https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2151

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAKURU CAUSE NO. E102 OF 2024 (Before Hon. Lady Justice Anna Ngibuini Mwaure) KENYA PLANTATION & AGRICULTURAL WORKERS UNION ………………………………….. CLAIMANT VERSUS SHALIMAR FRESH FLOWERS LIMITED………..... RESPONDENT JUDGEMENT Introduction 1. The Claimant, on behalf of the grievants, instituted this suit vide memorandum of claim dated 13th December 2024 seeking the following orders that: a.A declaration that the termination of their employment was unfair and unlawful. b.Unconditional reinstatement to their employment without loss of benefits and payment of their full salary and/or wages for the period they were dismissed; or in the alternative c. Damages for unfair and unlawful termination of employment as follows: 1.Daniel Bifwoli totalling Kshs.210,224/= 2.Stephen Kagwi Kshs.415,426/= - - NAKURU CAUSE E102 OF 2024 JUDGMENT PAGE 1 OF 22 d.Certificate of service e.Costs of the suit f. Interest on c) and e) above from the time of filing the suit until payment in full. Claimant’s case 2. The Claimant avers that the Grievants were permanent and pensionable employees of the Respondent, working as general workers in the pack house department. 3. On 19th March 2024, the Claimant avers that the Respondent’s security supervisor accused them of theft, leading to their arrest and detention at Olkalou Police Station under OB No. 02/19/3/2024. However, police investigations later confirmed their innocence, finding no evidence to support any criminal charges against them. 4. After their release, the Claimant avers that the grievants returned to work on 21st March 2024, but were immediately issued show cause letters requiring responses within a day. 5. The Claimant avers that the Respondent later suspended them on 23rd March and 4th April 2024, before summarily dismissing them on 9th April 2024. 6. The Claimant Union reported the matter to the Labour Commissioner, who appointed a conciliator NAKURU CAUSE E102 OF 2024 JUDGMENT PAGE 2 OF 22 on 9th July 2024 and convened meetings on 30th July and 23rd August 2024. 7. The Claimant Union avers that the conciliator found no evidence of theft, noting the flowers were within the employees’ work area and that the grievants had no prior warnings. She recommended reinstatement with full benefits and back pay. 8. Despite receiving this report, the Claimant Union avers the Respondent ignored the directive, violating the Collective Bargaining Agreement and section 15(b) of the employment contract. 9. The Claimant Union asserts that the grievants consistently served the Respondent with diligence and integrity, maintaining exemplary conduct throughout their employment. They had never been subjected to any disciplinary proceedings or issued with show cause letters prior to the incident in question. Consequently, the Respondent’s decision to terminate their employment is deemed abrupt, unjustified, and wholly unwarranted. Respondent’s reply to memorandum of claim 10. The Respondent opposed the memorandum of claim vide a reply to memorandum of claim dated 21st August 2025. NAKURU CAUSE E102 OF 2024 JUDGMENT PAGE 3 OF 22 11. The Respondent avers that the grievants were lawfully dismissed for gross misconduct after being found in the cold room on 19th March 2024 outside their designated work area, allegedly colluding with outsourced guards to steal flowers. 12. The Respondent emphasizes that due process was meticulously followed: show cause letters issued on 22nd March 2024, suspension on 23rd March 2024, a disciplinary hearing on 25th March 2024, and eventual termination on 9th April 2024. Witness statements from the HR Officer, Security in Charge, and Packhouse Manager reinforce the narrative of suspicious conduct, while incident reports detail flowers already packed in the cold room where no packing is authorized. Though the Labour Office initially recommended reinstatement on 25th September 2024, subsequent reports on 15th October and 23rd October 2024 gave conflicting directions, underscoring procedural complexity. 13. The Respondent invokes sections 41 and 44(4)(g) of the Employment Act 2007, arguing the dismissal was both substantively justified and procedurally fair, and urges the Court to dismiss the Union’s NAKURU CAUSE E102 OF 2024 JUDGMENT PAGE 4 OF 22 claim as malicious, unfounded, and brought in bad faith. This reply places heavy weight on the alleged misconduct, the internal disciplinary process, and statutory compliance to justify termination. Claimant’s evidence in court 14. The Claimant Union adopted its pleadings, witnesses’ statements and documents as their evidence in chief. The Claimant Union stated that the grievants were unlawfully and unfairly terminated. Respondent’s evidence in court 15. RW1, Miriam Njoki Wambui, the Respondent’s Human Resource Manager, adopted her witness statement dated 21st August 2025 together with the bundle of documents dated even date marked as exhibits 1 to 16 as her evidence in chief. 