https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1867

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT KERICHO ELRC CAUSE NO. E033 OF 2024 (Before Hon. Lady Justice Anna Ngibuini Mwaure) KENYA PLANTATION & AGRICULTURAL WORKERS UNION.………………………….......…...… CLAIMANT VERSUS LIPTON TEA & INFUSIONS KENYA PLC ….. ……....RESPONDENT JUDGMENT Introduction 1. The Claimant filed a Memorandum of Claim dated 24th October 2024 seeking the following orders: 1.An order directing the Respondents to: a.To unconditionally reinstate the grievant herein; b.To pay the grievant for the entire period within which he was dismissed. c. To pay the grievant in respect of all the leave days due to his time of reinstatement KRC CLAIM NO. E033 OF 2024 JUDGMENT PAGE 1 OF 23 d.To pay the grievant leave and travelling allowance. 2. Should prayer 1 above fail, an order directing, the Respondent to: a.Pay the grievant gratuity for the years he has served with the Respondent at the rates provided for in the CBA; b.Pay the grievant house allowance from the time of dismissal until the time of judgment; c. Pay the grievant monthly salary for a period of twelve(12) months; d.Pay the grievant in lieu of leave for the period dismissed. e.Pay the grievant leave travelling allowance for the period of dismissal; f. Pay the grievant in lieu of notice of termination g.Pay the grievant damages for unlawful, illegal and unfair dismissal; h.Pay the grievant the costs of the cause i. Interest on (a), (b), (c), (d), (e), (f) and (g) above; j. Any other relief this Honourable court deems fit to grant. Claimant’s case KRC CLAIM NO. E033 OF 2024 JUDGMENT PAGE 2 OF 23 3. The Claimant avers that it had entered into a recognition agreement with the Respondent and negotiated several Collective Bargaining Agreements (CBA). 4. The Claimant avers that the grievant, Lawrence Kennedy Ochieng, was employed in May 2011 as a general worker, later promoted to Grade 2 Supervisor, and earning a basic salary of Kshs.29,641/= at the time of dismissal. 5. On 30th August 2021, the Claimant avers that a workplace accident occurred when a team member fell from the cyclone without proper PPEs. The following day, 31st August 2021, the grievant was suspended for one week with half pay, and the suspension was later extended by a letter dated 8th September 2021 for 20 more days. 6. On 29th September 2021, the Claimant avers that he was recalled to work but simultaneously served with a show-cause notice requiring a response by 1st October 2021 and summoned for a disciplinary hearing via a letter dated 6th October 2021, which was held on 8th October 2021. The grievant responded on 30th September 2021, refuting the allegations, but was KRC CLAIM NO. E033 OF 2024 JUDGMENT PAGE 3 OF 23 summarily dismissed through a letter dated 1st November 2021 7. The Claimant avers that conciliation efforts initiated by the Cabinet Secretary for Labour on 23rd March 2022 failed, and argues that the dismissal was unlawful, unfair, and contrary to the CBA, labour laws, and natural justice. Respondent’s response to the memorandum of claim 8. The Respondent opposed the memorandum of claim vide response to the memorandum of claim dated 28th August 2025. 9. In the response, the Respondent acknowledged that the Grievant was employed as a Team Leader until his dismissal in October 2021, earning Kshs.29,641/=. However, the Respondent denies the allegations in paragraphs 5 to 19 of the memorandum of claim and challenges the Claimant to strict proof. 10. The Respondent avers that investigations and a disciplinary hearing established violations of occupational health and safety policies, specifically Clause 24(c) and 24(e) of the CBA, amounting to gross misconduct and justifying summary dismissal. KRC CLAIM NO. E033 OF 2024 JUDGMENT PAGE 4 OF 23 11. The Respondent further denies entitlement to all prayers sought, arguing that reinstatement is untenable due to loss of confidence, that the dismissal was both substantive and procedural, and that all terminal dues were settled. Claims for gratuity, allowances, damages, notice pay, and compensation are rejected as lacking legal basis, given the valid grounds for dismissal. 12. Accordingly, the Respondent prays that the Claimant’s suit be dismissed with costs. Claimant’s evidence in court exemption 13.CW1, the grievant, adopted his written statement dated 7th January 2026, together with the list of documents dated 24th October 2024 marked as exhibits 1 to 10, as his evidence in chief. 