Ogola v Bamburi Cement PLC (Cause E056 of 2025) [2026] KEELRC 1294 (KLR) (18 May 2026) (Judgment)

Ogola v Bamburi Cement PLC (Cause E056 of 2025) [2026] KEELRC 1294 (KLR) (18 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1294 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Cause E056 of 2025 M Mbarũ, J May 18, 2026 Between Peter Okoth Ogola Claimant and Bamburi Cement PLC Respondent Judgment 1.The claimant is a male adult. The respondent is a company incorporated in Kenya.The respondent employed the claimant as an electrical technician at the Mombasa plant under Job Group 8 on 1 September 2010. He worked until the year 2022, earning a salary of KSh. 145,572. 2.The claim is that on 13 December 2022, the respondent unlawfully and unfairly terminated the claimant’s employment and denied him a right of appeal as required under the Employment Act (the Act). 3.On 12 October 2022, the claimant was confronted by the respondent’s security guards at the end of his shift, who informed him that he was required to report to the security office by the human resources manager. Upon arrival, he was arrested and accused of stealing items belonging to the respondent. 4.The claimant was then taken to Kadzandani Police Station, where he wrote his statement and was coerced into admitting to stealing the items. He was released on cash bail and was to report back for further investigations. 5.Upon conclusion of the police investigations, it was established that the claimant had no case. The file was placed with the Director of Public Prosecutions (DPP) to decide whether to charge the claimant. 6.The DPP agreed with the DCI and decided there was no case against the claimant. The file was closed. But before the police could clear the claimant, the respondent invoked internal disciplinary procedures, resulting in the unfair termination of employment. 7.The claim is that the claimant was taken through a traumatic experience, he suffered mental health issues and was referred to the clinical psychologist on 15 October 2022 and later to Chiromo Lane Medical Centre, where on both occasions he was diagnosed with anxiety, fear, sleep disturbance and flashbacks. 8.While the claimant was undergoing treatment, the respondent proceeded with internal disciplinary procedures and ultimately dismissed the claimant on 7 December 2022. This was unlawful and unfair because the respondent failed to adhere to due process under section 44(4) of the Act, and there was no proof of gross misconduct. The claimant's right of appeal was not protected, and no notice was issued as required under section 40(1) (f) of the Act. The terminal dues required under section 40(1) (e) of the Act were not paid.The claimant is seeking the following dues:a.A declaration that the employment term was terminated unfairly and unlawfully.b.Certificate of service.c.Damages for unwarranted termination of employment Ksh. 1,746,864.d.Salary for December 2022 Ksh. 145,572.e.Notice pay Ksh. 145,572.f.Leave pay for 2022 Ksh. 123,176.g.General damages.h.Costs and interests on the awards. 9.The claimant testified that while working for the respondent, he was also the branch secretary of the Kenya Chemical Workers Union, Bamburi Branch, and the chairperson at the head office in Nairobi. He thus attended several disciplinary hearings for all union members. 10.The claimant testified that the disciplinary minutes filed by the respondent do not accurately reflect the proceedings. He was accused of stealing several items at work, but they were found in his bag. There was no investigation by security or the police to confirm that he placed these in his bag. The CCTV footage produced was just images, with no indication of how the items were placed in his bag. There was no audio with an explanation. The footage does not show him stealing any items. 11.The claimant was cross-examined and admitted that he was invited to the disciplinary hearing. He had a chance to ask questions, but the responses were not captured in the minutes. The CCTV captured only him handing a bag to the security team, who are outsourced and not employees of the respondent. He did not raise any questions about how the disciplinary hearing was conducted and only signed the attendance register. 12.The claimant testified that the alleged stolen items were never recovered from his bag. When the security team confronted him about a search, his bag was taken and searched in a separate room, not in his presence. The CCTV footage does not show any stolen items. Upon police investigations, nothing was found against the claimant. The disciplinary hearing was conducted with a predetermined mind, and the appeal was not heard as required by law. 13.In response, the respondent admitted that the claimant was an employee earning ksh. 145,572 per month. The claimant had two (2) previous disciplinary issues in 2022 for which he was issued a warning letter. 