Nyamoti v Del Monte Kenya Ltd (Cause E303 of 2024) [2026] KEELRC 1743 (KLR) (25 June 2026) (Judgment)

Nyamoti v Del Monte Kenya Ltd (Cause E303 of 2024) [2026] KEELRC 1743 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1743 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E303 of 2024 CN Baari, J June 25, 2026 Between Stephen Thomas Nyamoti Claimant and Del Monte Kenya Limited Respondent Judgment 1.This judgment relates to the Claimant’s Statement of Claim dated 16th April, 2024, wherein he seeks the following reliefs as against the Respondent:i.Twelve months' compensation for unfair and unlawful termination amounting to Kshs.(100,014.4712) 1,200,173.64/=ii.An award of general damages for breach of legitimate expectations and breach of contract for expected years of service up to age of retirement being (1,200,173.642.9) 3,480,503.56/=iii.An order of assessment and payment of all wages owed to the claimant for the acting positions of Senior Departmental Head - Security and Superintendent - Security from the year 2010 - 2023 when the Claimant was relieved of duties.iv.An award of punitive damages in favour of the Claimantv.An award of damages for pain and sufferingvi.Interest on (i), (ii), (iii) above at court rates from the date of termination until payment in fullvii.Costs of this suit. 2.The Respondent entered an appearance on 4th June, 2024, and proceeded to file a Memorandum of Response to the claim of even date. 3.The Claimant’s case was heard on 18th June, 2025, when the Claimant (CW1) and his other witness, John Miano (CW2), testified in support of the Claimant’s case. They adopted their witness statements and produced the Claimant’s list and bundle of documents as exhibits in the case. 4.The Respondent’s case was subsequently heard on 15th December, 2025. One Jacob Lesirma (RW1), the Respondent’s industrial relations officer, testified in support of the Respondent’s case. He adopted his witness statement and produced the Respondent’s list and bundle of documents and its further list and bundle as exhibits in the matter. 5.Submissions were filed for both parties in the matter and have been duly considered. The Claimant’s Case 6.The Claimant’s case is that he was employed by the Respondent on 1st October 1992 as a Security Guard earning Kshs. 2,488.66 per month. He states that through consistent promotions and salary increments on 1st April 2010, earning Kshs.136,414.67 per month. Based on satisfactory performance, he rose through the ranks and was appointed Security Foreman. 7.He avers that he served in various positions over the years, ultimately reporting to the Security Manager as Security Foreman. He further states that his promotions and salary reviews were determined solely by the Respondent, in recognition of his satisfactory performance. 8.The Claimant avers that upon his promotion to supervisory and managerial positions, his employee number was changed from 52860 to 1300, a designation reserved for managerial staff, which he retained after becoming Security Foreman. He states that as a condition of promotion to management, he was required to leave the Kenya Plantation Workers Union. 9.It is the Claimant’s case that none of his employment contracts contained a termination clause. 10.The Claimant further contends that he served the Respondent diligently and faithfully for over 31 years, maintaining a clean disciplinary record with no allegations of misconduct. He also states that upon his promotion to Security Foreman in 2010, he was verbally assigned to act in two additional managerial capacities, being Senior Departmental Head – Security, and Superintendent – Security. He avers that in those acting roles, he undertook various additional responsibilities beyond those of Security Foreman. 11.The Claimant states that after assuming additional managerial duties, his request for promotion was met with threats of dismissal. He contends that the Respondent subsequently orchestrated his removal from employment without according him a fair hearing. 12.It is his case that as the sole Security Foreman for the Eastern Zone, he was on call at all times and carried out his duties despite inadequate manpower. He states that he was suspended on 22nd November 2023 over allegations of colluding in pineapple theft, which he denies as unsubstantiated. He also denies failing to promptly report Peter Mutuko's disappearance, maintaining that he reported the incident immediately after learning of it on 17th November 2023. 13.The Claimant states that the incident of 16th November 2023 had already been reported by the Security Supervisor directly to the Security Manager while the Claimant was on leave, and denies any failure to report the incident. He further contends that the allegations against him were unsubstantiated and that the Respondent subjected him to a sham disciplinary process by issuing a Notice to Show Cause on 13th December 2023, conducting a disciplinary hearing on 20th December 2023, and terminating his employment on 22nd December 2023. 14.The Claimant states that although he lodged an appeal against his dismissal, it was dismissed without a hearing by the Acting Deputy General Managing Director, who had also participated in the initial disciplinary proceedings. He further contends that the Respondent failed to substantiate the allegations of collusion in theft with credible evidence and that the termination was unfair, as he was not afforded a fair disciplinary process supported by the relevant investigative reports. 15.The Claimant states that his dismissal caused him significant financial and emotional hardship, leaving him unable to meet obligations such as his children's school fees, rent, food, medical expenses, and loan repayments. 