16. RW1 testified that she was employed by the Respondent and personally knew the grievants. She stated that on 19th March 2024, the grievants, who were loaders, were found in a restricted area of the cold room where no packing or loading is ordinarily carried out, and were suspected of attempting to steal flowers stored there. Following consultations with management, the police were called and the Grievants were arrested. NAKURU CAUSE E102 OF 2024 JUDGMENT PAGE 5 OF 22 The Respondent later withdrew the criminal complaint and opted to pursue internal disciplinary procedures. RW1 explained that the grievants were served with show cause letters, to which they responded, before being suspended pending investigations. They were subsequently invited to a disciplinary hearing, duly heard, and minutes of the proceedings were prepared and signed. After deliberations, their dismissal was confirmed, and although the Claimant Union lodged an appeal, it was rejected. 17. RW1 stated that the matter was then reported to the Labour Office, which issued three separate reports: the first recommending reinstatement, the second suggesting conversion of dismissal to normal termination with payment of terminal dues, and the third reverting to the initial recommendation of reinstatement. RW1 concluded that these conflicting reports ultimately led to the filing of the present case. 18. In cross-examination, RW1 clarified that the Claimants were loaders assigned to the pack house, not the cold room where the flowers were found. She stated that the employees were taken to the police station together with exhibits, though she NAKURU CAUSE E102 OF 2024 JUDGMENT PAGE 6 OF 22 herself did not deliver the flowers there. The police later released them after the company withdrew the case, but she did not personally write a withdrawal letter. RW1 confirmed she attended several meetings before the Labour Office, noting that the second report followed the first, though she was uncertain of the exact interval. 19. In re-examination, RW1 emphasized that the flowers were in the cold room, which is distinct from the pack house. She explained that while the Claimants were permitted to work in the pack house, they were not authorized to be in the cold room. 20. RW2, Shirah Kingori, the Labour Officer, testified that she prepared three reports. She explained that her letter dated 15th October 2024 was written under duress from the Respondent’s management, specifically Mr. Vitalis, who accused her of always ruling in favour of claimants. She later nullified that letter, reaffirming her initial recommendation dated 25th September 2024, which she considered the correct position. RW2 admitted that in the October letter she had suggested collusion between guards and loaders, but by her final letter of 23rd NAKURU CAUSE E102 OF 2024 JUDGMENT PAGE 7 OF 22 September 2024, she resolved to stand by the September recommendation. 21. In cross-examination, RW2 confirmed that the 25th September 2024 report was prepared after a meeting attended by all parties, whereas the 23rd October 2024 letter was issued without any meeting. She reiterated that the Court should rely on the report of 25th September 2024 as the valid recommendation. 22. Parties filed their respective written submissions. Claimant’s submissions 23. The Claimant submitted that the grievants, being loaders, were legitimately stationed in the cold room within the pack house, a fact corroborated by the Respondent’s own witness, Ms. Miriam Njoki. The conciliator’s report dated 25th September 2024 found no conspiracy, noted the absence of prior warnings, and recommended reinstatement with full benefits and payment of accrued salaries. Although the Respondent later coerced the conciliator into issuing a contradictory letter on 15th October 2024, she testified that this was written under duress and reaffirmed her September report as valid and final. NAKURU CAUSE E102 OF 2024 JUDGMENT PAGE 8 OF 22 24. The Claimant argues that the Respondent’s reliance on section 44(4)(g) of the Employment Act was misplaced, as police investigations yielded no evidence of theft and no charges were ever preferred. Under section 45 of the Act, the dismissal was therefore unfair, lacking both valid and fair reasons. The Claimant relied on the case of Pius Juma Otieno V D. Manji Construction Ltd [2019] KEELRC 1628 (KLR), it emphasizes that termination based on unproven allegations is unlawful. 25. Consequently, the Claimant union urges the court to compel reinstatement of the grievants with full benefits, payment of salary arrears, and costs, stressing that the Respondent’s conduct displayed disregard for the rule of law and the independence of public institutions. Respondent’s submissions 26. The Respondent submitted that the grievants’ dismissal was lawful, fair, and procedurally compliant under the Employment Act, 2007. It relied on section 41, which obligates an employer to inform an employee of the charges against them NAKURU CAUSE E102 OF 2024 JUDGMENT PAGE 9 OF 22 and allow representation at a hearing; section 43(1), which requires the employer to prove valid reasons for termination; section 44(4)(g), which authorizes summary dismissal where an employee commits or is reasonably suspected of committing a criminal offence against the employer’s property; and section 45(2), which defines termination as unfair if the employer fails to establish valid and fair reasons. According to the Respondent, these statutory provisions were fully observed in the dismissal process, thereby rendering the termination lawful and justified. 27. The Respondent argued that the grievants were found in the cold room outside their scope of duty, raising reasonable suspicion of theft, and were subjected to due process through show cause letters, suspension, a disciplinary hearing on 25th March 2024, and dismissal on 9th April 2024. 