14. CW1 stated that he was dismissed from work and prays the court to grant his prayer as per claim. He stated that he was not paid any terminal dues, and he did not clear with the Respondent. KRC CLAIM NO. E033 OF 2024 JUDGMENT PAGE 5 OF 23 15. In cross-examination, CW1 stated that he was dismissed in 2021 when the company was still known as Unilever, and confirmed that employees had been trained on company policies, including the Occupational Safety and Health policy and standard operating procedures for working at height. He admitted he did not know the contents of the CBA and had not been given a copy, though his appointment letter referred to it. CW1 explained that following a safety incident involving a member of his team, he was suspended for one week with half pay, later extended to 29th September 2021. He received an end-of-suspension letter, was informed investigations were ongoing, and was served with a show-cause letter requiring him to respond by 1st October 2021. He was invited to a disciplinary hearing on 8th October 2021, attended with a witness, and confirmed that minutes were taken, questions asked, and the shop steward allowed to respond. He was subsequently issued with a summary dismissal letter dated 1st November 2021, but was given the right to appeal, which he pursued before a conciliator. KRC CLAIM NO. E033 OF 2024 JUDGMENT PAGE 6 OF 23 16.CW1 further testified that as a trained team leader, his role included confirming and managing risks, reporting accidents, and ensuring compliance with safety procedures, particularly in tasks involving working at height. He explained that preparation required a pre-task risk assessment and ensuring equipment was available and in good condition, with the team leader supervising at all times. He acknowledged that his team had been assigned to clean the dryer, and that Geoffrey Kipkoech, working at height, lacked proper safety wear and fell, sustaining injuries. CW1 admitted accepting the charges, noting that he had been interviewed by an investigator whose report was presented at the hearing. He reiterated that he was not present when Geoffrey fell, but later saw the aftermath and was shocked. He confirmed that two employees were working without coveralls, that Geoffrey was not following the rules, and that he did not report the incident because he panicked and ran away. He conceded that he did not complete the clearance with the company after the incident. 17.In re-examination, CW1 confirmed that as a team leader, he had read and understood the standard KRC CLAIM NO. E033 OF 2024 JUDGMENT PAGE 7 OF 23 operating procedures, and it was his responsibility to ensure compliance. He stated that the employee who fell had no coveralls and began working before he had been issued the required PPE, despite all workers knowing they should not work without protective gear. CW1 clarified that he was not present when Geoffrey fell but was shocked upon learning of the incident, and upon arriving at the site, he met Duncan after the accident had already occurred. He further noted that the dust from the dryer was unusual, as the machines were normally cleaned every Monday. CW1 emphasized that both team leaders and workers had been trained on the relevant safety standards. Respondent’s evidence in court 18.RW1, Nixon Kipkirui, the Respondent’s lead investigator, adopted his written statement on 9th March 2026, together with the list of documents dated 28th February 2024, marked as exhibits 1 to 7, as his evidence in chief. 19.RW1 testified that an accident occurred at the Respondent’s site in which an employee was injured, and CW1 was the team leader responsible at the time. He explained that Respondent’s employees are KRC CLAIM NO. E033 OF 2024 JUDGMENT PAGE 8 OF 23 trained on safety procedures, with the team leader tasked to ensure compliance, including confirming that all workers have the requisite PPE before submitting certificates to the Production Assistant, who was the senior team leader. Investigations revealed that CW1 was aware that two employees had begun working without PPE, amounting to negligence. Consequently, CW1 was issued with a show-cause letter, invited to a disciplinary hearing, and thereafter summarily dismissed. 