https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2215

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT** **NAIROBI** (ON Makau J on 30th July 2026) **CAUSE NO. E386 OF 2023** **NANCY NDUTA MUNENE.........................................CLAIMANT** **-VERSUS-** **MAJID AL FUTTAM HYPERMARKETS LTD T/A** **CARREFOUR SUPERMARKET................................RESPONDENT** **JUDGMENT** **Introduction** 1. The Claimant was employed by the Respondent as a Cashier until 24th February 2023 when she was summarily dismissed for mishandling a customer. By a Statement of Claim dated 27th April 2023, the Claimant sued the Respondent seeking the following reliefs:- 2. ***A declaration that the summary dismissal of the Claimant by the Respondent had no valid grounds.*** 3. ***A declaration that the Respondent did not follow the proper procedure in summarily dismissing the Claimant.*** 4. ***One month salary in lieu of notice of termination.*** 5. ***Service pay at 15 days per year worked.*** 6. ***Damages for unfair termination.*** 7. ***A Certificate of Service.*** 8. ***Costs of this suit.*** 9. ***Interest on c, d, e and g above at court rates.*** 10. ***Any other relief that the court may deem fit to grant.*** 11. The Respondent filed a Statement of Response dated 10th July 2023 admitting that it had employed the Claimant but denied the alleged unfair termination. It averred that the termination was grounded on valid reasons and it was done in accordance with fair procedure. Therefore it prayed for the suit to be dismissed with costs. **Evidence** 1. The Claimant testified as CW1 and adopted her statement dated 27th April 2023 as her evidence in chief. She also produced 8 documents as exhibits to support her case. 2. In brief, her evidence was that she was employed by the Respondent on 14th October 2019 as a Merchandiser for a monthly salary of Kshs. 27,000 inclusive of Housing Allowance with effect from 1st May 2021. She was promoted to the position of Cashier and her gross salary was increased to Kshs. 35,222. The promotion was due to her excellent performance of her duties. 3. On 30th January 2023, she was on duty at counter No. 2, an Express Counter for less than ten (10) items per customer. At around 6:45pm, a customer by the name Carol Mwaura approached the Claimants counter for billing with more than 10 items but she advised the customer to proceed to a regular counter. The customer was not pleased and started to insult her and causing commotion in the supermarket. 4. To save the situation the Claimant proceeded to serve her but the customer continued to insult her. Due to the small size of the express counter that could not accommodate all the goods, she decided to put the scanned items in a trolley to create room for more items. Again, the customer was not happy and threw a shopping bag at her face and the straps bruised her eyes. The customer continued to insult her calling her a prostitute and demeaning her job. 5. All through she remained silent, and continued to scan the remaining items from the trolley. The customer pushed the trolley away and physically assaulted her by slapping her across the face so strongly that she got disoriented. For a moment she lost hearing sense, was shocked and embarrassed. In the process she placed the items she was holding on the floor, including Manji customers Biscuits and the shopping bag. 6. During the said commotion, no Manager supervisor or superior management staff assisted her. Her counter had no panic button like other counters. After the incidence, she made a report at Parklands Police Station and went to Uthiru Hospital for treatment. The same day, the Respondent’s Human Resource Manager called her to the office and tried to influence her not to press charges against the customer as that may tarnish the image of the Respondent. He even promised huge compensation for the incidence, costs incurred in the treatment and promotion. 7. She stated that the employer had duty of care and to ensure the welfare of all employees but it failed in his case. 8. She took sick off from 31/1/2023 to 5/2/2023 and when she reported back on 6th February 2023 the employer admonished and harassed her continuously causing her mental anguish. 9. On 10th February 2023, she was served with a show cause letter asking her to explain the incidence of 30th January 2023 and she responded on 13th February 2023. On 14th February 2023, she received a letter inviting her to view CCTV footage on 13th February 2023 but she was not shown. She attended disciplinary hearing on 16th February 2023 and requested to be furnished with the CCTV footage but it was declined. Her witnesses were not allowed into the hearing and when they finally got in they were not allowed to say anything and no eye witnesses attended the hearing. 10. On 20th February 2023 she received a summary dismissal letter alleging gross misconduct. He contended that the disciplinary hearing was conducted as a lecture where she was blamed, admonished, scolded and belittled. She maintained that she was denied a fair hearing. 11. She prayed for his terminal dues contending that her demand for payment was ignored. She also prayed the reliefs set out in her claim. 12. On cross examination she admitted that she was served with a show cause latter and thereafter attended disciplinary hearing. She admitted that on 15th February 2023 she went to the office to view the CCTV on her altercation with the customer. She admitted that she attended the disciplinary hearing with Kevin Ochieng and Lena Budi as her witnesses. She admitted that the CCTV footage was played during the disciplinary hearing. She also signed the minutes of the hearing without reading because she was just told to sign. 13. She reiterated that after the altercation she reported the matter to the police but when she returned to work she was warned not to press charges against the customer as that would taint the image of the business. 