28. On procedural fairness, the Respondent relied on the case of Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd [2013] KEELRC 920 (KLR), where the court held that section 41 requires informing employees of charges and giving them a fair opportunity to be heard. Similarly, in Fredrick Saundu Amolo NAKURU CAUSE E102 OF 2024 JUDGMENT PAGE 10 OF 22 ([suing through the Executive Secretary KUPPET Kajiado County Branch]) v The Principal Namanga Mixed Day Secondary School & 2 others [2014] KEIC 1201 (KLR), the court affirmed that employers may suspend employees to facilitate investigations. 29. On substantive justification, the Respondent relied on the case of Peter K Kabau & 2 Others v Riley Services Limited [2022] KEELRC 473 (KLR), where the court held that suspicion of theft under section 44(4)(g) justified dismissal, and Erick Karanja Gakonyo Ano v Samson Gathimba [2011] KEHC 1596 (KLR), which recognized suspicion as a valid basis for dismissal. The principle was further reinforced in Njunge v Safaricom PLC [2025] KEELRC 287 (KLR), where the court held that reasonable suspicion of misconduct, even absent criminal conviction, suffices for dismissal. In Kenya Union of Domestic Hotels, Education Institution, Hospitals And Allied Workers v Pwani University College [2013] KEIC 613 (KLR), the court held that employees acting in bad faith justify disciplinary action. NAKURU CAUSE E102 OF 2024 JUDGMENT PAGE 11 OF 22 30. On evidentiary issues, the Respondent relied on the case of Lwangu v Ndote [2021] KEELC 2 (KLR), where the court ruled that witness statements must be adopted by the witness, not counsel, and Nyakwana v Ongaro [2015] KEHC 8440 (KLR), which reinforced the burden of proof under sections 107, 108 and 109 of the Evidence Act. 31. On remedies, the Respondent submitted that reinstatement is impracticable due to loss of trust, citing Walter Ogal Anuro v Teachers Service Commission [2013] KEELRC 386 (KLR), where the court held reinstatement untenable where confidence between parties is lost. Notice pay is excluded under Section 44 of the Employment Act, compensation under Section 49(1) of the Employment Act is discretionary and unwarranted, and service pay is barred under Section 35(6) since the Grievants were NSSF members. 32. The Respondent therefore prays that the claim be dismissed with costs, terming it an afterthought brought in bad faith. Analysis and determination NAKURU CAUSE E102 OF 2024 JUDGMENT PAGE 12 OF 22 33.The court has considered the pleadings together with the rival submissions by both counsels the issues for determination are as follows: a.Whether the Respondent unlawfully and unfairly terminated the Grievants; b.If (a) above is in the affirmative; whether the grievants are entitled to reliefs sought; and c. Who should bear the costs? 34.In Walter Ogal Anuro v Teachers Service Commission (Supra) where the court held as follows: “However, for a termination to pass the fairness test, it must be shown that there was not only substantive justification for the termination but also procedural fairness.” 35.In Loice Otieno v Kenya Commercial Bank Ltd [2013] KEELRC 271 (KLR) the court held as follows: “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 NAKURU CAUSE E102 OF 2024 JUDGMENT PAGE 13 OF 22 valid and fair, where an employee challenges the summary dismissal. And what does section 41 of the Employment Act require an employer to establish to demonstrate that there has been procedural fairness? In my view, an employer must demonstrate as a matter of fact that it (i) Explained to the employee in a language the employee understood the reasons why it was considering the termination (ii) Allowed a representative of the employee, being either a fellow employee or a shop floor representative to be present during the information/explanation of the reasons (iii) Heard and considered any explanations by employee or his representative (iv) Where the employer has more than 50 employees as required by section 12 of the Employment Act, that it had complied with its own internal disciplinary rules.” 36. In Oyombe v Eco Bank Ltd [2022] KECA 540 (KLR), the Court of Appeal held as follows: NAKURU CAUSE E102 OF 2024 JUDGMENT PAGE 14 OF 22 “What concerns us now is whether there was procedural fairness in the dismissal process. As pointed out earlier, it is evident that the learned Judge did not consider the aspect of procedural fairness. In determining this issue, we must be guided by Section 41 of the Employment Act, which provides the minimum threshold of a fair procedure that an employer ought to comply with in summarily dismissing an employee. The said section provides for notification and hearing before termination on grounds of misconduct in the following way:- “Subject to Section 42 (1), an employer shall before terminating the employment of an employee, on the grounds of misconduct; poor performance or physical in capacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.” “Notwithstanding any other provision of this part, an employer shall, before NAKURU CAUSE E102 OF 2024 JUDGMENT PAGE 15 OF 22 terminating the employment of an employee or summarily dismissing an employee under Section 44 (3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, chosen by the employee within subsection (1) make.” Under this Section, four elements must thus be satisfied for the summary dismissal procedure to be said to be fair, being: - a) An explanation of the grounds of termination in a language understood by the employee; b) The reason for which the employer is considering termination; c) Entitlement of an employee to have a representative of his choice when the explanation of the grounds of terminations is being made; d) Hearing and considering any representation made by the employee and the representative chosen by the employee.” 