16.It is his case that the unsubstantiated allegations of theft damaged his reputation, preventing him from securing alternative employment and causing him to be viewed as dishonest within his community, thereby diminishing his standing, including his role in the local Nyumba Kumi security initiative. 17.The Claimant also contends that the Respondent withheld his terminal dues and salary arrears unless he signed a discharge agreement, which he declined to execute, and the Respondent only paid his terminal benefits after a formal demand was made by his advocates. 18.The Claimant maintains that his dismissal was unjustified despite his long and exemplary service, promotions, and consistent performance. He contends that the Respondent failed to establish any valid, verifiable, or substantiated reason for terminating his employment. 19.He further states that the disciplinary and termination process was arbitrary, unfair, and financially humiliating, and that he was neither provided with credible evidence of the allegations against him nor afforded a fair appeal hearing. 20.The Claimant further asserts that the stated reasons for his dismissal were a pretext and that the Respondent's true motive was to remove him from employment to facilitate the outsourcing of his duties. 21.The Claimant alleges that his dismissal was based on unproven allegations, that he was made to perform additional managerial duties without extra pay, and that he suffered racial discrimination in remuneration and terms of employment. He maintains that the Respondent lacked a valid reason to terminate his employment, rendering the dismissal unlawful and unfair under the Employment Act, 2007. 22.The Claimant confirmed on cross-examination that he had worked for the Respondent for 31 years, and that he took up additional roles in his last 14 years of service. 23.The Claimant further confirmed that he was previously issued a warning letter on 5th November, 2023. He avers that he was suspended to allow an investigation, was issued a show cause letter, which he responded to, and that he attended a disciplinary hearing in the company of an employee of his choice prior to his termination. He averred that the termination letter listed the reasons for his termination and tabulation of his terminal dues. 24.It is the Claimant’s position that although the disciplinary process had no appeal mechanism, he still appealed against his dismissal and that his appeal was considered and declined. 25.The Claimant further confirmed that his terminal dues were sent to his SACCO and that he was issued with a certificate of service. 26.The claimant testified that he did not know the job qualification of his security manager. 27.CW2 told the court that he worked with the claimant for close to 30 years and had never heard of theft incidents where he was involved. 28.The Claimant prays that his claim be allowed. The Respondent’s Case. 29.The Respondent states that the Claimant was employed as a Security Guard in September/October 1992 under a written employment contract, which required him to perform duties assigned by his superiors and permitted suspension for misconduct. 30.The Respondent avers that the Claimant's salary was subject to discretionary review based on performance and additional responsibilities, and that at the time of termination, he earned Kshs. 109,114.47, and not the amount claimed. It confirms that the Claimant was promoted from Security Guard to Security Lead Guard, then Supervisor, and finally Security Foreman. 31.The Respondent denies requiring the Claimant to resign from the Kenya Plantation Workers Union, maintaining that supervisory and managerial employees were excluded from union membership under the union's constitution. It further contends that its employment policies and disciplinary procedures formed part of the Claimant's terms of employment and provided lawful grounds for termination where appropriate. 32.The Respondent admits that the Claimant served for over 30 years but denies that his record was exemplary. It states that, before his dismissal, the Claimant had already been issued with a warning letter for negligence relating to a motor vehicle accident and was later suspended for failing to promptly report a security incident. 33.The Respondent further denies that the Claimant was assigned additional acting roles or that it orchestrated his removal from employment. It maintains that the Claimant's dismissal followed a thorough investigation into his alleged misconduct and that the disciplinary process was conducted fairly and in accordance with its established disciplinary procedures. 34.The Respondent admits that the Claimant was the Security Foreman in charge of the Eastern Zone at its Thika plantation, but states that the plantation was divided into two zones, each managed by a Security Foreman and supported by three supervisors working in shifts. 35.The Respondent denies that the Claimant was required to be physically present or on duty at all times. It asserts that he was provided with a mobile phone to enable him to supervise and support the shift supervisors remotely when necessary, and maintains that it provided him with adequate operational support. 36.The Respondent states that the Claimant was suspended on 22nd November 2023 for an initial 14 day period to facilitate investigations into suspected misconduct, with the suspension later being extended by 7 days in accordance with its disciplinary procedures. 