https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1532

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAKURU ELRC CAUSE NO. E003 OF 2025 (Before Hon. Lady Justice Anna Ngibuini Mwaure) KENYA PLANTATION & AGRICULTURAL WORKERS UNION ……….…......… CLAIMANT VERSUS EKATERA (K) LIMITED-LIMURU TEA ESTATE …….…..…………………………….. …..RESPONDENT JUDGMENT Introduction 1. The Claimant commenced this suit via Memorandum of Claim dated 16th January 2025 seeking the following reliefs: 1. A declaration that the dismissal of the grievant is unlawful, wrongful, and unfair in the circumstances. 2.(i) An order compelling the Respondent to reinstate the grievant without loss of benefits. (ii) An order compelling the Respondent to pay the grievant monthly salary for ELRC CAUSE NO. E003 OF 2025 JUDGMENT PAGE 1 OF 27 the entire time she has been out of service 3.If prayer (2) above fails, an order directing the Respondent to pay the grievant as follows: a.Gratuity/Service as provided for in the CBA b.In lieu of notice of termination as provided for in the CBA c. Leave not taken and leave travelling allowance; d.Compensation equivalent to twelve (12) months’ salary for wrongful dismissal e.Damages for unlawful, wrongful, and unfair dismissal; f. Costs of the cause 4.Interest on 2 (ii) or 3 hereinabove at court rates 5.Any other relief this Honourable court may deem fit and just to grant. Claimant’s case ELRC CAUSE NO. E003 OF 2025 JUDGMENT PAGE 2 OF 27 2. The Claimant avers that it enjoys a recognition agreement with the Respondent, pursuant to which the parties have negotiated and concluded Collective Bargaining Agreements regulating the terms and conditions of service. The grievant, Loice Wetaba, a duly registered member of the Claimant union, was engaged by the Respondent in 1996 as a general worker and subsequently redeployed to the position of Quality Analysis Clerk. 3. On 13th February 2023, the Claimant avers that while the grievant was running her errands, she purchased a packet of milk intending to consume it later at work. Upon reporting to duty, she encountered her manager Edith, who raised unrelated complaints about cleanliness of the analysis room. After cleaning and preparing tea samples for visitors, the grievant attempted to drink her milk but was confronted by Tabitha, who suspected it was company property. 4. Subsequently, on 23rd June 2023, the Claimant avers that the grievant was served with a show cause notice alleging breach of the Code of Business Principles. She replied on 26th June 2023, denying wrongdoing and explaining the milk was personally ELRC CAUSE NO. E003 OF 2025 JUDGMENT PAGE 3 OF 27 purchased. A disciplinary hearing followed on 30th June 2023, where no witness testified to theft, and only Tabitha’s statement was presented without corroborating evidence. 5. Despite the grievant 26 years of service, the Claimant avers that she was summarily dismissed on 5th July 2023. The union appealed on 17th July 2023, but the Respondent upheld the dismissal after a hearing on 2nd August 2023. The matter was reported to the Ministry of Labour, and conciliator Jane Waweru recommended payment of terminal benefits plus six months’ compensation for wrongful dismissal. 6. At dismissal, the Claimant avers that the grievant earned Kshs. 23,790/= monthly. The Claimant contends the termination was unlawful, wrongful, and unfair, based on unsubstantiated allegations of theft, absence of evidence linking the milk to company supplies, and inequity in dismissing a long- serving employee without benefits. Respondent’s Response to Memorandum of claim ELRC CAUSE NO. E003 OF 2025 JUDGMENT PAGE 4 OF 27 7. In opposition to the Memorandum of Claim, the Respondent filed a response to the memorandum of claim dated 15th March 2025. 8. The Respondent admits the existence of a recognition agreement and concluded CBAs between the parties, as well as the jurisdiction of the court and absence of any pending dispute. However, it categorically denies all other allegations in the Claimant’s memorandum of claim, insisting that the grievant’s summary dismissal was lawful and justified. 9. The Respondent avers that the grievant breached company policy and contractual obligations under the CBA by being reasonably suspected of stealing milk during the course of her duties as a Quality Clerk. 