14.On 7 December 2022, the claimant’s employment was terminated by summary dismissal after a due process involving investigations, interviews, and a fair disciplinary process following a case of gross misconduct on 13 October 2022. Reasons leading to dismissal involved the claimant knowingly being in possession of the respondent’s electrical spares and attempting to remove them from the premises without authorization, an act that amounted to breach of trust, confidence, and the Code of Business Conduct. 15.On 13 October 2022 at 1755 hours, while the claimant was exiting the respondent’s premises at the end of his shift through gate B, a security guard who was outsourced, upon searching the claimant’s bag, found the following items:a.Proximity switches – 15 pieces.b.Phase monitors relay – 1 piece.c.Turbo initiator switch – 1 piece. 16.These items are electronic spares, the property of the respondent and the claimant was in possession of them without authorization. This was reported to the respondent, and upon questioning, the claimant was apologetic and requested a private discussion regarding the matter. He stated that he had forgotten the items inside the bag but this explanation was found unsatisfactory. The matter was escalated to the Security Liaison Officer, who retained the items. 17.On 14 October 2022, the respondent’s security team reported the matter to Mwatamba Police Station. The OCS ordered investigations and a visit to the scene. They found probable cause and arrested the culprit for interrogation. The claim failed to explain why he was in possession of the recovered items, yet, as a technician, he was well-versed in the process of removing electrical items from the store, and that their removal without proper procedures was for purposes of theft. 18.The respondnet’s gates are manned by a reputable and professional security company that maintains overall security within the premises. The claim does not detail the facts leading to the incident on 13 October 2022, but states that he was not charged in court with a criminal offence. 19.The alleged mental anguish and trauma were addressed through the respondent’s health policy that supports its employees. There's medical cover that allows employees to attend various medical facilities for treatment. 20.Following the incident on 13 October 2022, the stolen items were photographed, and the same were established to bear the respondent’s unique codes. The claimant had no authorization to exit the premises with them. On 17 October 2022, a joint inventory was conducted by the respondent’s security team and the store's supervisor, and it was established that the recovered items matched those in the claimant's bag. 21.On 18 October 2022, the claimant was issued with a notice to show cause why summary dismissal should not be issued over his gross misconduct. The notice gave the particulars of the allegations made against the claimant and required a written response by 21 October 2022. He was invited to the disciplinary hearing, attended it, and had all his rights secured; he attended with another employee of his choice. The claimant had no satisfactory explanations for his conduct, leading to the decision of summary dismissal. He was allowed a right of appeal, which he exercised, but he had no new grounds; hence, the appeal was dismissed, and the summary dismissal was confirmed. 22.In evidence, the respondent called Robert Muhita, the human resource director at the Mombasa plant, who testified that he has been at the service of the respondent for the last 7 years. He is thus familiar with the disciplinary procedures that applied to the claimant. 23.Muhita testified that an incident was reported where the claimant was found with unaccounted and unauthorised electronic goods in his bag as he exited the premises on 13 October 2022. The security check found these items and reported them to the respondent. There were investigations by the police and the respondent. He was issued a notice to show cause and a disciplinary hearing, where due process was adhered to, but he failed to provide a satisfactory response. 24.Muhita testified that the claimant's assertion that the respondent picked him with a predetermined mind is not correct. Previously, he had disciplinary cases and a warning issued. The items found in his bag were not authorized. An investigation and stock check in the stores revealed that the items found on the claim had been irregularly removed and without proper explanation. As an electrician, he was conversant with item removal and accounting, which he had failed to address in this case. This amounted to theft. 