14. She reiterated that she served the customer calmly but admitted that she never packed the items in the customer’s bag. She placed the items in the trolley because she had not finished scanning the items for the customer. Then the customer suddenly slapped her and she placed a packet of Biscuit on the floor. She called the supervisor but her call was not picked. After the slap she called and the supervisor picked the call. 15. She maintains that the customer was wrong. She admitted that in her response to the show cause letter, she stated that the customer disturbed her until she lost concentration. She contended that the employer says that a customer is always right. She admitted that the employer contributed NSSF dues for her. 16. In re-examination she stated that the CCTV footage shown to her was not complete. She maintained that the customer slapped her but she never slapped her back. She maintained that the customer started harassing her when she directed her to a regular counter because the customer was carrying more than 10 items. 17. He contended that after the altercation the two were taken to the company security office where she was pressured to forgive the customer but she refused and went to the police. Thereafter the Respondent asked her to withdrew the charges in exchange of a promotion and payment of her hospital bill by the customer but she declined. 18. She maintained that she had not finished scanning all the items when the customer slapped her causing her to place the packet of biscuit on the floor. She stated that she was scanning and placing the items in the trolley so that after scanning all the items she would then proceed to pack them for the customer. She contended that there are CCTV cameras in the supermarket being viewed by managers in their offices. 19. The Respondent called its Human Capital Manager, Mr. Stanley Chumba as the only witness. He testified as RW1 and adopted a statement dated 21st July 2023 as his evidence in chief. He also produced six (6) documents as exhibits. 20. In brief, he confirmed that the Claimant was employed by the Respondent in October 2019 as Merchandiser and in May 2021, she was promoted to a cashier. On 30th January 2023 she was involved in an incident with a customer she was serving at her express counter which serves customers with not more than 10 items. The customer in issue had more than 10 items in her trolley. 21. He stated that the Claimant scanned the items but she failed to pack the items in customer’s bag or ask for a trolley boy to help pack the items. The customer was unhappy with the services and the two started exchanging words. They thrust the shopping bag to each other as the Claimant refused to pack the purchased items. 22. The Claimant turned to put the items back to the trolley without packing them. At that point, the Claimant placed a box of Manji Biscuits on the floor which is against the Respondents policy on hygiene and food safety. The Respondents policy was that the Claimant should not engage in arguments with a customer but instead escalate the issue to her supervisor. 23. He stated that when the Claimant placed the item on the floor, the customer got agitated and slapped the Claimant. Then the security intervened to separate the Claimant and the customer while another cashier called the supervisor. The Claimant and the customer were taken to a holding room in the premises but later the Claimant reported the matter to the police. 24. He further stated that the Claimant was served with show cause letter on 20th February 2023 and she responded on 13th February 2023. On 14th February 2023, she was invited to a disciplinary hearing on 16th February 2023, and on 15th February 2023 she was invited to view the CCTV footage. 25. The disciplinary hearing proceeded on 16th February 2023 and the Claimant attended with her representative and the committee gave opportunity to make her representation. Thereafter the committee found her guilty of breaching company’s policies and guidelines and recommended for her dismissal. She was found guilty of breaching Respondent’s hygiene and food policy, and also the Respondent’s central cash office procedures contained in Cashier notification dated 23rd October 2022. 26. Finally, he stated that the Claimant was notified of the dismissal vide letter dated 20th February 2023 which notified him of the right of appeal. Thereafter her dues were computed and paid through her Advocate on 24th March 2023. He maintained that the dismissal was lawful and prayed for the suit to be dismissed with costs. 27. On cross examination he admitted that he did not have the CCTV footage in court. He confirmed that the Claimant did not get the CCTV footage but the police took a copy. He maintained that the Claimant violated food and hygiene standards by placing food stuff on the floor. He admitted that the customer slapped the Claimant before placing the Biscuits on the floor. 28. He stated that the Claimant further violated customer care standards by refusing to package her goods in her bag. He contended that the customer placed the bag in the trolley but the Claimant threw the items in the trolley instead of packing them in the bag. He contended that the Claimant had finished scanning the items when the customer gave her the bag for packaging. 29. He admitted that the Claimant’s counter was express meaning that it was for 10 or less items, and she was not supposed to have an assistant to pack the items while she scanned the items. He admitted that there was altercation but he could not tell the words used by the Claimant. He also confirmed that the Claimant never slapped the customer. Finally he admitted that the Claimant went to the hospital. 