10. Consequently, the Respondent maintains that the dismissal was well-founded in law, denies the grievant’s entitlement to any of the reliefs sought, and prays that the claim be dismissed with costs. Claimant’s evidence in court ELRC CAUSE NO. E003 OF 2025 JUDGMENT PAGE 5 OF 27 11. CW1, Loice Wateba, the grievant, adopted her witness statement dated 16th January 2025 together with the list of documents dated even date as his witness statement marked as exhibits 1 to 8 as her evidence in chief. 12. CW1 testified that she was engaged by the Respondent in September 1996 and served until September 2023. She stated that her employment was terminated on allegations of theft of a packet of milk. She maintained that the milk in question was hers, having been purchased in town and carried to the factory, and denied any wrongdoing. 13. In cross-examination, CW1 testified that she had worked for the Respondent for 26 years, serving as a Quality Analysis Clerk for five years. In that role, she was trained on company policies and procedures, prepared tea samples, and assisted in tea tasting, which involved the use of milk in a designated tasting room. She stated that employees were not prohibited from carrying food into the room. 14. CW1 stated that she confirmed receipt of a show cause letter dated 23rd June 2023, to which she ELRC CAUSE NO. E003 OF 2025 JUDGMENT PAGE 6 OF 27 responded on 26th June 2023. She was thereafter invited to a disciplinary hearing on 30th June 2023, where she attended with a shop steward. She stated that although her dismissal letter was dated 11th July 2023, she was effectively terminated in September 2023. The allegations concerned a packet of milk, which she maintained was personally purchased on 13th February 2023. 15. CW1 further testified that company milk was provided both for infusion and for workers’ tea, and that she had previously reported missing milk to the shift in charge, Paul Mwangi, though she did not call him as a witness. She added that during investigations, the shift manager subjected her to a search in her private parts, which she later mentioned in her response to the show cause letter. She reiterated that she never stole milk and stated that she was not paid her final dues upon dismissal. 16. In re-examination, CW1 stated that tea tasting was conducted in the quality analysis room, where milk for infusion was supplied in bottles. She explained that employees were permitted to carry food into the room, save for tea from other companies. On ELRC CAUSE NO. E003 OF 2025 JUDGMENT PAGE 7 OF 27 occasions when milk for the shift manager was unavailable, she would report to Paul Mwangi, the shift in charge, who would confirm its status. She emphasized that it was her duty to report to Mwangi and not to Betty, the welfare team leader. 17. She reiterated that she attended the disciplinary hearing accompanied by a shop steward. She further stated that during investigations she was subjected to an inappropriate search, noting that she was a lady. CW1 maintained that she never stole milk and reiterated that she was not paid her terminal dues upon dismissal. Respondent’s evidence in court 18. RW1, Nixon Kipkirui, the Respondent’s lead investigator, adopted his written statement dated 6th May 2025 and list of documents dated 23rd April 2026 marked as exhibits 1 to 10 as his evidence in chief. 19. In cross-examination, RW1 stated that he had served as an investigator for one year. He stated that CW1 was accused of stealing a packet of milk based on a report from the shift manager, though he had never previously received any complaint against her. He acknowledged that milk occasionally went ELRC CAUSE NO. E003 OF 2025 JUDGMENT PAGE 8 OF 27 missing but no investigations or reports had been undertaken in such instances. He added that the matter was referred to the welfare team leader, who reported it after persuasion by CW1. 20. RW1 further stated that two employees, including CW1, worked in the quality analysis room, where tea tasting was conducted. He explained that milk issued for tasting was drawn from recorded batches, though the register was not produced in court. He noted that CW1 claimed to have purchased the milk herself, while Miss Tabitha, the Assistant Production Manager, alleged it was from company supplies, but no evidence was presented to confirm this. 21. He testified that CW1 was not required to declare food brought from outside, and the relevant policy was not before court, though it had been produced during the disciplinary hearing. He acknowledged CW1’s allegation that she was subjected to an inappropriate search, but stated that issue was not part of the proceedings. He confirmed that no witnesses were called at the disciplinary hearing, as he did not consider it necessary. RW1 concluded by ELRC CAUSE NO. E003 OF 2025 JUDGMENT PAGE 9 OF 27 stating that CW1 was paid her terminal dues and formally cleared by the Respondent. 