th November 2021 for failing to remove expired goods, following a memo on waste management dated 4th December 2021. RW1 explained that reminders were regularly issued, including a memo dated 4th November 2024, and that the incident prompting the notice occurred on 29th January 2021. He added that CW1 was given a final warning after the 2021 disciplinary hearing, noting that a final warning could be issued even without prior infractions of the circumstances justified it, and emphasized that the company had a grievance policy. RW1 further stated that CW1 was suspended for 30 days after a notice dated 29th October 2021, though policy allowed three days, and that the matter was referred to the DCI without CW1 being informed. He confirmed CW1 requested documentation by email, which was later provided, and noted that CW1 did not lodge a formal discrimination complaint. NAIROBI CAUSE NO. E541 OF 2022 JUDGMENT 9 | P A G E 25. In re-examination, RW1 clarified that CW1’s dismissal was based on receiving money from a supplier, which breached the company’s code of conduct and amounted to gross misconduct, while the issue of wastage of goods was not the reason for termination. 26.The court directed parties to file their respective written submissions even though the court did not see any submissions from the Claimant. Respondent’s submissions 27. The Respondent submitted that the Claimant’s summary dismissal on 18th March 2022 was lawful, fair, and procedurally compliant under the Employment Act, 2007. The Respondent maintains that investigations, conducted with police assistance, confirmed that the Claimant received Kshs.40,000/= from supplier Peter Mbui on 1st and 30th September 2021, in breach of the Code of Ethics and his employment contract, thereby creating a conflict of interest. Relying on sections 43 and 45 of the Employment Act, the Respondent submits that it had valid grounds for dismissal, noting that under section 47(5) of the Employment Act the burden of proving unfair termination lies with the employee. The NAIROBI CAUSE NO. E541 OF 2022 JUDGMENT 10 | P A G E Respondent relied on the case of CFC Stanbic Bank Limited v Danson Mwashako Mwakuwona [2015] KECA 919 (KLR), where the Court of Appeal held that courts should not substitute their views for those of a reasonable employer, and Robert Kenga & another v Ocean Sports Resort [2015] KEELRC 1315 (KLR), where the court held that: “the standard of proving the reason for termination was a subjective test. It is all about what the employer personally and genuinely makes out of the conduct of the employee. Even if another employer would not have dismissed the Claimants for their conduct, it does not matter here.” 28. On procedure, the Respondent relied on section 41 of the Employment Act, noting that the Claimant was suspended on 18th February 2022, issued a show cause letter on 24th February, responded on 26th February 2022, and attended a disciplinary hearing on 5th March 2022. He was dismissed on 18th March 2022 and invited to an appeal hearing on 30th March 2022, which he failed to attend. In Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd [2013] KEELRC 920 (KLR), the Respondent NAIROBI CAUSE NO. E541 OF 2022 JUDGMENT 11 | P A G E stresses that the Claimant was informed of the charges, given documents, and afforded an opportunity to defend himself. In Barngetuny & another v Teachers Service Commission & another [2015] KECA 82 (KLR) held that: “If an employer has conducted disciplinary proceedings fairly in accordance with statutory or laid down regulations, a court of law should exercise great caution before it interferes with the employer’s findings.” 29. The Respondent submitted that it dismissed the Claimant’s complaints about earlier disciplinary processes, alleged victimisation by the Area Manager, denial of COVID-19 leave, and exclusion from the 2021 bonus, arguing these were either unsupported or irrelevant to the dismissal. It notes that COVID-19 leave was properly treated as sick leave under company policy, and that the Claimant was ineligible for bonus after dismissal. On overtime, the Respondent asserts that managerial staff were not entitled to overtime pay, instead receiving weekly days off. 30. In conclusion, the Respondent submitted that the dismissal was justified, procedurally fair, and supported by law and precedent, urging the Court to dismiss the claim with costs. NAIROBI CAUSE NO. E541 OF 2022 JUDGMENT 12 | P A G E 31. At the time