30. In re examination, he contended that if a customer has more than 10 items, the express counter cashier has the option of directing the customer to a regular counter, or serve her. He contended that once the cashier opts to serve the customer, then he/she must complete the service. **Submissions** 1. After the hearing both sides filed written submissions. The Claimant maintained that his dismissal was not grounded on valid reasons and fair procedure was not followed. She contended that she was the victim of harassment and assault by a customer and as such she was not the wrong doer. She blamed the Respondent’s management and supervisors for neglecting her and failing to protect her at the hour of need. She also faulted the employer for pushing her to withdraw charges against the customer and when she declined she was subjected to disciplinary process. 2. She submitted that the procedure followed to dismiss her was unfair because she was not allowed to view the whole CCTV footage and whatever was used during the disciplinary hearing were just in parts. She further averred that her witnesses were initially not allowed into the proceedings and when she protested, they were let in but not allowed to say anything. Therefore she maintained that the dismissal was unfair and prayed for the reliefs sought including compensation for violation of her constitution right to dignity, fair labour practices and fair administrative actions. 3. The Respondent, on the other hand, submitted that the dismissal was based on valid grounds because the Claimant failed to follow policy in three clear occasions:- 4. When the customer refused to move. 5. When the argument began. 6. Before placing food staff on the floor. 7. It submitted that an employee can simultaneously be victim of misconduct by a third party and be in breach of policy. Further that the existence of one does not legally extinguish the other. It maintained that the Claimants conduct violated Section 44 (4) (c) of the Employment Act and dismissal was justified. 8. It further submitted that fair procedure was followed since the Claimant was served with show cause letter and he responded. She was then given an opportunity to view the CCTV footage before attending the disciplinary hearing. That she was accorded hearing before a committee in company of her representatives. In the end she was found guilty and dismissed. She was also given right of appeal and finally her dues were paid. Therefore it submitted that the Claimant is not entitled to the reliefs sought and prayed the suit to be dismissed with costs. **Analysis** 1. Having considered the pleadings, evidence and submissions, it is fact that the Claimant was employed by the Respondent from October 2019 and summarily dismissed on 20th February 2023. The issues for determination are:- 2. Whether the summary dismissal was unfair and unlawful. 3. Whether the reliefs sought are merited. **Unfair termination.** 1. Section 45 (2) provides that:- ***“(2) A termination of employment by an employer is unfair if the employer fails to prove-*** 1. ***That the reason for the termination is valid;*** 2. ***That the reason for the termination is a fair reason-*** 3. ***Related to the employees conduct, capacity or compatibility; or*** 4. ***Based on the operational requirements of the employer; and*** 5. ***That the employment was terminated in accordance with fair procedure.”*** 6. In **Pius Machafu Isindu vs. Lavington Security Guards Limited [2017] eKLR** the Court of Appeal held, thus: ***“There can be no doubt that the Act which was enacted in 2007, places heavy legal obligations on employers in matters of summary dismissal for breach of employment contract and unfair termination involving breach of statutory law. The employer must prove the reasons for termination / dismissal (Section 43); prove reasons are valid and fair (Section 45) … among other provisions. A mandatory and elaborate process is then set up under Section 41 requiring notification and hearing before termination.”*** 1. In **Postal Corporation of Kenya v Andrew K. Tanui [2019] eKLR** the Court held as follows: ***“Four elements must thus be discernible for the procedure to pass muster:*** ***(i) an explanation of the grounds of termination in a language understood by the employee;*** ***(ii) the reason for which the employer is considering termination;*** ***(iii) entitlement of an employee to the presence of another employee of his choice when the explanation of grounds of termination is made;*** ***(iv) hearing and considering any representations made by the employee and the person chosen by the employee.”*** 1. In view of the above, the main factors to establish in a case for unfair termination are valid reason and fair procedures. In this case the Claimant contends that there was no valid reason for her dismissal and fair procedure was not followed. However the Respondent holds a different view. **Reasons.** 1. Section 43 and 45 of the Employment Act places the burden of proving valid reason on the employer. In this case the Respondent cited the reason for dismissing the Claimant as breach of company policies on food and hygiene, and customer care. It averred that the Claimant mishandled a customer at her counter, and further placed a box of Biscuits on the floor. 2. The Claimant denied the said allegations and averred that she was the victim of assault and harassment by the customer in full glare of CCTV cameras. She averred that she remained silent and continued scanning items as the customer continued insulting her and declaring that a customer is always right. She stated that, she placed the Biscuits box on the floor and lost consciousness after receiving a strong slap from the customer. She explained that the reason why the customer became mad about her is because she directed the customer to a regular counter which deals with more than 10 items. 