37. In this present case, the two Grievants, Daniel Bifwoli and Stephen Kagwi, were employed by the Respondent as loaders, with duties that included cleaning the grading hall, offloading materials NAKURU CAUSE E102 OF 2024 JUDGMENT PAGE 16 OF 22 brought to the farm, and loading flowers for export in line with the loading summary and PCN. On 19th March 2024, the Respondent alleged that its security supervisor, while on patrol, discovered two boxes of roses packed in the cold room, an area where no packing ordinarily takes place. The matter was reported to Kieni Police and later transferred to Ol Kalou Police Station under OB No. 02/19/03/2024 for suspected collusion to steal company property, though the Respondent subsequently withdrew the charges. The Grievants were said to have been in the cold room but ran away when they saw the security supervisor. They were suspected of having been conspiring to steal the flowers. 38. The Grievants were arrested and later released. On being released, they were issued with show cause letters dated 22nd March 2024, to which they responded, and were thereafter suspended on 23rd March 2024 on half pay pursuant to Clause 17 of the Collective Bargaining Agreement. Their employment was later terminated, but they appealed against the decision, which was declined and their dismissal was upheld. The Claimant Union then reported the matter to the Labour Office, where a conciliator was appointed. In a report NAKURU CAUSE E102 OF 2024 JUDGMENT PAGE 17 OF 22 dated 25th September 2024, the conciliator recommended reinstatement of the grievants with payment of salaries from the date of dismissal to the present. The Respondent, however, maintained that the dismissal was lawful and justified, insisting it constituted fair termination. 39.Being persuaded by the cited case laws, pleadings and submissions of the respective Parties the court is of the view the Grievants were subjected to unfair and unlawful termination, as they were denied the procedural safeguards guaranteed under sections 41, 43, and 45(2) of the Employment Act, 2007. The Respondent failed to accord them a genuine opportunity to defend themselves, thereby breaching the statutory requirements of fairness and due process. Moreover, the Claimant discharged its evidential burden in line with section 47(5) of the Employment Act, read together with sections 107, 108, and 109 of the Evidence Act, which place the obligation on the employer to justify termination once challenged. The reasons given for terminating the Grievants from their employment were speculative and have no support from facts or evidence. NAKURU CAUSE E102 OF 2024 JUDGMENT PAGE 18 OF 22 40.The testimony of Labour Officer Ms. Kingori, is worthy of consideration. She revealed that she was coerced by the Respondent’s management into issuing fictitious reports. Despite this intimidation, she consistently affirmed that her report dated 25th September 2024 was the true and valid account of the dispute, recommending reinstatement. This underscores not only the lack of substantive justification for the dismissal but also the Respondent’s disregard for the independence of public institutions. In light of these findings, the Court concludes that the grievants’ termination was both procedurally flawed and substantively unjustified. The court proceeds to enter judgment in favour of the Grievants. 41. For the remedies sought, the court will award the Grievants as follows: a. Daniel Bifwoli (1) One month’s salary in lieu of notice - Kshs.13, 119/= (2) 8 months’ compensation for unfair termination (Kshs.13,119/=X8) - Kshs.104, 952/= (3) Service pay is declined as the Grievant Was a member of NSSF Total Kshs.118,071/= - NAKURU CAUSE E102 OF 2024 JUDGMENT PAGE 19 OF 22 b. Stephen Kagwi (1) One month’s salary in lieu of notice - Kshs.18, 883/= (2) 9 months’ compensation for unfair Termination (Kshs.18,883 X 9) Kshs.169,947/= - (3) Service pay will not be granted as Grievant was a member of NSSF. Total Kshs.188,830/= - d.The court will decline to grant the award for reinstatement as the relationship between the Grievants and the Respondent will be strenuous and in any event, reinstatement is a discretionary remedy which the court can grant or decline. e.The court will decline to award service pay as the Respondent used to pay for NSSF as the payslip presented before this Honourable Court. f. The Respondent to issue the Grievants with certificate of service in accordance with section 51 of the Employment Act 42. The Claimant Union will have the costs of the suit. Order accordingly. Dated, Signed and Delivered virtually at Nakuru this 17th Day of July, 2026. NAKURU CAUSE E102 OF 2024 JUDGMENT PAGE 20 OF 22 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. A signed copy will be availed to each party upon payment of Court fees. NAKURU CAUSE E102 OF 2024 JUDGMENT PAGE 21 OF 22 ANNA NGIBUINI MWAURE JUDGE NAKURU CAUSE E102 OF 2024 JUDGMENT PAGE 22 OF 22