25.Muhita testified that the claimant’s defence was that he had left his bag in the locker and that the items could have been placed there by others. However, each employee had a personal locker with a key. The claimant’s locker had not been broken into. The security person who identified the items in the client's bag had no reason to place them there. He was from an outsourced security company, G4S. 26.Following internal investigations and a disciplinary hearing, a decision was taken to dismiss the claimant summarily for gross misconduct. 27.The police were investigating the matter, but there is no outcome communicated to the respondent. 28.Muhita testified that the claimant filed his appeal, it was assessed and found unnecessary to conduct a hearing. It was thus summarily dismissed. The claimant has since been paid his terminal dues including:a.8 days worked in December 2022 Ksh. 37,567.b.Accrued leave days Ksh. 245,296. Certificate of Service was issued dated 2 February 2023. 29.At the close of the hearing, parties filed written submissions. These are analysed in the body of the judgment. Determination 30.The issues for determination are whether there was unlawful and unfair termination of employment. 31.Whether the remedies sought for compensation, payment of damages, and costs are due. 32.By a notice dated 7 December 2022, the respondent terminated the claimant’s employment by summary dismissal. His reasons were that following the issuance of a notice to show cause dated 18 October 2022, the response dated 21 October 2022, and the disciplinary hearing held on 31 October 2022 and 2 November 2022, the disciplinary panel found him culpable for breach of trust, breach of confidence, and breach of the company code of conduct. Under section 44 of the Employment Act (the Act), the respondent found it necessary to terminate employment with payment of terminal dues. 33.Under sections 44(3) and 44 (4) of the Act, the employer is entitled to sanction summary dismissal where the employee is found to be in breach of a fundamental provision of the employment contract and to have committed gross misconduct. The safeguard to the employee is under section 41(2) of the Act, where he must be allowed the due process of notice and hearing in the presence of another employee, as held in Cooperative Bank of Kenya Limited v Yator [2021] KECA 95 (KLR) and Kenya Revenue Authority v Gitahi & 2 others [2019] KECA 300 (KLR). 34.In this case, the claimant was taken through the procedural requirements for a disciplinary hearing. He was issued a show-cause notice setting out the allegations against him, and he filed a response and attended a disciplinary hearing. He, however, maintained that the accusation that he had stolen various electronic items was false. He was not found with the items, and he did not know how they ended up in his bag. He asserted that the police investigated the matter and did not charge him. He was not culpable. 35.However, in employment relations, under section 43(2) of the Act, whether the employee is charged with a criminal offence for any shop floor misconduct or not, where the employer genuinely believes there is a reason to justify a termination of employment, upon being taken through the due process, such internal disciplinary mechanism is sufficient. 36.This is aptly captured in Bamburi Cement Limited v William Kilonzi [2016] eKLR , the court held that:The question that must be answered is whether the appellant’s suspicion was based on reasonable and sufficient grounds. According to section 47(5) the burden of proving that the dismissal was wrongful rests on the employee, while the burden of justifying the grounds of wrongful dismissal rests on the employer. It is a shared burden, which strictly speaking amounts to the same thing. …The test to be applied is now settled. In the case of the Judicial Service Commission vs. Gladys Boss Shollei, Civil Appeal No. 50 of 2014, …Whether an employer is justified in dismissing an employee on the grounds of dishonesty is a question that requires an assessment of the context of the alleged misconduct. More Specifically the test is whether the employee’s dishonesty gave rise to a breakdown in the employment relationship. This test can be expressed in different ways. One could say, for example, that just cause for dismissal exists where the dishonesty violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or directly inconsistent with the employee’s obligations to his or her employer. 37.Thus, the standard of proof upon the employer is on a balance of probability, not beyond a reasonable doubt, and all the employer is required to prove are the reasons that it “genuinely believed to exist,” causing it to terminate the employee’s services. See Standard Group Limited v Jenny Luesby [2018] KECA 353 (KLR). 