https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1941

Kenya Plantation & Agricultural Workers Union v Lipton Tea & Infusions Kenya PLC (Employment and Labour Relations Cause E021 of 2024) [2026] KEELRC 1941 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEELRC 1941 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kericho Employment and Labour Relations Cause E021 of 2024 AN Mwaure, J July 9, 2026 Between Kenya Plantation & Agricultural Workers Union Claimant and Lipton Tea & Infusions Kenya PLC Respondent Judgment Introduction 1.The Claimant filed a Memorandum of Claim dated 12th August 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.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 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, Richard Ombati Nyambweke, was employed by the Respondent in May 2011 as a general worker and trained in the use of protective equipment. Over time, he served in several capacities: tea plucker, banda man, leaf inspector, and ultimately as a one‑man machine operator until his termination on 24th August 2022, earning Kshs.17,017.32/= monthly. 5.Between May and August 2022, the Claimant avers that the Respondent accused the grievant of illegal plucking of green leaves at Chebown Estate. On 19th July 2022, he received a show‑cause letter alleging that he had sorted stolen leaf at his residence in Sererut Centre, where police and company security reportedly found five sacks weighing 90 kg. It was further alleged that he and Vivian Chepngeno fled during the raid. 6.The Claimant avers that the grievant responded on 21st July 2022, denying the allegations and asserting he occupied only one company‑issued house. A disciplinary hearing was held on 22nd July 2022, and after no resolution was reached, he was summarily dismissed on 24th August 2022. 7.After his summary dismissal, the Claimant avers that the grievant appealed the disciplinary committee’s decision, but the appeal, conducted on 28th September 2022, upheld the dismissal despite his efforts to defend himself. He had earlier requested the appeal hearing on 2nd September 2022, and received feedback on 30th January 2023. 8.The Claimant avers that the dispute was then referred to the Ministry of Labour, where a Conciliator convened a meeting on 14th November 2023; however, the parties failed to reach an agreement, leading to a certificate of disagreement and a conciliation report issued on 15th November 2023. 9.The Claimant contends that the grievant was not accorded a fair hearing before being dismissed, contrary to the principles of natural justice, and therefore asserts that the termination was unlawful, illegal, and unfair. Respondent’s response to the memorandum of claim 10.The Respondent opposed the memorandum of claim vide response to the memorandum of claim dated 28th August 2025. 11.In the response, the Respondent acknowledges that the grievant was employed as a general worker earning Kshs.688.46 per day, totalling to Kshs.17,017.32/= per month until his dismissal in August 2022, and admits this court’s jurisdiction. 12.However, he denies the allegations in paragraphs 5 to 14 of the memorandum of claim, insisting that investigations and a disciplinary hearing established violations of company policy through illegal plucking of green leaves, thereby justifying summary dismissal. 13.The Respondent further argues that reinstatement is impossible due to loss of confidence, and rejects all claims for pay during dismissal, leave, allowances, gratuity, house allowance, damages, or notice, maintaining that the dismissal was both substantively justified and procedurally fair, with all terminal dues settled at the time of exit. Claimant’s evidence in court exemption 14.CW1, the grievant, Richard Ombati Nyambweke, adopted his written statement dated 2nd August 2024, together with his bundle of documents dated even date, marked as exhibits as his evidence in chief. 15.CW1 testified that on 13th May 2022, he was on leave from the Respondent’s employment when allegations of theft were raised against him. He explained that he knew Vivian Chepng’eno as a friend and casual employee of the Respondent, and although reside in the same place with her, they did not live together in the same house. He clarified that he was not related to Kibet, Vivian’s son, and maintained that he was implicated simply because of his association with Vivian. CW1 insisted that Vivian was responsible for the alleged theft of tea leaves, not him, and that he was unfairly terminated despite having worked for the Respondent for 11 years without any prior record of misconduct. He further stated that he was not paid his terminal dues and therefore seeks payment of his entitlements. 16.In cross-examination, CW1 confirmed that he was trained on the Respondent’s policies, including the Code of Business Principles, protection of company assets, and the provisions of the CBA. He acknowledged receiving a show‑cause letter on 19th July 2022, responded on 21st July 2022, and attended the disciplinary hearing on 22nd July 2022, where minutes were filed and later followed by a dismissal letter. He appealed through the union, and the matter was referred to a conciliator who issued recommendations. 17.CW1 stated that his dismissal was based on allegations of illegal plucking of tea leaves, with the security team claiming five bags were hidden in a house linked to him and Vivian Chepng’eno, though he denied association with that house, asserting his residence was company house No. 99. He admitted to a relationship with Vivian, whose house was near the plantation, and said he visited occasionally. He maintained that at the time of the incident, he was in Nyamira but produced no evidence to support this claim. He further noted that only Julia Koech signed the disciplinary minutes, not the chair, and reiterated that there was no proof he plucked tea leaves. CW1 concluded that he was unfairly terminated, denied gratuity despite 11 years of service, and not paid his full terminal dues. 18.In re-examination, CW1 clarified that the minutes of the disciplinary hearing were irregular, as only Julia Koech signed them while the Chairperson did not. He emphasized that the Conciliator’s recommendations acknowledged the unfairness of his dismissal, noting that no credible evidence was ever produced to show he had plucked the Respondent’s tea leaves. CW1 reiterated that his termination was unjust, that he was denied his terminal dues and gratuity despite long service, and maintained that the accusations against him were unfounded and based solely on his association with Vivian Chepng’eno. Respondent’s evidence in court 19.RW1, Julia Koech, the Respondent’s Business Partner, adopted her witness statement dated 19th November 2025 together with the bundle of documents dated even date marked as exhibits 1 to 6 as his evidence in chief. 