https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1804

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NYERI** **ELRC CAUSE NO. E053 OF 2024** **KENYA UNION OF COMMERCIAL** **FOOD AND ALLIED WORKERS…………………………………CLAIMANT** **VERSUS** **DEL MONTE LIMITED……………..………………………….RESPONDENT** **JUDGMENT** 1. The Claimant instituted the present suit on behalf of the grievant, **Anna Murani Wanguthi.** 2. The Claimant avers that the grievant was employed by the Respondent for a period of 24 years and, at the time of the termination of her employment, was serving in the Respondent’s cannery production department. 3. The record bears that the grievant’s employment was terminated with effect from 18th September 2023 on allegations that she was found in possession of a cleaning detergent belonging to the Respondent. 4. The Claimant contends that the termination was neither merited nor warranted, maintaining that the grievant was not found in possession of the detergent as alleged. 5. On the basis of the foregoing, the Claimant has urged the Court to find that the termination was procedurally and substantively unfair and to order the grievant’s reinstatement. In the alternative, the Claimant prays that the Court adopts and upholds the conciliator’s report. 6. The Respondent has opposed the Claim through a Statement of Response dated 22nd April 2025. The Respondent has disputed the Claimant’s assertions and maintains that the grievant failed to exonerate herself from the allegation of being in possession of detergents belonging to the company. It is the Respondent’s position that the termination of the grievant’s employment was justified and fair. Accordingly, the Respondent prays for the dismissal of the suit with costs. 7. The matter proceeded for hearing on 16th April 2026, during which both parties tendered oral evidence in support of their respective cases. **Claimant’s Case** 1. The grievant testified in support of her case as CW1. At the outset, she adopted her witness statement together with the list and bundle of documents filed by the Claimant to constitute her evidence in chief. 2. It was the grievant’s testimony that on 30th June 2023, she reported to work as usual and, upon arrival at the entrance, she clocked in before proceeding to the shelves where employees kept their personal belongings. 3. She stated that she deposited her personal items there, including a detergent which she had purchased on her way to work, and thereafter proceeded to the security desk. 4. She testified that after clocking in at the security desk, she proceeded to her workstation in the production department, where she worked continuously until the end of her shift at 10.00 p.m. 5. The grievant further stated that upon completion of her shift and after undergoing the routine security check, she proceeded directly to the shelf to collect her belongings. However, as she was clocking out, a security officer called her back and requested to inspect the items she had collected from the shelf. 6. The grievant averred that on 5th July 2023, she was summoned to record a statement regarding the incident. Thereafter, she continued working until 16th August 2023, when, together with two of her colleagues, they were subjected to a disciplinary process in relation to the events of 30th June 2023. 7. The grievant further testified that on 16th August 2023, she was issued with a Notice to Show Cause, to which she responded, and subsequently attended a disciplinary hearing on 7th September 2023. 8. She stated that following the disciplinary hearing, she continued performing her duties until 17th September 2023, when she was called upon to collect a letter terminating her employment. 9. The grievant further testified that she lodged an appeal against the disciplinary committee’s decision, but the same did not elicit any favourable response from the Respondent. 10. She further stated that the dispute was subjected to conciliation, but no amicable settlement was reached between the parties. 11. The grievant averred that she had served the Respondent diligently for 24 years and had maintained a clean employment record throughout that period, having never received a warning letter. 12. She explained that she purchased the detergent on her way to work because her shift was scheduled to end late in the evening, making it convenient to buy it beforehand. 13. The grievant further contended that the only area within the Respondent’s premises where detergent could have been accessed was the laundry section, which was located beyond the production area. She maintained that access to all workstations was subject to stringent security checks, which she underwent, and that no detergent was found in her possession. 14. She further testified that the Respondent had not provided a designated facility for employees to store their personal belongings before accessing their workstations, and that the shelves located at the entrance were the only available storage point. 15. The grievant maintained that even if she had been in possession of detergent, she never carried it into the production area. In her view, there was no basis for the Respondent’s allegations, particularly given the absence of a designated storage area for employees’ personal effects. 16. The grievant further contended that the Respondent failed to avail the CCTV footage during the disciplinary proceedings. 