of writing judgment, the Claimant had not filed their written submissions. Analysis and determination 32. The court has considered the pleadings and submissions for the record; the issues for determination are as follows: i. Whether the Claimant was unfairly dismissed by the Respondent. ii. If (i) above is in the affirmative, whether the Claimant is entitled to costs. iii. Who should bear the costs of the suit. 33. For termination to be fair, the twin principles set out in sections 41 and 43 of the Employment Act being procedural fairness and substantive justification. In Walter Ogal Anuro v Teachers Service Commission [2013] KEELRC 386 (KLR) the court held that for a termination to pass the fairness test, there must be both substantive justification and procedural fairness. Substantive justification has to do with the establishment of a valid reason for the termination while procedural fairness addresses the procedure adopted by the employer in effecting the termination. NAIROBI CAUSE NO. E541 OF 2022 JUDGMENT 13 | P A G E 34. In Mary Chemweno Kiptui v Kenya Pipeline Company Limited [2014] KEELRC 905 (KLR) and Loice Otieno V Kenya Commercial Bank Ltd [2013] KEELRC 271 (KLR), the courts held that substantive justification and procedural fairness require that the employer has a lawful reason for disciplinary action, and the adopted procedure must be fair, just, and lawful. 35. In this instant case, the Claimant was first employed by the Respondent as a Section Manager earning Kshs.9,000, later promoted in December 2018 to Department Head at Two Rivers Lifestyle Store, transferred in January 2021 to the Fresh Food Department, and in June 2021 appointed as opening Store Manager for the Kisumu branch until his summary dismissal on 18th March 2022, by which time he earned a gross monthly salary of Kshs.205,000/=. His first disciplinary matter arose from expired products dated 22nd, 27th, and 28th October 2021 that had not been disposed of in accordance with the company’s waste management policy. He was issued a show cause letter on 5th November 2021, responded on 10th November, and after a disciplinary hearing was given a final warning letter dated 16th December 2021. NAIROBI CAUSE NO. E541 OF 2022 JUDGMENT 14 | P A G E 36.Subsequently, he was issued with another show cause letter dated 24th February 2022 following investigations that alleged he had received Kshs.40,000/= from Miss Beauty Company, owned by Mr. Peter Mbui on two occasions. He responded on 26th February 2022, and a disciplinary hearing was conducted, culminating in his dismissal on 18th March 2022. His appeal was heard, but the decision was upheld. The Respondent maintained that the dismissal was lawful, overriding the earlier final warning. 37.The cardinal issue is whether the Respondent had a valid reason to terminate the Claimant and that is what is regarded as substantive justification in the decided case laws. The reasons in the letter of dismissal by the Respondent dated 18th March 2022 was that Claimant received money from the Respondent’s supplier Mr. Peter Mbui. The two transactions were from Peter Mbui’s telephone number 0722745535 for Kshs.20,000/= paid on 30th September 2021 and 1st September 2021 respectively. The Claimant during investigations did not deny receipt of the money but the insisted on asking for certified copies of the Mpesa statements duly NAIROBI CAUSE NO. E541 OF 2022 JUDGMENT 15 | P A G E certified by Safaricom. But he did not expressly deny he received the payment. He also said he knew Mr. Mbui in his personal capacity and that was it. Mr. Mbui also said he gave the money on “Friendly basis.” 38.The Claimant clearly breached the code of ethics in accepting money from the Respondent’s supplier. The Claimant’s employment contract executed and dated 12th February 2016 specified that an employee must disclose to the company in writing any existing or potential circumstances that could lead to conflict of interest on their part. Claimant had worked for the Respondent for several years and knew the Code of Ethics and policies. He failed to adhere to the same. 39.The Code of Ethics provide that an employee must not derive personal benefit from a relationship with an employer. There is no other way that can be interpreted of the money the Claimant received from Mr. Mbui Director of Miss Beauty Company Limited a supplier of Cosmetics to the Respondent. The Claimant at NAIROBI CAUSE NO. E541 OF 2022 JUDGMENT 16 | P A G E the same time was the Respondent’s Store manager. 