22. In re-examination, RW1 stated that the incident was reported to the welfare team leader after it occurred. He reiterated that while the alleged incident took place in February, CW1 herself reported missing milk in March. He confirmed that CW1 admitted during the disciplinary hearing that milk was issued for tea preparation. RW1 further stated that CW1 did not raise any objection regarding cross-examination of witnesses. He stated that CW1’s payslip reflected payment of her terminal dues. 23. Parties were directed to file their respective written submissions. Claimant’s submissions 24. The Claimant submitted that no batch register, pictorial evidence, or corroborating witnesses were presented, despite the grievant’s unblemished service of over 26 years. It was stressed that the Respondent failed to discharge its burden of proof, invoking the principle that “whoever alleges must prove” under section 107 of the Evidence Act, as affirmed in Kipkebe Limited v Peterson Ondieki ELRC CAUSE NO. E003 OF 2025 JUDGMENT PAGE 10 OF 27 Tai [2016] KEHC 5422 (KLR), where the court cited Susan Mumbi v Kefala Grebedhin HCCC No. 332 of 1993 in support of that proposition. The Claimant argued that the alleged theft of milk was never substantiated, as no batch register, pictorial evidence, or corroborating witnesses were produced, and the grievant consistently explained that the milk was personally purchased. 25. The Claimant maintains that the grievant’s dismissal was based on unsubstantiated allegations of theft of a packet of milk, with no evidence produced to prove it belonged to the Respondent’s supplies. The Claimant argues that the Respondent failed to discharge its burden under sections 43(1), 44, 45, and 41 of the Employment Act, 2007, and disregarded the grievant’s constitutional right to a fair hearing under Article 50 of the Constitution of Kenya. Reliance is placed on Article 4 of the ILO Termination of Employment Convention, 1982 (No. 158), which requires valid reasons for termination. The Claimant also relied on the cases of underscoring ELRC CAUSE NO. E003 OF 2025 JUDGMENT PAGE 11 OF 27 the need for valid reasons and fair procedure: Kenfreight (E.A) Limited v Benson K. Nguti [2016] KECA 409 (KLR), Mrisha v Civicon Limited [2014] KEIC 86 (KLR), Loice Otieno V Kenya Commercial Bank Ltd [2013] KEELRC 271 (KLR), Mary Chemweno Kiptui v Kenya Pipeline Company Limited [2014] KEELRC 905 (KLR), Titus Musau Ndivau & another v Waridi Limited [2012] KEELRC 190 (KLR),which all reaffirm underscoring the need for valid reasons and fair procedure. 26. The Claimant concluded that the Respondent acted maliciously, failed to follow due process and natural justice, and therefore the dismissal was unfair, unjustified, and unreasonable, entitling the grievant to all reliefs sought in the Memorandum of Claim. Respondent’s submissions 27. The Respondent submitted that the Claimant’s dismissal was justified under sections 43(2) and 45(2) of the Employment Act, which require an employer to genuinely believe in the reasons for termination and to prove that such reasons are valid, ELRC CAUSE NO. E003 OF 2025 JUDGMENT PAGE 12 OF 27 fair, and procedurally compliant. The Claimant was accused of attempting to steal milk in violation of the company’s Code of Business Principles and Clause 26(g) of the Collective Bargaining Agreement, which prohibits conduct amounting to a criminal offence against the employer’s property. The Respondent argued that the evidence was led that the Assistant Production Manager allegedly saw the Claimant hiding a packet of milk, which she later claimed was personally purchased, but which the manager asserted belonged to the company’s batch. Witnesses further alleged that milk had gone missing on other occasions when the Claimant was on duty, though no register or corroborating evidence was produced. At the disciplinary hearing, the Claimant admitted she ought to have declared the milk to security but maintained it was her own, and later alleged she was frisked inappropriately. She