17. According to the grievant, the decision to terminate her employment had been premeditated and was founded on unsubstantiated allegations. It was her position that the Respondent acted on mere assumptions and that her termination was therefore unjustified. **Respondent’s Case** 1. The Respondent called oral evidence through **Jacob Lesirma**, who testified as RW1. Mr. Lesirma introduced himself as the Respondent’s Industrial Relations Assistant. Equally, RW1 adopted his witness statement to constitute his evidence in chief. He further produced the Respondent’s list and bundle of documents as exhibits before the Court. 2. It was RW1’s testimony that on 30th June 2023, the grievant was found within the factory premises by security officers while in possession of a cleaning detergent belonging to the Respondent. 3. He further testified that, following the incident, the grievant was issued with a Notice to Show Cause dated 11th August 2023 requiring her to explain why disciplinary action should not be taken against her for allegedly stealing the Respondent’s cleaning detergent. 4. RW1 stated that the grievant responded to the Notice to Show Cause and was thereafter invited to attend a disciplinary hearing, which was subsequently conducted. 5. According to RW1, the grievant failed to provide a satisfactory explanation capable of exonerating her from the allegation of theft of company property. Consequently, the Respondent resolved to terminate her employment with effect from 18th September 2023. 6. RW1 further testified that the grievant lodged an appeal against the decision to terminate her employment. By a letter dated 2nd October 2023, the Respondent upheld its earlier decision and confirmed the termination. 7. He acknowledged that the Claimant subsequently reported a trade dispute to the Ministry of Labour and Social Protection on behalf of the grievant. Following conciliation proceedings, the conciliator issued a report recommending that the grievant be paid salary arrears for the period between 1st April 2023 and the date of termination, together with compensation equivalent to two (2) months’ salary for loss of employment. 8. RW1 testified that the Respondent communicated its position to the Ministry of Labour and Social Protection, maintaining that the termination of the grievant’s employment was fair and justified. 9. It was RW1’s further evidence that he participated in the disciplinary proceedings and was involved in the investigations leading to the grievant’s dismissal. He maintained that the Respondent’s decision was informed by the law and the circumstances of the case and was therefore fair, valid, and justified, as the alleged misconduct had genuinely occurred. 10. RW1 further testified that during the conciliation process, the parties were unable to reach a consensus on the issue of wrongful dismissal and consequently agreed to disagree, resulting in the issuance of a certificate of disagreement. 11. He further averred that the grievant was accorded a fair hearing during the disciplinary proceedings and that she signed the attendance register as evidence. 12. RW1 maintained that the grievant was not entitled to the remedies sought in the suit and that her entitlements were limited to those set out in the letter of termination. **Submissions** 1. The Claimant submitted that the Respondent failed to place before the Court any evidence in support of the allegations that formed the basis of the grievant’s termination. In support of this contention, reliance was placed on the decision in ***Samuel Nguru Mutonya v National Bank of Kenya Ltd (2017) eKLR.*** The Claimant further submitted that the statements attributed to the Respondent’s security personnel were inconsistent. 2. The Claimant further argued that the Respondent’s failure to adduce material evidence before the Court to substantiate its case was indicative of an unwillingness to disclose the true circumstances surrounding the incident. According to the Claimant, this omission demonstrates that the decision to terminate the grievant’s employment was improperly motivated. 3. It was the Claimant’s position that even assuming the grievant had been implicated in the alleged misconduct, she should have been served with a first warning and not a harsh summary dismissal. 4. On its part, the Respondent submitted that theft of an employer’s property constitutes a serious act of gross misconduct warranting summary dismissal. It was the Respondent’s position that ***Section 44(4)(g) of the Employment Act*** entitles an employer to summarily dismiss an employee where there exist reasonable and sufficient grounds for suspecting that the employee has committed, or is reasonably suspected of having committed, a criminal offence against the employer or its property. 5. According to the Respondent, the grievant’s summary dismissal was justified on account of her alleged theft of detergent belonging to the company. 6. The Respondent further argued that under ***Section 44(4)(g) of the Employment Act,*** an employer is not required to prove the commission of the offence beyond doubt, but only to demonstrate the existence of reasonable and sufficient grounds for the suspicion. The Respondent maintained that such grounds existed in the circumstances of this case. 7. Placing reliance on the decisions in ***Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 Others [2019] eKLR*** and ***Galgalo Jarso Jillo v Agricultural Finance Corporation [2021] eKLR,*** the Respondent submitted that it had reasonable grounds to suspect that the grievant had stolen the detergent, given that she was allegedly intercepted between her workstation and the scanner area, before reaching the luggage storage section. 