https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2343

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **CAUSE NO. 92 OF 2020** *(Before D. K. N. Marete)* **KENYA PLANTATION & AGRICULTURAL WORKERS UNION .................. CLAIMANT** **VERSUS** **DEL MONTE (K) LIMITED ................................................................................ RESPONDENT** **JUDGMENT** This matter is originated by way of a Memorandum of Claim dated 31st January, 2020 and filed on 17th February, 2020. The issue in dispute therein is cited as; *Unlawful, unfair and/or illegal termination of Mr. Patrick Ndungu* The Respondent in a statement of Response dated 30th April, 2020 denies the claim and prays that it be dismissed with costs. The claimant’s opener case is that the Respondent, Del Monte (K) Limited, is a limited liability company registered under the Companies Act, Chapter 486 of the Laws of Kenya, situate at Thika within Kiambu County, and carries on the business of growing flowers sold both locally and internationally. The Respondent is a member of the Agricultural Employers Association and has a valid Recognition Agreement and a Collective Bargaining Agreement (the "CBA") with the Claimant. The dispute before the court concerns the alleged unlawful, unfair and/or illegal termination of the employment of the grievant by the Respondent on 9th May, 2017. The matter was referred to conciliation at a meeting held on 26th September, 2018 before the Ministry of Labour, Thika Sub-County, where the parties failed to agree. A Certificate of Disagreement was thereafter issued on even date and the Claimant subsequently filed the present claim before this court. The Claimant's case is that the grievant, Mr. Patrick Ndungu Kareri, was employed by the Respondent as a general worker from 1991, serving initially as a contractor for 5 years (1991-1995) and thereafter on a permanent basis from 1996 to 2017, giving a total period of service of approximately 27 years. He was attached to the Civil Works/Engineering Department and was earning a basic salary of Kshs. 56,604.00 per month at the time of his dismissal. The Respondent issued the grievant a performance incentive letter on 10th February, 1999 in recognition of his good service. The genesis of the grievant's dismissal is that between 31st March, 2017 and 1st April, 2017, 36 litres of paint (Ivory Emulsion and Soft White) were issued for painting works at House No. SS19 in Imani Estate. The Claimant contends that the paint was issued collectively to a team of seven workers assigned to paint the premises, that the grievant and his partner painted only the outer side of the house using 8 litres of paint, and that the remaining 28 litres were handed over to the lead man on completion of his portion of the work. On 24th April, 2017 the Respondent served the grievant with a Notice to Show Cause alleging that he had loaded unaccounted paint onto a company tractor-trailer and had provided false information to the investigation team. The grievant responded on 25th April, 2017 denying the allegations. He was invited to a disciplinary hearing held on 2nd May, 2017 and was thereafter issued with a summary dismissal letter dated 9th May, 2017 citing his failure to account for 28 litres of paint and not ruling out theft. The Claimant contends that: the grievant was not the custodian of the paint nor tasked with its overall distribution; the Respondent failed to prove on a balance of probabilities that the grievant stole or aided the theft of the paint; no CCTV evidence was tendered no criminal charges were ever preferred against the grievant and the termination was discriminatory, malicious and designed to deny the grievant his terminal dues after 27 years of loyal service. The Claimant relies on the authorities of Industrial Cause 903 of 2012 **Titus Musau Ndivau v Waridi Limited (Ongaya J)**; **Mary Chemweno Kiptui v Kenya Pipeline Company Limited [2014] eKLR (Mbaru J**); and **Walter Ogal Anuro v Teachers Service Commission [2013] eKLR**. She prays as follows; 1. *Pay the grievant gratuity for the years he has served with the Respondent at the rates provided for in the CBA;* 2. *Pay the grievant service pay for the 27 years of service as per the CBA.* 3. *Pay the grievant house allowance from the time of dismissal until the time of jüdgement.* 4. *Pay the grievant monthly salary for a period of twelve 12) months.* 5. *Pay the grievant in lieu of leave for the period dismissed;* 6. *Pay the grievant leave travelling allowance for the period of dismissal;* 7. *Pay the grievant in lieu of notice of termination;* 8. *Pay the grievant damages for unlawful, illegal and unfair dismissal;* 9. *Pay the grievant the cost of the cause;* 10. *Interest on (a), (b), (c), (d), (e), (f) and (g) above;* 11. *Any other relief this Honourable Court deems fit to grant.