did not call the shift manager, Paul Mwangi, as a witness to support her account. The Respondent therefore argued that her conduct reflected attempted theft, lack of accountability, and breach of company policy, justifying summary dismissal. ELRC CAUSE NO. E003 OF 2025 JUDGMENT PAGE 13 OF 27 28. The Respondent relied on the case of CFC Stanbic Bank Limited V Danson Mwashako Mwakuwona [2015] KECA 919 (KLR) where the Court of Appeal stated that dismissal is fair if it falls within the “band of reasonable responses” a reasonable employer might adopt. In Naima Khamis v Oxford University Press (E.A) Ltd [2017] KECA 480 (KLR), the Court of Appeal explained the provisions of section 43(2) of the Employment Act, as follows; “. . . reasons for termination are matters that an employer at the time of termination of contract can genuinely support by evidence and which impact on the relationship of both the employer and employee in regard to the terms and conditions of work set out in a contract…..” 29. Furthermore, in Kenya Power & Lighting Company Limited V Aggrey Lukorito Wasike (2017) eKLR, the Court of Appeal held as follows: “Under Section 43 of the Act, the onus is on an employer to prove the reason or reasons for the termination, failing which the termination shall be deemed unfair. The test however, is a partly subjective one in that all an employer is required to prove is that he ELRC CAUSE NO. E003 OF 2025 JUDGMENT PAGE 14 OF 27 ‘genuinely believed to exist,’ causing him to terminate the employee’s services.” 30. The Respondent argued that, on a balance of probabilities, it had sufficient grounds to believe the Claimant was involved in attempted theft of milk on 13th February 2023, amounting to gross misconduct under Clause 26(g) of the Collective Bargaining Agreement, thereby justifying summary dismissal. 31. On procedure, the Respondent maintained compliance with Section 41(1) and (2) of the Employment Act, noting that the Claimant was served with a show cause letter dated 23rd June 2023, responded on 26th June 2023, and was invited to a disciplinary hearing on 30th June 2023 where she attended with a shop steward, was questioned, allowed to ask questions, and signed the minutes. She was thereafter issued with a dismissal letter and afforded an appeal, which was upheld. Citing the case of Walter Ogal Anuro V Teachers Service Commission [2013] KEELRC 386 (KLR), the Respondent submitted that both substantive justification and procedural fairness were satisfied, ELRC CAUSE NO. E003 OF 2025 JUDGMENT PAGE 15 OF 27 and thus due process was followed in effecting the summary dismissal. 32. On remedies, the Respondent submitted that reinstatement or re-engagement was untenable due to loss of trust and breakdown of the employment relationship; gratuity was barred by the CBA for gross misconduct; notice pay was excluded under the Employment Act and CBA provisions permitting summary dismissal; and leave entitlements had already been settled. Relying on Walter Ogal Anuro v Teachers Service Commission(supra), the Respondent concluded that both substantive justification and procedural fairness were satisfied, and therefore urged the Court, pursuant to section 12(4) of the Employment and Labour Relations Court Act, to dismiss the Claimant’s claim with costs. Analysis and determination 33. The court has considered the pleadings and the submissions on record; the issues for determination are as follows: i. Whether the Respondent fairly and lawfully terminated the grievant; ELRC CAUSE NO. E003 OF 2025 JUDGMENT PAGE 16 OF 27 ii. If (i) above is in the negative, whether the grievant is entitled to the relief sought; and iii. Who should bear costs of the suit. 34. In Loice Otieno V Kenya Commercial Bank Ltd (supra) the Court held that the termination was not undertaken within the parameters prescribed under section 41 of the Employment Act and was therefore procedurally unfair. The fact that the Claimant lodged an appeal against the termination could not cure the fundamental defect of non-compliance with section 41 of the Act. Arising from that finding, the Court observed that it was unnecessary to interrogate whether the Respondent had proved the reasons for the termination or whether those reasons were fair and valid as contemplated under sections 43 and 45 of the Employment Act. Any such inquiry would be purely academic and did not fall for determination. 