8. The Respondent further submitted that other employees had been found stealing the same detergent, and it had lost trust in anyone suspected of the crime and therefore, it had a reasonable ground for terminating the grievant’s employment. To buttress this point, the Respondent placed reliance on the case of ***Mckinley v BC Tel, [2001] 2 SCR 161; 2001 SCC 38 (CanLII).*** 9. The Respondent further submitted that it fully complied with the requirements of procedural fairness. According to the Respondent, no procedural step was omitted, as the grievant was issued with a Notice To Show Cause, afforded an opportunity to respond to the allegations, invited to and heard at a disciplinary hearing in the presence of her representatives, granted access to the evidence relied upon, including the CCTV footage, afforded an opportunity to question the security officer, and subsequently accorded a right of appeal. In the Respondent’s view, these measures exceeded the minimum requirements prescribed under ***Section 41 of the Employment Act.*** 10. The Respondent further submitted that there is no requirement under the Employment Act obligating an employer to issue a warning before dismissing an employee for theft or other acts of gross misconduct. **Analysis and Determination** 1. Having considered the pleadings, the evidence on record, and the parties’ respective submissions, the following issues arise for determination: 2. ***Whether the Respondent had a valid and fair reason to terminate the grievant’s employment;*** 3. ***Whether the grievant was accorded procedural fairness prior to the termination of her employment; and*** 4. ***Whether the grievant is entitled to the reliefs sought in the Claim.*** **Valid and fair reason for termination?** 1. ***Section 43(1) of the Employment Act*** places an obligation upon an employer to prove the reason or reasons for terminating an employee's employment, failing which the termination is deemed unfair. This provision is to be read alongside ***Section 45(2)(a) and (b) of the Employment Act****,* which provides that a termination is unfair where the employer fails to demonstrate that the reason for the termination was valid and fair, and related to the employee's conduct, capacity, compatibility, or its operational requirements. 2. The foregoing provisions embody the requirement of substantive justification. It is noteworthy that the burden of proving the existence of a valid and fair reason for termination rests squarely upon the employer. 3. In the present case, the reason advanced by the Respondent for terminating the grievant's employment, as discerned from the letter of termination, was that on 30th June 2023 at about 10.00 p.m., she was found in possession of a cleaning detergent belonging to the Respondent. 4. The grievant has consistently denied the allegation that she stole the detergent from the Respondent. Her case is that she purchased the detergent in the market on her way to work and left it at the security area near the main entrance before proceeding to her workstation. 5. It is common ground that when the grievant was leaving the Respondent's premises at the end of her shift, a liquid detergent was found inside her handbag. The point of contention is whether that detergent belonged to the Respondent. More specifically, the issue is whether the grievant carried the detergent out of the Respondent's production area or whether she merely collected the detergent from the luggage storage area where she claims to have deposited it upon reporting to work. 6. According to the grievant, she was first searched by the Respondent's security personnel before proceeding to collect her belongings, including the detergent, from the storage area. 7. The Respondent, on the other hand, maintains that the detergent was discovered in the grievant's handbag immediately after she exited the production section and while she was undergoing a security check. In support of this position, the Respondent produced a handwritten statement dated 3rd July 2023 by one ***Pauline Tarkus***, a security officer. In that statement, Pauline indicated that she discovered the detergent in the grievant's handbag while conducting a search on female employees. She further alleged that the grievant attempted to offer her Kshs 1,000/= as a bribe and that she immediately summoned her supervisor, one ***Abel,*** who witnessed the incident and took photographs. 8. The Respondent further exhibited the minutes of the disciplinary hearing held on 7th September 2023, in which Pauline is recorded as having stated that she found the detergent inside the grievant's handbag before the latter reached the body scanner. 9. Further, the disciplinary proceedings exhibited indicate that a review of the CCTV footage showed the grievant passing through the scanner area without collecting any items from the luggage storage section. 10. During his testimony before the Court, RW1 similarly stated that he viewed the CCTV footage showing the grievant leaving the production area with her handbag. According to RW1, the detergent was discovered inside the grievant’s handbag immediately upon being searched. 11. It is therefore evident from the foregoing that the parties have presented two irreconcilable versions of events regarding the precise point at which the detergent was allegedly found in the grievant's possession. 12. From the foregoing, it becomes apparent to the Court that ***Pauline Tarkus*** was a critical witness, being the person who allegedly recovered the detergent from the grievant. It is therefore unclear why the Respondent did not call her to testify in Court. Indeed, her evidence would have been vital in assisting the Court to determine the true sequence of events and, in particular, the exact point at which the grievant was intercepted and found to be in possession of the liquid detergent. 