20.In cross-examination, RW1 stated he was the lead investigator but did not personally take CW1’s statement, noting that CW1 accepted the charges and, under policy, only his statement was recorded. He confirmed CW1 had no prior warnings, but as team leader, he was responsible for ensuring workers had PPE and authorizing commencement of work. RW1 explained that CW1 saw employees working without PPE yet failed to act or report, and admitted his lapse. The shop steward also acknowledged CW1’s failure. RW1 added that CCTV footage showed work had begun before the accident. KRC CLAIM NO. E033 OF 2024 JUDGMENT PAGE 9 OF 23 21.In re-examination, RW1 reiterated that CW1 admitted he should have secured PPE before signing the permit, and that as team leader, he should not have fled but reported the incident, given his higher responsibility and training. 22.Parties canvassed the claim by way of written submissions. Claimant’s written submissions 23. The Claimant submitted that the grievant, a Grade 2 Supervisor employed since 2011, was wrongfully and unfairly dismissed on 1st November 2021, despite following all Standard Operating Procedures and ensuring risk assessments and permits were signed before work commenced. The Claimant contends that the Respondent failed to prove valid grounds for dismissal under section 43(1) and Section 45 of the Employment Act, and disregarded the grievant’s rights to a fair hearing under section 41 of the Employment Act and Article 50 of the Constitution of Kenya. Reliance is placed on the ILO Termination of Employment Convention, 1982 (No.158) and in particular Article 4, which requires valid reasons for termination. KRC CLAIM NO. E033 OF 2024 JUDGMENT PAGE 10 OF 23 24. The Claimant relied on several cases, including Kenfreight (E.A) Limited v Benson K. Nguti [2016] KECA 409 (KLR), the Court of Appeal held that termination is unfair if based on invalid reasons or unfair procedures. In Susan Mumbi v Kefala Grebedhin HCCC No.332 of 1993 and Kipkebe Limited v Peterson Ondieki Tai [2016] KEHC 5422 (KLR) emphasized that the burden of proof lies on the party alleging. 25. In Mrisha v Civicon Limited [2014] KEIC 86 (KLR), it was held that termination without valid reasons and fair procedure is unfair, while Loice Otieno V Kenya Commercial Bank Ltd [2013] KEELRC 271 (KLR) underscored that employers must prove valid and fair reasons for summary dismissal. Similarly, Mary Chemweno Kiptui v Kenya Pipeline Company Limited [2014] KEELRC 905 (KLR) affirmed that valid reasons and fair procedure are prerequisites for termination. Finally, Titus Musau Ndivau & Another v Waridi Limited [2012] KEELRC 190 (KLR) clarified that summary dismissal is only permissible in obvious cases of gross misconduct, and due process under Section 41 of KRC CLAIM NO. E033 OF 2024 JUDGMENT PAGE 11 OF 23 the Employment Act must be followed. All the cases highlight that both substantive justification and procedural fairness are essential for lawful termination. 26. The Claimant submitted that the Respondent failed to prove misconduct, acted maliciously, and therefore the grievant is entitled to reinstatement or the reliefs sought in the memorandum of claim. Respondent’s written submissions 27.The Respondent submitted that the Claimant’s dismissal was lawful under section 45(2) of the Employment Act, as he failed to meet his duties as team leader. He was accused of violating the occupational health and safety policy and Clause 24(c) and (e) of the CBA by allowing employees to commence work without PPE, leading to Geoffrey Kipkoech’s fall and injury, after which he panicked and fled. Evidence, including SOPs, policies, CCTV footage, and minutes of the disciplinary hearing on 8th October 2021, showed that the Claimant was trained, aware of his responsibilities, and admitted to lapses KRC CLAIM NO. E033 OF 2024 JUDGMENT PAGE 12 OF 23 during the process. The Respondent concluded that his negligence amounted to gross misconduct, justifying summary dismissal. 28. The Respondent relied on the case of CFC Stanbic Bank Limited V Danson Mwashako Mwakuwona [2015] KECA 919 (KLR), the Court of Appeal stated that dismissal is fair if it falls within the “band of reasonable responses” a reasonable employer might adopt. 29. 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, 2007 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…..” 30. Furthermore, in Kenya Power & Lighting Company Ltd v Wasike [2017] KECA 446 (KLR), the Court of Appeal held: KRC CLAIM NO. E033 OF 2024 JUDGMENT PAGE 13 OF 23 “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 ‘genuinely believed to exist, causing him to terminate the employee’s services.” 