35. In Mary Chemweno Kiptui v Kenya Pipeline Company Limited(supra) the court held as follows: “Invariably therefore, before an employer can exercise their right to terminate the contract of an employee, there must be valid reason or reasons that touch on ELRC CAUSE NO. E003 OF 2025 JUDGMENT PAGE 17 OF 27 grounds of misconduct, poor performance or physical incapacity. Once this is established the employee must be issued with a notice, given a chance to be heard and then a sanction decided by the respondent based on the representation made by the affected employee. It is now established best practice to allow for an appeal to such an employee within the internal disputes resolution mechanism and with due application of the provisions of section 5(7) (c) of the Employment Act. Where this procedure is followed an employer would have addressed the procedural requirements outlined under section 41 and any challenge that an employee may have would be with regard to substantive issues only. Summary dismissal on the other hand is largely at the instance of an employer. The standard applicable therefore are of a higher nature as this process is prone to abuse as the employer is in a more ELRC CAUSE NO. E003 OF 2025 JUDGMENT PAGE 18 OF 27 superior position than an employee. Summary dismissal can take place when an employer terminates the employment of an employee without notice or with less notice than that which the employee is entitled by any statutory provision or contractual term. However, even in cases of serious breach of a contract as under section 44(3) or on committing acts as outlined under section 44(4) of an employee being absent from work, being intoxicated, negligence, abusive, failure to obey lawful orders, criminal arrest or charges, suspect in a criminal case, all these serious acts, such an employee is subject to be treated as under section 41 of the Employment Act with regard to being accorded a hearing. Under subsection 43 (2) of the Employment Act, 2007, 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 caused the ELRC CAUSE NO. E003 OF 2025 JUDGMENT PAGE 19 OF 27 employer to terminate the services of the employee.” 36. In this instant case, the Claimant avers it had enjoyed a recognition agreement with the Respondent, pursuant to which Collective Bargaining Agreements have been concluded regulating terms of service. The grievant, Loice Wetaba, a union member, was engaged in 1996 as a general worker and later redeployed as a Quality Analysis Clerk. On 13th February 2023, and says her salary was Kshs.23,700/= at the time of termination. The Claimant’s case was that she was found with a packet of milk for personal use. Upon reporting to duty, she was confronted by Tabitha, a colleague who suspected the milk was company property. On 23rd June 2023, she was served with a show cause notice alleging breach of the Code of Business Principles. She responded on 26th June 2023, denying wrongdoing. At the disciplinary hearing of 30th June 2023, no witness testified to theft, and only Tabitha’s statement was relied upon. The grievant was summarily dismissed on 5th July 2023. The union’s appeal of 17th July 2023 was dismissed on 2nd August 2023. The matter was ELRC CAUSE NO. E003 OF 2025 JUDGMENT PAGE 20 OF 27 reported to the Ministry of Labour, where the conciliator recommended payment of terminal dues plus six months’ compensation for wrongful dismissal. The Respondent on the other hand argued that the grievant’s summary dismissal was lawful and justified, asserting that she breached company policy and contractual obligations under the Collective Bargaining Agreement by being reasonably suspected of stealing milk during the course of her duties as a Quality Clerk. Consequently, the Respondent maintains that the dismissal was well-founded in law. 37. The Claimant was suspected of having stolen one packet of milk. One witness, Tabitha gave evidence that the Claimant was supsected of having stolen the milk. There is no concrete evidence adduced to the effect that the milk in question was actually stolen milk. The Claimant insists she had bought the milk. 38. The reasons for termiantion are not verified as provided in Section 45(1) of the Employment Act 2007. Section 45(1) of the Employment Act states as follows:- “No employer shall terminate the employment of ELRC CAUSE NO. E003 OF 2025 JUDGMENT PAGE 21 OF 27 an employee unfairly. 