38.In this case, upon the show-cause request, the claimant denied that the items found in his bag were placed there by him. He claimed he had left the bag in his locker, and at the end of his shift, security found these items. He was not present when they were searching his bag. 39.There is an investigation report. The claim does not contest it, save to urge the court that the items allegedly found in his bag did not emanate from him. There was a stock check in the stores, and indeed, these items had left the store without proper procedure. The claimant had a locker assigned to him, and it was not broken into. 40.At the disciplinary hearing, the claimant was shown the CCTV footage. The items in his bag were identified. The only reason he dissociated himself from the items is that the footage had no audio explaining the events that led to the items being in his bag. 41.Breach of trust and confidence by the employer against the employee goes to the heart of an employment relationship. This is compounded by the requirements of section 45(5)(2) that, in deciding whether it was just and equitable for an employer to terminate the employment of an employee, for the purposes of this section, the court should consider the procedures applied in arriving at such a verdict and the previous conduct and disciplinary history of the employee. In Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] KECA 394 (KLR), the court held that the previous conduct of the employee became material where there was a charge of breach of trust and confidence. In Elly Ayieko Gwara v Evans Sunrise Medical Centre [2020] KEELRC 962 (KLR), the court held that the previous work record of the employee relating to acts of misconduct, warnings, and breach of the employment contract becomes relevant where the employer is addressing future misconduct. 42.In this case, the claimant does not contest that he received a warning from the respondent dated 13 October 2022 for acts of gross misconduct and a notice dated 6 February 2022 for gross misconduct. 43.The court finds that the respondent has demonstrated that, as at 2 November 2022, when it held the disciplinary hearing following a show cause notice and response and internal investigations, it had genuinely believed that there were reasonable grounds and sufficient grounds to suspect that the claimant had committed gross misconduct in his employment and had done acts which were substantially detrimental to the entity of the respondent. The termination of employment by summary dismissal was thus based on a valid reason and the due process of the law under sections 44 and 41 of the Act, where adhered to.The notice pay and compensation claimed are not available. 44.On the claim for damages due to mental anguish and events leading to admission to hospital due to distress, psychological harm, although the claimant pleaded these matters, in his evidence in court, he did not collate with the respondent. Whereas the respondent has a civic duty to report all criminal and breaches of security at its establishment to the police, any arrests and incarcerations arise from the police. The police investigations are separate and distinct from internal disciplinary procedures, which the employer is allowed to undertake within the protections of the Employment Act, as held in Attorney General & another v Andrew Maina Githinji & another [2016] KECA 817 (KLR) and in Abdalla v Transpares (K) Limited [2026] KEELRC 1046 (KLR). The court held that:Criminal proceedings carry a different threshold of proof, whereas internal disciplinary proceedings over alleged misconduct or gross misconduct should proceed on the premise of sections 35 and 41 or 44 of the Employment Act. This position is affirmed by the court in James Mugeria Igati v Public Service Commission of Kenya [2014] eKLR, which held that there is nothing in the law to suggest that a disciplinary process is in any way tied to a criminal process that may arise from the same facts. …criminal proceedings are distinct from internal disciplinary processes, and pendency of the criminal case was not a reason for the employer to refuse to take the employee(s) through the internal disciplinary procedures addressed under sections 41 and 44 of the Employment Act. 45.Where injury and damage arose out of the arrest of the claimant by the police upon the report by the respondent, the arresting agency is accountable to the claimant. The respondent discharged its civic duty. Internally, the claimant was taken through the disciplinary process, which found him culpable of gross misconduct. The remedy of damages is not available. 46.The claimant has since been paid all his terminal dues, and a Certificate of Service has been issued. 47.The court finds the respondent has complied with the provisions and requirements under section 45(5) of the Act. 48.Employment terminated for valid and justified reasons. Accordingly, the claim is hereby dismissed.On costs, the findings above, the respondent awarded costs. DELIVERED IN OPEN COURT AT NAIROBI, THIS 18TH DAY OF MAY 2026M. MBARŨJUDGEIn the presence of:Court Assistants: Catherine, Kemboi and Omar……………………………………………… and…………………………………..…………..