3. The Respondent did not call any eye witness or produce the CCTV footage for the incident. It follows that the evidence by RW1 is hearsay and cannot impeach the Claimant’s evidence. I believe the Claimants testimony that she was the victim and not the offender. She was on duty manning the express counter which serves customers with less than 10 items, when a rude customer demanded her service. Upon being directed to a regular counter due to the large number of items in her trolley, she was annoyed and started to insult and harass the Claimant. There were cameras in the store but no manager in the surveillance rooms went to protect the Claimant. The security was only deployed after the customer slapped the Claimant. 4. In the circumstances of this case I find that the Claimant did not mishandle the customer, but rather, it is the customer who violated the Claimant’s right to dignity. She never placed the food stuff on the floor deliberately but as a reflex action caused by the sudden physical attack on her by the customer. 5. Consequently, I find and hold that the Claimant did not violate the food and hygiene policy, or the customer care policy. On the contrary it is the employer who violated the Claimants rights under the constitutions and the labour statutes on safe working conditions. Instead of helping her get justice for the attack it demanded that she drops charges against the customer and when she declined it dismissed her. **Procedure.** 1. As regards procedural fairness, Section 41 of the Employment Act provides that:- ***“(1) 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.*** ***(2) 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.”*** 1. In this case the Claimant was served with a show cause letter on 10th February 2023 and responded on 13th February 2023. By a letter dated 14th February 2023 she was invited for a disciplinary hearing on 16th February 2023. The letter also invited her for viewing of the CCTV footage on 15th February 2023. The letter further notified her of the right to representation by another employee of her choice during the hearing. 2. The Claimant attended the disciplinary in the company of two employees. The Claimant made her representations but her companions never said anything. The Claimant told the court that her companions were denied entry to the meeting and when she protested, they were let in but they were denied audience. RW1. The Claimant never called the said employees to confirm that allegation before the court. 3. The Claimant further stated that the whole CCTV footage were not viewed but only some parts and that rendered the hearing unfair. RW1 also did not respond to the above allegation. 4. Having carefully considered the evidence one record. I am satisfied that the procedure followed to dismiss the Claimant was fashioned along the procedure under Section 41 of the Employment Act. The Claimant was served with show cause letter which provided her with an opportunity to defend herself in writing. Thereafter she was accorded a chance to defend herself orally before a disciplinary committee. She was notified of the charges and was allowed to be accompanied by fellow employee of her own choice. 5. The foregoing compliance notwithstanding, I find that the summary dismissal of the Claimant was unfair and unlawful since it was not grounded on valid reason. Section 43 of the Act provides that:- ***“ (1) In any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45.*** ***(2) The reason or reasons for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist, and which cause the employer to terminate the services of the employee.”*** **Reliefs** 1. In view of the forgoing conclusion, I find that the Claimant is entitled to declaration that her summary dismissal was unlawful for want of valid reason. Flowing from the said conclusion I find that the Claimant is entitled to salary in lieu of notice and compensation for unfair dismissal under Section 49(1) of the Employment Act. 2. Her employment contract provided for termination notice of one month and therefore I award her Kshs. 35,333 which was her gross monthly salary after her promotion vide the letter dated 1st May 2021. 3. As regards compensation for unfair dismissal, I have taken into account her service period of about 2 years and the fact she did not cause her dismissal through misconduct. She was only a victim of an unjustified attack and never retaliated Considering all the circumstances under which the dismissal arose, especially the failure by the Respondent to protect her from the rogue customer, I award her six months gross salary compensation for the unfair termination being Kshs. 35,222 x 6 = Kshs. 211,332. 4. Finally, the Claimant prayed for certificate of service and I grant it since it is a right under Section 51 of the Employment Act. **Conclusion.** 1. I have found that the dismissal of the Claimant was unfair since it was not grounded by a valid reason. I have further found that she was entitled to some of the reliefs sought. Consequently, I enter Judgment for the Claimant as follows:- 2. Declaration that the summary dismissal of the Claimant was not grounded on valid reason. 3. Notice ………………………..Kshs. 35,222 4. Compensation……………….Kshs. 211,332 **Total………………………....Kshs. 246,554** 1. Certificate of service. 2. Costs and interest at court rate from the date of the Judgment. 3. The award of damages is subject to statutory deductions. **DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 30TH DAY OF JULY, 2026.** **ONESMUS MAKAU** **JUDGE** **Appearance:** Mwangi for Ndegwa for Claimant Mwangi for Makori for Respondent