* The Respondent's case is presented through the statement of Mr. Gerald N. Matoke, Human Resources Manager of Del Monte (K) Limited. The Respondent avers that the grievant was employed in the Engineering Department from 5th February, 1996 as an Artisan Grade 2 (painter) earning Kshs. 54,863.94 per month at the time of his termination on 9th May, 2017. Between 31st March, 2017 and 1st April, 2017, the grievant was personally issued with 36 litres of paint (Ivory Emulsion and Soft White) for painting works at House No. SS19. On 3rd April, 2017, he requested more paint claiming the issued paint had been consumed. An investigation revealed that 28 litres were unaccounted for. Three eyewitnesses - Godfrey Ambuti (DMK6(b)), George Salasia (DMK6(G)) and David Shikuku (DMK6(I)) -- stated that the grievant loaded paint cans onto the company vehicle at the end of the workday, which paint was never accounted for. The grievant initially stated he had consumed all the paint, then changed his account to say he had left the balance in the kitchen of house SS19. The investigation team visited the house and found no paint there. A Show Cause Notice was issued on 24th April, 2017 (DMK1). The grievant responded on 25th April, 2017 (DMK2). An invitation to a disciplinary hearing was issued on 27th April, 2017 (DMK3). The hearing was held on 2nd May, 2017 with the grievant present and accompanied by a fellow employee (DMK5). A summary dismissal letter was issued on 9th May, 2017 (DMK8). The grievant was paid his accrued salary and unutilised leave days upon dismissal. The Respondent contends that the termination was procedurally and substantively fair; that there were reasonable and sufficient grounds to suspect the grievant of theft or misappropriation of company property under Section 44(4)(g) of the Employment Act, 2007 and that the grievant's shifting and contradictory accounts demonstrated dishonesty. This conduct also fell within Section 44(4)(c) for careless performance of duties. The Respondent relies on **Pheoby Aloo Inyanga v Stockwell One Homes Management Limited & Another (Cause No. 1095 of 2018); Kennedy Maina Mirera v Barclays Bank of Kenya Limited [2018] eKLR**; and **Kennedy Nyanguncha Omanga v Bob Morgan Services Limited [2013] KEELRC 810**. The matter came before the court variously until the parties agreed on a disposal of the claim by way of written submissions. These were filed together with witness statements and lists of documents, all of which were adopted as the evidence and submissions of the respective parties in this cause. The issues in dispute therefore are; 1. Whether the termination of the grievant's employment was procedurally fair. 2. Whether the termination of the grievant's employment was substantively fair. 3. What relief, if any, is available to the Claimant. 4. Who bears the costs of this cause. The 1st issue for determination is whether the termination of the grievant's employment was procedurally fair. Section 41 of the Employment Act, 2007 imposes a mandatory procedural obligation on an employer before terminating or summarily dismissing an employee under Section 44(3) or (4). The employer must explain the reason for dismissal in a language the employee understands, allow the employee to be accompanied by a fellow employee or shop floor union representative of their choice and hear and consider any representations the employee may make. The mandatory nature of this provision was affirmed by the Court of Appeal in Prof. **Macha Isunde v Lavington Security Guards Limited [2017] eKLR**, and its application to cases of summary dismissal was expressly upheld in **Pheoby Aloo Inyanga v Stockwell One Homes Management Limited & Another**, supra. On the record before this court, the following procedural steps are established: a Show Cause Notice issued on 24th April, 2017, copied to the Chief Shop Steward consistent with Section 3 of the CBA's Disciplinary Procedure; the grievant's written response on 25th April, 2017; an invitation to a disciplinary hearing issued on 27th April, 2017; the disciplinary hearing held on 2nd May, 2017 with the grievant present and accompanied by a fellow employee as permitted under Section 41(1) of the Act and the CBA; and a summary dismissal letter issued on 9th May, 2017. The Claimant's allegation that the grievant was not given adequate time to prepare does not find support in the record. The grievant responded to the Show Cause Notice the day it was received and the hearing was held one week later. The procedural requirements of Section 41 of the Employment Act, 2007 were substantially complied with. The summary dismissal was procedurally fair. The 2nd issue for determination is whether the termination of the grievant's employment was substantively fair. Section 45(2) of the Employment Act, 2007 requires the employer to prove that the reason for termination was valid, that it was a fair reason related to the employee's conduct, capacity or compatibility, and that the employment was terminated in accordance with fair procedure. Section 43(1) places the burden of proving the reason for termination on the employer. Section 47(5) places the burden of proving unfair termination on the employee, while the burden of justifying the grounds for termination rests