20.In cross‑examination, RW1 stated that security personnel, specifically Robert Take, received a tip that the grievant and his family were illegally plucking tea, and that the recovered tea leaves were found in the Grievant’s house. She explained that company houses are allocated through balloting, though she did not have the Grievant’s house number or evidence of utility bills. During the raid, a boy named Kibet said Vivian had fled, and while there was no proof she was the Grievant’s wife, company records indicated he had referred to her as such. RW1 confirmed that the disciplinary minutes were signed by the grievant, herself, and Nyakina, with other management employees present, though not all signatures appeared. She emphasized that the grievant failed to protect company property, which was expected of all employees, not just security staff. 21.In re‑examination, it was clarified that because of his relationship with Vivian, the house was, by extension, linked to the Grievant. At the hearing, the grievant admitted that Kibet was Vivian’s son and acknowledged his relationship with her. The disciplinary hearing was conducted, and the grievant signed the minutes, with the Respondent reiterating that its policy required all employees to safeguard company property. 22.Parties canvassed the claim by way of written submissions. Claimant’s written submissions 23.The Claimant submitted that the Grievant, Richard Ombati Nyambweke, who worked for 12 years and earned Kshs. 17,017/= per month, was unlawfully dismissed on 24th August 2022 on baseless allegations of illegal tea plucking. He refuted the claims, stating he was on leave and had only one company house, yet the disciplinary hearing was irregular, discriminatory, and unsupported by evidence. The conciliator recommended setting aside the dismissal, converting it to normal termination, and awarding compensation. 24.The Claimant relied on Article 41 of the Constitution and sections 41 and 45 of the Employment Act, 2007, which require both substantive justification and procedural fairness. The Claimant also relied on the cases of Titus Musau Ndivau & Another V Waridi Limited [2012] KEELRC 190 (KLR), where Ongaya J(as he was then) held that employers must prove gross misconduct through proper inquiry; Mary Chemweno Kiptui v Kenya Pipeline Company Limited [2014] KEELRC 905 (KLR), Mbaru J, emphasized valid reasons and fair procedure; and Walter Ogal Anuro V Teachers Service Commission [2013] KEELRC 386 (KLR), which established that fairness requires both substantive and procedural compliance. 25.On this basis, the Claimant submitted that the dismissal was malicious, unlawful, and contrary to due process, and prays for reinstatement or, alternatively, payment of terminal dues, gratuity, service pay, allowances, damages, costs, and interest. Respondent’s written submissions 26.The Respondent submitted that the Claimant was accused of violating its Code of Business Principles and Clause 24(e) of the Collective Bargaining Agreement, specifically relating to the protection of physical and financial assets. He was alleged to have engaged in illegal plucking of tea leaves and hiding them at a house in Seretut Centre with Vivian Chepng’eno, where police and company security reportedly recovered five sacks of green leaf. Witnesses claimed the grievant and his family fled during the raid, leaving a child who later identified his parents’ whereabouts. 27.The Respondent also submitted that the grievant denied involvement, asserting he was in Nyamira at the time, though he provided no evidence. He later admitted that the house belonged to Vivian Chepng’eno, with whom he was in a relationship, and conceded that his family was involved in the incident, asking for forgiveness. The Respondent relied on this evidence, together with the Claimant’s response to the show‑cause letter and disciplinary hearing minutes of 22nd July 2022, to justify summary dismissal under section 43(2) and section 45(2) of the Employment Act, 2007, which require valid reasons, fairness, and adherence to due process. 28.In 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,“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.From the disciplinary evidence, the Respondent submitted that it has established on a balance of probabilities that the Claimant was involved, together with his family, in the illegal plucking of tea leaves from the company’s plantations. This conduct was deemed to amount to gross misconduct under the Employment Act and the Collective Bargaining Agreement, thereby justifying the Claimant’s summary dismissal as lawful and procedurally warranted. 32.The Respondent submitted that it has demonstrated compliance with sections 41(1) and 41(2) of the Employment Act, 2007, by issuing the Claimant a show‑cause letter on 19th July 2022, receiving his response on 21st July 2022, and convening a disciplinary hearing on 22nd July 2022 where he was accompanied by his shop steward, allowed to question witnesses, and made submissions before signing the minutes. Following the hearing, he was summarily dismissed but granted a right of appeal, which was heard and upheld. 