Advisory on Termination Procedures – The Case of Kamuri v Cleanshelf Supermarkets Ltd [2025] KEELRC 2278

Case: Kamuri v Cleanshelf Supermarkets Ltd [2025] KEELRC 2278

 Background

The recent decision in Kamuri v Cleanshelf Supermarkets Ltd provides critical guidance on the standards and procedures required for lawful termination of employment, particularly in cases involving poor performance or misconduct.

 Key Findings from the Case

1. Procedural Fairness is Mandatory
   The Court held that even where poor performance is alleged, the employer must comply strictly with Section 41 of the Employment Act. This includes:
• Issuing a written notice to show cause.
• Conducting a disciplinary hearing where the employee can be heard.
• Allowing representation by a colleague or union representative.
• Using a language the employee understands.
2. Objective Performance Evaluation Required
   Allegations of poor performance must be supported by:
• Documented performance appraisals.
• A clear Performance Improvement Plan (PIP).
• Measurable and communicated performance standards.
• A reasonable period (2–3 months) to allow the employee to improve.
3. Unlawful Deductions from Terminal Dues
   Employers may not deduct amounts (e.g., for loans or unreturned property) from an employee’s terminal dues unless:
• There is express written consent from the employee, or
• It is permitted by law or a contractual agreement.
  In Kamuri, deductions for a Sacco loan and unreturned laptop were deemed unlawful due to lack of consent and supporting documentation.
4. Compulsory Leave ≠ Disciplinary Process
   Placing an employee on compulsory leave without initiating a proper disciplinary or performance improvement process was criticised. The Court found this inconsistent with fair procedure.

 Recommendations

Based on the court’s decision, we advise as follows:

1. Strengthen Termination Procedures

• Ensure written documentation for every step of the disciplinary process.
• Maintain records of verbal and written warnings.
• Use show cause notices, disciplinary invitations, and hearing minutes.
• Document all attempts to improve employee performance before termination.

2. Conduct Fair Performance Reviews

• Implement a structured performance appraisal system with objective metrics.
• Introduce a clear PIP process with timelines and review points.
• Ensure performance standards are communicated and acknowledged by the employee.

3. Review Deductions Policy

• Do not unilaterally deduct terminal dues.
• Obtain written consent for deductions related to loans, advances, or property.
• Ensure documentary evidence exists (e.g., loan agreements, asset handover forms).

4. Staff Training and Legal Compliance

• Train HR and supervisory staff on legal requirements under the Employment Act, 2007.
• Seek legal review of termination procedures before executing high-risk dismissals.

 Conclusion

The Kamuri decision reinforces the importance of due process in termination cases. Employers must not only have a valid reason for termination but must also ensure procedural fairness and compliance with statutory obligations.

Failure to do so exposes the employer to substantial financial liability, reputational damage, and protracted litigation.

For further guidance or assistance in reviewing your internal HR processes, please do not hesitate to reach out.

Procedure for Obtaining Letters of Administration in Kenya

Overview

When a person dies intestate (without a valid will), their estate must be administered by a court-appointed personal representative. This is done through the process of applying for letters of administration, which legally authorizes a person (or persons) to manage and later distribute the deceased’s estate in accordance with Kenyan succession law.

Step-by-Step Process

1. Filing the Petition

The process begins with the filing of a Petition for Grant of Letters of Administration Intestate at the High Court (Family Division) or at designated Magistrates’ Courts depending on the value of the estate.

The following documents must accompany the petition:

• Letter from Area Chief confirming the deceased's dependants and next of kin.
• Affidavit in Support (Form P&A 5) detailing the deceased’s assets, liabilities, and dependants.
• Affidavit of Justification of Proposed Administrator(s) (Form P&A 11) showing capacity and suitability.
• Affidavit of Justification by Sureties (Form P&A 12) sworn by two sureties guaranteeing faithful administration.
• Consent to Petition (Form P&A 38) signed by other persons equally entitled to apply for the grant.

2. Gazettement

After filing, a notice is published in the Kenya Gazette to notify the public of the petition.

• A 30-day objection period follows during which any person may file an objection.

3. Issuance of Grant

If no objections are filed, the court will issue the Grant of Letters of Administration.

• This grant allows the administrator(s) to collect and manage the estate but not to distribute it yet.

4. Confirmation of Grant

Under Section 71 of the Law of Succession Act, the administrator must apply for confirmation of the grant after six months.

• A Schedule of Distribution (Form P&A 15) must be filed outlining how the estate will be shared.
• The court must approve the distribution plan, ensuring fairness and compliance with the law.

 Early Confirmation: The court may allow early confirmation in compelling circumstances, such as urgent financial needs or perishable assets.

Key Legal Considerations

• Due Diligence: Administrators must accurately disclose all estate assets and identify all beneficiaries.
• Consent: All beneficiaries or co-petitioners must provide informed consent to avoid future disputes.
• Accountability: Administrators owe fiduciary duties to the estate and may be held personally liable for mismanagement.
• Dispute Resolution: Disputes arising from objections, omission of beneficiaries, or contested distribution are handled through the Family Division of the High Court.

Conclusion

The administration of intestate estates in Kenya is a structured process governed by the Law of Succession Act (Cap 160). Proper compliance with the legal requirements ensures efficient management and fair distribution of the deceased’s estate.

We advise clients to seek legal guidance early in the process to avoid delays, errors, or disputes—especially where the estate involves land, multiple beneficiaries, or complex family dynamics.

For further assistance or to begin the petition process, please contact Us - drop a comment at the "Comment Section" below.