on the employer. As held in **Kennedy Maina Mirera v Barclays Bank of Kenya Limited [2018] eKLR**, these provisions must be construed harmoniously: the employee must first adduce *prima facie* evidence of unfair termination, whereupon the burden shifts to the employer to demonstrate a valid and fair reason. The standard applicable under Section 44(4)(g) of the Employment Act, 2007 is not the criminal standard of proof beyond reasonable doubt. It is sufficient that there are reasonable and sufficient grounds for suspecting the employee of having committed a criminal offence against or to the substantial detriment of the employer's property. Applying this standard, the court finds that the Respondent had reasonable and sufficient grounds for suspicion. The grievant himself acknowledged in his Show Cause response (DMK2) that he personally received the paint and used only 8 litres of the 36 litres issued. His initial explanation that he had consumed all the paint was abandoned. His subsequent explanation that he had left the balance in the kitchen of house SS19 was disproved by the committee's inspection, which found no paint there. Three eyewitnesses stated that the grievant loaded paint cans onto the company truck. These combined circumstances constituted reasonable and sufficient grounds for suspicion of theft or misappropriation of company property. The Claimant's contention that the paint was issued to a team of seven workers is materially weakened by the grievant's own Show Cause response which acknowledges personal receipt and personal use of only 8 litres. The absence of CCTV evidence and criminal prosecution does not foreclose a finding under the employment standard where eyewitness and documentary evidence are available. As cautioned in **Titus Musau Ndivau v Waridi Limited,** **Industrial Cause 903 of 2012**, it is not enough to merely allege gross misconduct and remove an employee without evidence. On the facts of this case however, there were three eyewitnesses, a failed site inspection, and the grievant's own admissions and contradictory accounts. This is not a case of bare allegation. This court has weighed the grievant's 27 years of service, his clean disciplinary record, and the performance recognition of 1999 as significant mitigating circumstances. These speak well of the grievant. However, the conduct attributed to him -- the unexplained disappearance of 28 litres of company paint, two contradictory explanations, and the observed loading of unaccounted paint cans onto a company vehicle -- goes to the fundamental foundation of the employment relationship, honesty and trust. Length of service, while commendable, does not insulate an employee who has fundamentally breached the trust reposed in him by the employer. This court therefore finds that the Respondent had valid and fair grounds for the summary dismissal of the grievant under Section 44(4)(g) of the Employment Act, 2007 and Section 11(c) of the Collective Bargaining Agreement. The Claimant has not discharged the burden of proving on a balance of probabilities that the termination was unlawful, unfair or unjustified. The summary dismissal was substantively fair. The 3rd issue for determination is what relief, if any, is available to the Claimant. Having found the dismissal to be both procedurally and substantively fair, the Claimant is not entitled to compensation under Section 49(1)(c) of the Employment Act, 2007, nor to pay in lieu of notice, nor to damages for wrongful dismissal. The CBA's service gratuity clause at Section 8(h) expressly limits entitlement to cases of termination other than for gross misconduct; the grievant is accordingly not entitled to service gratuity. On the issue of service pay, the evidence before the court indicates that the grievant was a contributing member of the National Social Security Fund. Consistent with **Kennedy Nyanguncha Omanga v Bob Morgan Services Limited [2013] KEELRC 810**, an NSSF-contributing employee is not entitled to separate service pay. The claims for house allowance, leave travelling allowance, and 12 months' compensation are all predicated on a finding of unfair termination which this court has not made. The Respondent's dismissal letter confirms that accrued salary for days worked and unutilised leave days were paid. The Claimant has adduced no evidence to contradict this. No further award is made under these heads. The 4th issue for determination is who bears the costs of this cause. Having regard to all the circumstances, each party shall bear its own costs. I am therefore inclined to dismiss the claim and as such, do so. The summary dismissal by the Respondent on 9th May, 2017 is found to have been both procedurally and substantively fair. The Claimant's suit is accordingly dismissed with each party bearing its own costs. Delivered, dated and signed this **29th** day of **July** 2026. **D. K. Njagi Marete** **JUDGE** **Appearances:** 1. Mr. Owino for the claimant union. 2. Mr. Ngure holding brief for Uvyu instructed by Uvyu & Company Advocates for the Respondent.