40.The court finds the employer had a valid reason as per his perception to find the Claimant was in breach of the company’s Code of Ethics and his own Employment contract. In the case of Robert Kenga & Another -VS- Ocean Sports Resort (2015) eKLR the court held that; “the standard of proving the reason for termination was a subjective test. It is all about what the employer personally and genuinely makes out of the conduct of the employee. Even if another employer would not have dismissed the Claimants for their conduct, it does not matter here.” 41.In view of the foregoing, the court is satisfied the Respondent provided valid reason in dismissing the Claimant as provided in Section 45 of the Employment Act. Also, Section 47(5) of the Employment Act provide that the employer must satisfy the grounds for termination or wrongful dismissal of the employee. The court finds the Respondent passed the test of substantive justification and procedural fairness as set out clearly in the case of WALTER NAIROBI CAUSE NO. E541 OF 2022 JUDGMENT 17 | P A G E ANURO OGAL -VS- TEACHERS SERVICE COMMISSION (2013) eKLR where the court held; “For termination to pass the fairness test it ought to be shown that there was not only substantive justifications for termination but also procedural fairness.” 42.Equally, the Respondent adhered to procedural fairness as set out in Section 41 of the Employment Act. The Claimant was issued with a show-cause letter, investigations were conducted, he was invited to a disciplinary hearing, and later dismissed. His appeal was considered and upheld. The Court holds that the Respondent had justified the termination under section 47(5) of the Employment Act, and therefore the dismissal was proper. The Claimant was informed to provide his witness but he did not opt to do so. He participated in the proceedings but did not participate in the appeal despite being invited to do so. 43. As set out in the case of Anthony Mkala Chitavi v Malindi Water Company Ltd [2013] eKLR “The ingredients of procedural fairness as I understand it within the Kenyan situation is that the employer should inform the employee as to what charges the NAIROBI CAUSE NO. E541 OF 2022 JUDGMENT 18 | P A G E employer is contemplating using to dismiss the employee. Secondly, it would follow naturally that if an employee has a right to be informed of the charges he has a right to proper opportunity to prepare and to be heard and to present a defence/state his case in person, writing or through a representative or shop floor union representative if possible. Thirdly if it is a case of summary dismissal, there is an obligation on the employer to hear and consider any representations by the employee before making the decision to dismiss or give other sanction.” 44. The court is satisfied the Respondent complied with the above requirements. 45. Section 41 of Employment Act provides as follows: “Subject to section 42 (1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation. NAIROBI CAUSE NO. E541 OF 2022 JUDGMENT 19 | P A G E Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44 (3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1) make.” 46. Without belabouring the point any more, the court having considered the pleadings, submissions and caselaws is persuaded the Respondent proved a case of lawful and fair termination against the Claimant and he complied with the provisions of Sections 41, 43, 45(2) and 47(5) of the Employment Act. The Claimant’s case is therefore dismissed. 47. Each party will meet their respective costs of the suit. 48. The Respondent should only pay the Claimant his lawful terminal dues if not already paid but if paid then the case stands closed. The dues admitted by the Respondents were- 1) Prorated gross salary for days worked up to and including 18th March 2022 NAIROBI CAUSE NO. E541 OF 2022 JUDGMENT 20 | P A G E 2) Accrued annual leave and time off (public holidays) balance upto 18th March 2022. 3) Salary in lieu of public holidays (if any) up to 18th March 2022. 4) Less any other monies owed to the company IT IS SO ORDERED. Dated, Signed and Delivered virtually at Nakuru this 31st Day of July, 2026. ANNA NGIBUINI MWAURE JUDGE ORDER In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering NAIROBI CAUSE NO. E541 OF 2022 JUDGMENT 21 | P A G E justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE NAIROBI CAUSE NO. E541 OF 2022 JUDGMENT 22 | P A G E