31. 24. Additionally, in Abubakar Aslam Shikolio v Savannah Cement (EPZ) Limited [2015] KEELRC 767 (KLR), the Court held that: “It is not enough for an employer to simply state that an employee has failed to properly carry out his duties; the elements of failure must be stated and proved to the degree of balance of probability.” 32. The Respondent submitted that it has established, on a balance of probabilities, that the Claimant breached the occupational health and safety policy and Clause 24(c) and (e) of the CBA by negligently performing his duties and failing to follow lawful commands. These KRC CLAIM NO. E033 OF 2024 JUDGMENT PAGE 14 OF 23 violations amounted to gross misconduct and justified his summary dismissal. 33. On procedure, the Respondent submitted that it demonstrated that it complied with section 41(1) and (2) of the Employment Act, by issuing a show-cause letter on 29th September 2021, receiving the Claimant’s response on 1st October 2021, inviting him to a disciplinary hearing on 8th October where he was accompanied by his shop steward, allowing him to ask questions and make submissions, and later granting him a right of appeal. The Respondent relied on 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. 34. Consequently, the Respondent maintained that the Claimant is not entitled to reinstatement, compensation, gratuity, allowances, or damages, as his dismissal was lawful, and urged the Court under section 12(4) of the Employment and Labour Relations Court Act to dismiss the claim with costs. Analysis and determination KRC CLAIM NO. E033 OF 2024 JUDGMENT PAGE 15 OF 23 35. The court has considered the pleadings herein and the submissions by both parties; the issues for determination are as follows: a.Whether the grievant was unlawfully and unfairly terminated; b.If (a) above is in the affirmative, whether the grievant is entitled to the reliefs sought; c. Who should bear the costs of the suit. 36.In Walter Ogal Anuro v Teachers Service Commission(supra), the court held that for termination of employment to pass the test of fairness test, there must be both substantive and procedural fairness. 37. In Loice Otieno V Kenya Commercial Bank Ltd(supra) the court stated as follows: “As I have had occasion to state in several decisions in the past, the Employment Act 2007 has caused a radical and fundamental shift in both the jurisprudence and practice in employment law in Kenya. The doctrine of natural justice or procedural fairness is now an essential part of the employment relationship. An employer must comply with the procedures set out in section 41 of the Act even in KRC CLAIM NO. E033 OF 2024 JUDGMENT PAGE 16 OF 23 circumstances where summary dismissal or what the Respondent referred to as instant dismissal is contemplated. And an employer who resorts to summary dismissal/instant dismissal will be required to demonstrate that the summary dismissal meets the requirements of sections 43 and 45 by proving the reasons for termination and that the reasons are valid and fair, where an employee challenges the summary dismissal.” 38.In this instant case, the grievant was employed by the Respondent in May 2011 as a general worker, later promoted to Grade 2 Supervisor, earning Kshs.29,641/=. On 30th August 2021, a workplace accident occurred when a team member fell without proper PPE, leading to the Grievant’s suspension on 31st August 2021, later extended on 8th September 2021. Though recalled on 29th September 2021 he was served with a show-cause notice, responded on 30th September 2021, and invited for a disciplinary hearing via letter dated 6th October 2021. He attended a disciplinary hearing on 8th October 2021, before being summarily dismissed by letter dated 1st November 2021. Conciliation efforts on 23rd March 2022 failed, KRC CLAIM NO. E033 OF 2024 JUDGMENT PAGE 17 OF 23 with the Claimant insisting the dismissal was unlawful and contrary to the CBA, labour laws, and natural justice. The Respondent, however, maintained that investigations and the hearing confirmed breaches of occupational health and safety policies under Clause 24(c) and 24(e) of the CBA, amounting to gross misconduct. It argued reinstatement was untenable due to loss of confidence, asserted the dismissal was both substantive and procedural, and stated all terminal dues had been settled. 