37.The Respondent denies the Claimant's allegations regarding the reporting of the incident but admits the dates on which the Notice to Show Cause, disciplinary hearing, and termination occurred. It maintains that the Claimant's involvement in activities detrimental to the Respondent's property constituted a valid ground for summary dismissal. 38.The Respondent denies that the disciplinary process was a sham, maintaining that it was conducted fairly and in accordance with both the law and its disciplinary procedures. It states that the Claimant was suspended to facilitate investigations, informed of the allegations through a suspension letter and a Notice to Show Cause, and given adequate time to respond. 39.The Respondent further avers that the Claimant attended the disciplinary hearing on 20th December 2023, accompanied by a representative of his choice, one John Miano, and that after considering the Claimant's explanation and finding it unsatisfactory, the Respondent resolved to terminate his employment and communicated that decision by letter dated 22nd December 2023. 40.The Respondent states that although its disciplinary procedure does not provide for an appeal, it nevertheless considered the Claimant's appeal and upheld the decision to terminate his employment. It further denies that it was barred from dismissing the Claimant, maintaining that summary dismissal was justified by his misconduct. 41.The Respondent also denies the Claimant's allegations of financial hardship and reputational damage. 42.Finally, the Respondent denies withholding the Claimant's terminal dues, and asserts that the document the Claimant refused to sign was a standard Termination Clearance Certificate, intended solely to facilitate the return of the Respondent's property, and that the Claimant's refusal delayed the clearance process. 43.The Respondent denies that the Claimant's termination was unlawful, unfair, discriminatory, or motivated by an intention to force him out of employment. It maintains that the dismissal was procedurally fair, substantively justified, and based on the Claimant's misconduct. 44.The Respondent also denies any allegation of racial discrimination, reiterates that it properly considered and rejected the Claimant's appeal despite having no obligation to do so, and contends that the Claimant's demand letter was unfounded because the termination was lawful and all terminal dues were duly paid. 45.On cross-examination, RW1 indicated that theft was the main ground for the claimant’s termination and for failing to show measures taken to prevent the theft. He further told the court that nobody contradicted the Claimant’s assertion that he reported the theft incident during the hearing. 46.It is RW1’s position that from the WhatsApp message produced in evidence, it is clear that the Claimant reported the incident to the Security manager, but avers that he did not produce the message during the disciplinary hearing. 47.It is his position that a report of the theft was made to the police, but the report is not before the court, though it was relied on to terminate the Claimant. 48.It is his further evidence that the thieves that were caught by CW2 were interrogated and that none of them mentioned the Claimant per CW2’s evidence. He also testified that nothing shows that the Claimant received any money from the thieves. 49.RW1 confirmed that the Claimant earned a monthly salary of Kshs.109,114.47/- while his immediate supervisor earned Kshs.1,289,800/-. 50.RW1 confirmed that the Claimant was paid his final dues through his last payroll account after his advocate wrote a demand to the Respondent. 51.The Respondent prays that the court dismisses the Claimant’s claim with costs. Analysis and Determination 52.From the pleadings, the evidence adduced, and the rival submissions, the Court identifies the following issues for determination:i.Whether the Claimant’s termination was both substantively and procedurally justified.ii.Whether the Claimant is entitled to the reliefs sought Whether the Claimant’s termination was both substantively and procedurally justified 53.Sections 43, 45, and 47(5) of the Employment Act impose a dual burden in termination disputes. The employee bears the initial burden of establishing the fact of dismissal or termination, while the employer bears the burden of proving the reasons for termination and that those reasons were valid and fair. Failure to discharge this burden renders the termination unfair. 54.Further, Section 41 demands that an employer adhere to the tenets of fair process in terminating the services of an employee. 55.On substantive justification, the Respondent's case is that the Claimant was dismissed for engaging in activities detrimental to the Respondent's property, namely, collusion in pineapple theft and failure to promptly report a security incident. 56.The Claimant, however, categorically denies the allegations and contends that no credible evidence linking him to the theft was ever disclosed to him or produced during the disciplinary process. CW2 also testified that he had worked with the Claimant for 30 years and had never known him to be involved in any form of theft. 57.Further, the Respondent’s witness (RW1) admitted under cross-examination that there was no evidence indicating that the Claimant was in receipt of stolen goods or that he colluded with the thieves, and the thieves did not implicate him in the theft. 58.The Court further notes that the police report relied upon was not produced in court, and the WhatsApp evidence showed that the Claimant did report the incident to the Security Manager. 