13. Equally significant is the Respondent's consistent assertion that the CCTV footage showed the grievant walking past the scanners without retrieving any item from the luggage storage area. Therefore, by the Respondent’s own account, the CCTV footage constituted the most direct and compelling evidence in support of its case. 14. Yet, despite its apparent significance, the CCTV footage was never produced before the Court. Instead, what was presented was a mere narration of what was allegedly observed in the CCTV footage by the Respondent. 15. As it stands, the conflicting narratives advanced by the parties could readily have been resolved through the production of the CCTV footage. 16. The Evidence Act provides a clear framework for the production and admission of electronic evidence. In the present case, the Respondent has not offered any explanation as to why it failed to invoke that procedure and place the CCTV footage before the Court. 17. Indeed, apart from RW1’s narration of what was allegedly captured in the CCTV footage, there is no independent evidence demonstrating that the grievant was found in possession of the liquid detergent immediately upon exiting the production area. 18. In arriving at the foregoing finding, the Court is mindful of the applicable standard of proof in employment disputes, particularly that the Respondent was not required to prove the grievant’s alleged misconduct beyond reasonable doubt. 19. However, on the basis of the evidence on record and in light of the conflicting accounts presented by the parties, the Court is unable to conclude that there existed a reasonable and genuine basis upon which the Respondent could justify terminating the grievant’s employment on allegations that she had stolen the detergent from its premises. This uncertainty could easily have been resolved through the production of the CCTV footage. 20. In the absence of both the CCTV footage and the testimony of ***Pauline Tarkus,*** the Respondent's allegations remain unsubstantiated. Consequently, it cannot be said that the Respondent has demonstrated the existence of a fair and valid reason for terminating the grievant's employment. 21. In the premises, I find and hold that the Respondent has failed to discharge its statutory burden of proving on a balance of probabilities that there existed a valid and fair reason for the grievant's termination from employment. Accordingly, the grievant’s termination from employment was substantively unfair for want of compliance with ***Section 43(1)*** *and* ***Section 45(2)(a) and (b) of the Employment Act.*** **Procedural fairness?** 1. In addition to establishing substantive fairness, an employer is further obligated under ***Section 45(2)(c) of the Employment Act*** to ensure that the employee is subjected to a fair procedure prior to termination. The specific requirements of procedural fairness are set out under ***Section 41 of the Employment Act***, which enjoins an employer to notify the employee of the allegations levelled against them and afford them an opportunity to respond, in the presence of a shop floor union representative or a fellow employee of their choice. 2. In the present case, it is not disputed that the grievant was served with a Notice to Show Cause and that she duly responded thereto. It is further not contested that she was subsequently invited to attend a disciplinary hearing, which she attended in the company of two (2) representatives and was afforded an opportunity to be heard by the disciplinary panel. 3. In applying the provisions of ***Section 41 of the Employment Act*** to the circumstances of this case, the Court is satisfied that the Respondent complied with the requirements of procedural fairness and accorded the grievant an opportunity to be heard prior to the termination of her employment. Therefore, the Respondent complied with the procedural safeguards contemplated under Section 41 of the Act. **Reliefs?** 1. Having found that the Respondent failed to discharge the burden of proving that the grievant’s termination from employment was founded on a fair and valid reason, the Court awards the grievant compensation equivalent to eight (8) months’ gross salary. This award is guided by, *inter alia*, the length of the employment relationship, which was quite substantial. 2. The grievant’s letter of termination further indicated that she was entitled to payment of salary for days worked up to 18th September 2023, salary in lieu of notice equivalent to 30 days, pro-rated leave entitlement, and provident fund benefits in accordance with the applicable Retirement Benefits Authority (RBA) regulations. The said terminal dues shall be paid to the grievant in the event the same have not already been settled. **Orders** 1. In the final analysis, judgment is entered in favour of the Claimant against the Respondent, and the grievant is awarded compensation equivalent to eight (8) months of her gross salary, amounting to **Kshs 136,995.84.** The said sum shall attract interest at court rates from the date of judgment until payment in full. 2. The Respondent shall bear the costs of the suit. **DATED, SIGNED** and **DELIVERED** at **Nyeri** this**26th** dayof **June,** 2026. ……………………………… **STELLA RUTTO** **JUDGE** **In the presence of:** For the Claimant Ms. Manene For the Respondent Mr. Uvyu Court Assistant Ndati **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 had 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. **STELLA RUTTO** **JUDGE**