33.The Respondent relied on the case of Walter Ogal Anuro v Teachers Service Commission(supra), the Respondent argues that both substantive justification and procedural fairness were satisfied, as investigations confirmed the Claimant’s involvement in illegal plucking of tea leaves, supported by the recovery of five sacks at Seretut Centre and his association with Vivian Chepng’eno. 34.Consequently, the Respondent maintains that the dismissal was lawful, procedurally sound, and based on valid grounds under sections 43(2) and 45(2) of the Employment Act, rendering the Claimant undeserving of reinstatement, damages, gratuity, allowances, or any of the prayers sought, and urges the Court under section 12(4) of the Employment and Labour Relations Court Act to dismiss the claim with costs. Analysis and determination 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 stated as follows:“…. For a termination of employment to pass the fairness test, there must be both substantive justification and procedural fairness. Substantive justification has to do with the establishment of a valid reason for the termination, while procedural fairness addresses the procedure adopted by the employer to effect the termination.” 37.In Kenfreight (E.A) Limited v Benson K. Nguti [2016] KECA 409 (KLR), the Court of Appeal stated as follows:“Apart from issuing proper notice according to the contract (or payment in lieu of notice as provided), an employer was duty bound to explain to an employee in the presence of another employee or union official, in a language the employee understood, the reason or reasons for which the employer was considering termination of the contract. In addition, an employee is entitled to be heard and his representation, if any considered by an employer before a decision to terminate his contract of service was taken.” 38.The court in Kenya Power & Lighting Company Ltd v Wasike(Supra) emphasized that under section 43 of the Employment Act, 2007, the burden lies on the employer to prove the reasons for termination, failing which the dismissal is deemed unfair. Importantly, the test is partly subjective, as the employer needs only to demonstrate that they genuinely believed the reasons existed at the time, and that belief led to the decision to terminate the employee’s services. 39.Section 47(5) of the Employment Act provides as follows:“For any complaint of unfair termination of employment or wrongful dismissal, the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer.” 40.In this instant case, the grievant was accused of illegal plucking of green leaves at Chebown Estate and, on 19th July 2022, issued a show‑cause letter alleging that stolen leaves were found at his residence in Sererut Centre, where police and company security recovered five sacks weighing 90 kg. He denied the allegations in his response of 21st July 2022, asserting he occupied only one company house. A disciplinary hearing was held on 22nd July 2022, and after no resolution, he was summarily dismissed on 24th August 2022. His appeal of 28th September 2022 was dismissed, and subsequent conciliation efforts on 14th November 2023 failed, resulting in a certificate of disagreement. The Respondent maintains that investigations and the disciplinary process established gross misconduct, justifying dismissal, and argues that reinstatement is impossible due to loss of confidence. It rejects all claims for reinstatement, pay, allowances, gratuity, damages, or notice, insisting the dismissal was both substantively justified and procedurally fair, with terminal dues settled. 41.The Respondent failed to establish genuine and credible reasons for dismissal of the Grievant. The evidence relied upon, primarily the testimony of a child, Kibet, was insufficient, particularly since the Grievant avers he was on leave at the time of the alleged theft, and the tea leaves recovered belonged to Vivian Chepng’eno, and she ran away. The said leaves were found in Vivian’s house. There is no clear evidence that the said Vivian shared the house with the Grievant. The Grievant was said to have been a spouse of Vivian but all these are speculations. There is no support evidence of these assertions. 42.While the Respondent followed procedural steps such as issuing a show‑cause letter, conducting a hearing, and allowing an appeal, the substantive justification for dismissal was lacking. In employment law, the twin principles of substantive justification and procedural fairness must go hand in hand; compliance with procedure alone cannot cure the absence of valid grounds. Accordingly, the Court holds that the Respondent failed to meet the statutory threshold under sections 41, 43, and 45 of the Employment Act. 43.In myriad Employment case courts have held that an an employer must prove valid grounds for termination of an employee. In the case of TITUS MUSAU NDIVAU & ANOTHER -VS- WARIDI LIMITED (Supra) The Court held that employers must prove gross misconduct through proper inquiry. 44.The court in considering the respective pleadings of the parties, their submissions and case laws comes to the conclusion that the respondent did not meet the twin principles of substantive and procedural justification in terminating the Claimant. The court therefore enters judgment in favour of the Claimant. 45.The court having entered the judgment in favour of the Claimant, the court will award one month salary in lieu of notice in accordance with section 36 of the Employment Act, amounting to Kshs.Kshs.17,017.32/=. 46.The court will award compensation for unfair termination under section 49(1)(c) of the Employment Act, amounting to 10 months, which will be calculated as follows:17,017.32 X 10= 170,170/=. 47.The Claimant is to be awarded gratuity in accordance with the Collective Bargaining Agreement. 48.The court declines to award the rest of the reliefs sought as the same have not been proved including travelling allowance, and in particular prayers 1 a-d, 2 - b, c, d, and e. 49.The Claimant will be awarded the costs of the suit and interest at 14% per annum from date of Judgment till full payment. 50.Total award is Kshs.187,187/=plus gratuity Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 9TH DAY OF JULY, 2026.ANNA NGIBUINI MWAUREJUDGEORDERIn 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.A signed copy will be availed to each party upon payment of Court fees.