39. The charges against the Grievant that led to his summary dismissal were among others failure to keep the Dress Section clean and secondly, failure to ensure safety of employees working at heights. These allegations are contained in the Notice to show cause letter addressed to Grievant of 29th September 2021. The Grievant responded by his letter of 2nd October 2021 but was then invited for a disciplinary hearing which was set for 8th October 2021. 40.The disciplinary hearing took place as scheduled on 8th October 2021. The Grievant explained that on the date his colleague Geoffrey was involved in an accident they had met for KRC CLAIM NO. E033 OF 2024 JUDGMENT PAGE 18 OF 23 a morning briefing and had discussed Safety measures. He says after the meeting he wen to collect the PPEs and was then alarmed to hear his colleague Geoffrey had fallen from the heights and was injured. He says Geoffrey had even been told by Charles another colleague to climb down. The Respondent has not exactly described what role the Grievant was to play in compliance with the safety of the employees. The evidence given in court even by the Respondent witnesses was that all staff were trained on safety measures and especially those working on heights. 41.It was not crystal clear if Grievant was expected to babysit the employees like school children and especially in basic safety measures like wearing a safety gear. The colleague who got injured one Geoffrey much as the court sympathises with him but as an adult man working in risky areas also had a duty to take care of his safety. More so, the Grievant testifies that they had undergone a briefing on safety precautions just that morning and in the presence of Geoffrey Kipkoech. KRC CLAIM NO. E033 OF 2024 JUDGMENT PAGE 19 OF 23 The evidence adduced was that Geoffrey and Charles were on top of the ladder and one Mr. Cheruiyot told them to get down and Charles got down. Geoffrey did not get down and hence the fall. 42. In the case of DWA Estate Ltd -VS- Stanley Kasina Musao (2008) eKLR the court accepted the defence of the Appellant of volenti non fit injuria and stated that the Respondent knew or ought to have known the driver lacked authority to carry passengers. The Respondent was injured in a motor accident. 43. Similarly, Geoffrey ought to have known to climb the heights without safety gear was dangerous. The Respondent ought not to have found an offence of gross misconduct against the Grievant to deserve being summarily dismissed. 44. On the test of substantive justification meaning a valid reason to justify summary dismissal as provided under Section 45(1) of the Employment Act the court finds the Respondent fails to prove. The Grievant is therefore found to have established a case for unfair termination. KRC CLAIM NO. E033 OF 2024 JUDGMENT PAGE 20 OF 23 45. The myriad of Employment cases inter alia Mary Chemweno Kiptui -vs- Kenya Pipeline Company Ltd (Supra) and Kenfreight E.A Limited -vs- Benson Nguti (Supra) clearly state that employers must prove a valid and fair reason for summary dismissal. 46. Even though the Respondent conducted disciplinary hearing under Section 41 of the Employment Act however, the reason for termination of the Grievant is wanting. The court therefore enters judgment in favour of the Grievant. 47. The awards that the court will grant are as follows:- (1) The Claimant is awarded one month salary in lieu of notice. (The Claimant to present Grievant’s payslip as court could not see it among the exhibits therein. (2) Also, Claimant is granted 10 months equivalent of salary as compensation for unlawful wrongful termination. (3) The other prayers including reinstatement which includes prayers (1) a-d, (2) b, c d, e and h are not merited or proved and are all declined. KRC CLAIM NO. E033 OF 2024 JUDGMENT PAGE 21 OF 23 (4) Gratuity will be paid as per the Collective Bargaining Agreement. (5) Claimant will have costs of this case. (6) Award will accrue interest at 14% per annum from date of this judgment until full payment. Case will be mentioned on 17th September 2026 once the payslips are provided to give final award. Orders accordingly. Dated, Signed and Delivered virtually at Nakuru this 26th Day of June, 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 KRC CLAIM NO. E033 OF 2024 JUDGMENT PAGE 22 OF 23 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. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE KRC CLAIM NO. E033 OF 2024 JUDGMENT PAGE 23 OF 23