39. As already stated, the court finds no concrete proof that the packet of milk was stolen. And even if she stole one packet of milk to drink, she could have been warned as per the Collective Bargaining Agreement since that was a misdemeanor and not an act of gross misconduct to justify summary dismissal without any benefits. That is even considering she had worked for the Respondent for 26 years from 1996 to 2023 without any reports of other disciplinary issues. 40. The court finds even if the Respondent put the Claimant through disciplinary process a sprovided in Section 41 of the Employment Act 2007 however, the substantive justification is wanting. In the case of WALTER OGAL ONURO -VS- TEACHERS SERVICE COMMISSION CASE 955 OF 2011 the court held:- “For termination to pass the fairness test, it ought to be shown that there was not only substantive justification, but also procedural fairness.” ELRC CAUSE NO. E003 OF 2025 JUDGMENT PAGE 22 OF 27 41. The court is of the considered view that the grievant was unlawfully and unfairly terminated, the reasons advanced for her dismissal being untenable. The charges relied upon by the Respondent were framed as breach of the Code of Business Principles on protecting Unilever’s physical and financial assets and intellectual property, alleged theft of a packet of milk in contravention of clause 26(g) of the Collective Bargaining Agreement, and breach of section 44(3) of the Employment Act. The grievant explained that employees were required to record any packet of milk taken in the register and inform the shift manager, which she admittedly failed to do. However, the court notes that the Respondent, and in partiuclar one Edith, subjected the grievant to a search of her private parts to confirm whether she had hidden the packet of milk, an act the Court finds discriminatory and degrading. The investigator did not identify the culprit who was stealing the milk as alleged. 42. The court further observes that the Respondent’s disciplinary policy also provided for the issuance of a warning letter in minor incidents, yet the grievant was summarily dismissed despite her 26 years of service. ELRC CAUSE NO. E003 OF 2025 JUDGMENT PAGE 23 OF 27 In the circumstances, the court finds that the Respondent acted disproportionately and in breach of due process. Accordingly, the court holds that the grievant was unfairly and unlawfully terminated. 43. For the reliefs sought, the Ministry of Labour vide a letter dated 15th November 2023 had not recommended that reinstatement for unfair dismissal but had instead asked the grievant be paid for the period she was away without loss of benefits, reduce the summary dismissal to normal termination without loss of benefits and 12 months compensation as per section 49 of the Employment Act for reinstatement of the grievant. The court has discretion as per section 12(3)(vii) of the Employment and Labour Relations Court Act where reinstatement ought to be done within three years of dismissal. The court will not grant the same for it is better for the grievant to part ways instead of reinstating the grievant whose relationship with the Respondent is already sour. 44. The court awards two months’ notice in accordance with CBA as Claimant was its employee over ten years. She is awarded 23,700/= X 2 = Kshs.47,400/=. ELRC CAUSE NO. E003 OF 2025 JUDGMENT PAGE 24 OF 27 45. The court will also award for 10 months for unfair termination under section 49(1)(c) of the Employment Act which will be calculated as follows: 23,700/= X 10= 237,000/=. 46. She is to be paid her gratuity as will be worked out by the Respondents and confirmed by the Claimant as per the CBA 47. The leave days and allowance are not proved and are not awarded. Also, the 10 months’ salary award caters for damages for unfair compensation. 48. The Respondent to issue the grievant with a certificate of service in accordance with Section 51 of the Employment Act within 30 days. 49. The Claimant will have the costs of the suit and interest at 14% per annum from date of this judgment till full payment. Orders accordingly. Dated, Signed and Delivered virtually at Nakuru this 5th Day of June, 2026. ELRC CAUSE NO. E003 OF 2025 JUDGMENT PAGE 25 OF 27 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 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. ELRC CAUSE NO. E003 OF 2025 JUDGMENT PAGE 26 OF 27 A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE ELRC CAUSE NO. E003 OF 2025 JUDGMENT PAGE 27 OF 27