59.From the pleadings, the Respondent repeatedly asserts that it conducted investigations and received "credible information” on the Claimant’s involvement in the theft in issue. However, it does not plead the nature of that information, the identity of the investigators, the findings of the investigation, or any documentary material linking the Claimant to the alleged theft. 60.Mere assertions that investigations were conducted cannot, without evidential support, satisfy the statutory burden imposed by Section 43 of the Employment Act. 61.In CMC Aviation Limited v Mohammed Noor [2015] KECA 775 (KLR), the Court of Appeal emphasized that the employer must demonstrate that it genuinely believed, on reasonable grounds following proper investigation, that the employee committed the misconduct complained of. The existence of suspicion alone is insufficient. 62.Further, in Mary Chemweno Kiptui v Kenya Pipeline Company Ltd [2014] eKLR, it was held that suspicion, however strong, is not sufficient to justify termination, there must be proof on a balance of probability. 63.Similarly, in Co-operative Bank of Kenya Ltd v Banking Insurance & Finance Union (Kenya) [2017] eKLR, the Court held that an employer must present evidence demonstrating culpability beyond allegation. 64.In light of the foregoing, the Court finds that the Respondent failed to prove on a balance of probability that the Claimant participated in the alleged theft or misconduct, which renders the termination substantively unjustified, hence unlawful and unfair. 65.On procedural fairness, Section 41 of the Employment Act requires that an employee be notified of allegations in a language the employee understands, and be heard in response to the charges in the presence of a fellow employee or union representative. 66.In Postal Corporation of Kenya v Andrew K. Tanui [2019] eKLR, the Court of Appeal held that section 41 is mandatory and not cosmetic, and that an employer must not only have a valid reason but must also communicate the allegations with sufficient particularity to enable the employee to effectively answer them before disciplinary action is taken. 67.The evidence before court shows the Claimant was issued with a suspension letter and a Notice to Show Cause, which he admits having responded to. It is also not disputed that a disciplinary hearing was conducted on 20th December 2023, that the Claimant was accompanied by a representative (CW2), and that, subsequent thereto, a termination letter was issued with reasons for the termination. 68.These steps demonstrate substantial compliance with the procedural requirements under Section 41 of the Employment Act. 69.Further, although the Claimant also alleges that his appeal was dismissed by the Acting Deputy General Managing Director, who had participated in the original disciplinary hearing, there is generally no statutory obligation to provide an internal appeal unless provided by contract or policy. Once an employer elects to hear an appeal, it should ideally be conducted impartially. Nevertheless, participation of the same officer in the appeal would not, in my view, by itself invalidate the dismissal where Section 41 had otherwise been complied with. 70.The court therefore finds the termination of the Claimant’s employment procedurally fair and lawful. Whether the Claimant is entitled to the reliefs sought Compensation for Unfair Termination 71.Under Section 49(1)(c) of the Employment Act, the Court can award up to 12 months’ salary on account of compensation for unfair termination/wrongful dismissal. 72.Considering that the Claimant served the Respondent for over 31 years, the lack of proven misconduct on his part, and the fact that the Claimant cannot now secure comparable employment with another employer, leads me to the conclusion that the Claimant has made a case for maximum compensation, and I proceed to award 12 months' salary as compensation for the unfair termination. General Damages for Breach of Legitimate Expectation 73.This claim is untenable as there is never a guarantee that one will hold a position until retirement. 74.The Court in Coastal Bottlers Ltd v Kimathi Mithika [2018] KECA 523 (KLR), held that employment disputes are governed by the Employment Act and not common law damages for breach of contract or legitimate expectation. 75.Further, in D.K. Njagi Marete v Teachers Service Commission [2020] eKLR, the Court of Appeal reiterated that general damages are not awardable in employment disputes where statutory remedies exist. 76.This claim therefore fails.Acting Allowances (2010–2023) 77.The Claimant based this claim on verbal assignment to acting roles. No written appointment letters were produced, and no evidence of approval of acting allowance under the employer’s policy was shown. 78.This claim is therefore not proven, and it fails. Punitive and General Damages 79.Punitive damages are not available in employment disputes under the Employment Act. 80.This claim equally fails. Pain and Suffering 81.This claim is equally not recoverable in employment termination disputes as a separate head of damages. It is dismissed. 82.In whole, the Claimant’s Claim succeeds and orders granted as follows:-a.A declaration that the termination of the Claimant’s employment is substantively unfair and unlawful.b.That the Respondent shall pay the Claimant 12 months' salary as compensation for the unfair termination at Kshs. 1,512,912/-c.The Respondent will bear the costs of the suit and interests on (b) above from the date of this Judgment until payment in full. 83.Judgment accordingly. SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 25TH DAY OF JUNE, 2026.C. N. BAARIJUDGEAppearance:Mr. Mwenesi present for the ClaimantMr. Macharia present for the RespondentMs. Esther S- C/A