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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedNot stated in the judgment (appeal from Kericho ELRC Cause No. 322 of 2014)· [2025] KECA 830 (KLR)

Unilever Tea Kenya Limited v Kenya Plantation & Agricultural Workers Union

Court of Appeal
9 May 2025
Mohamed Abdulahi WarsameM. WarsameFMFJ. MativoMGM. Gachoka
1,959 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal upheld Unilever Tea's summary dismissal of an employee for sexual harassment and falsified overtime, confirming due process protects employers.

What this practically means

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Executive summary

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The respondent union, on behalf of grievant Simon Sang, sued Unilever Tea Kenya Limited at the Employment and Labour Relations Court at Kericho, seeking reinstatement or alternatively 12 months' salary. The grievant had been summarily dismissed for gross misconduct, including allegations of sexual harassment and falsification of overtime, pursuant to section 44(4)(c) and (e) of the Employment Act and clause 24 of the CBA. The ELRC found the termination wrongful, unfair and unlawful - partly because the employer's key witness was treated as hearsay and an outdated sexual harassment policy had been relied on - and awarded both reinstatement and 12 months' salary as compensation. The employer appealed to the Court of Appeal at Nakuru; the respondent did not participate despite service. The Court framed two issues: whether the summary dismissal was lawful, and whether awarding both reinstatement and compensation was correct. Re-evaluating the evidence as a first appellate court, the Court held the trial judge erred in dismissing the assistant factory manager's testimony as hearsay, ignored corroborative testimony and admissions, and took a lenient view of the evidence. It held that due process was followed, that victims of sexual harassment need not testify in person, and that the dismissal was justified. The remedies, being grounded on the erroneous finding of wrongful termination, fell away. The Court allowed the appeal, set aside the ELRC judgment in its entirety, and awarded the appellant costs of both the appeal and the court below.

Key legal issues

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01

Whether the summary dismissal of the grievant was lawful

Holding

The dismissal was justified; the grievant was afforded due process (show cause letter, written response, disciplinary hearings, internal appeal) and the evidence, including corroboration of sexual harassment and admissions on falsified overtime, justified summary dismissal.

Reasoning

The Court found the trial judge erred in dismissing the evidence of DW-1 as hearsay, since she authored the show cause letter and participated in the disciplinary meetings. The grievant confirmed receipt of and response to the show cause letter, attended hearings, and union officials were present. Corroborated testimony of sexual harassment existed, and sexual harassment remains an offence under section 6 of the Employment Act regardless of whether a current policy was in place. Admissions need not be on the pleadings.

p. 4
02

Whether the learned judge was correct in awarding both reinstatement and compensation

Holding

The Court declined to determine the merits of the remedies because, having found the dismissal lawful, the remedies fell away with the erroneous finding of wrongful termination.

Reasoning

The Court held that reinstatement and compensation were grounded entirely on the finding of wrongful termination. Once that finding was set aside, there was no surviving basis for either remedy, so the Court did not need to reach the question of whether the two alternative remedies could properly be awarded together.

p. 4
03

Duty of first appellate courts to evaluate all evidence

Holding

Trial courts must evaluate all evidence, including corroborative testimony and relevant admissions; failure to do so renders the resulting finding erroneous.

Reasoning

Relying on Barclays Bank of Kenya Ltd v Evans Ondusa Onzere and Wagude v R, the Court underscored the duty of trial courts to evaluate all evidence. It found the trial judge dismissed a directly involved witness's testimony as hearsay and ignored corroborative testimony and the grievant's admissions, taking a light and lenient view of the evidence.

p. 4

Legal principles established

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  • Summary dismissal for gross misconduct is available to an employer under section 44(4)(c) and (e) of the Employment Act and the CBA, provided due process is followed, including giving the employee a chance to respond to allegations.
  • There is no legal requirement that victims of sexual harassment testify in person; what matters is the sufficiency and credibility of the evidence supporting the allegation.
  • An appellate court on a first appeal must re-evaluate the evidence and make its own findings, interfering with trial court findings only where they are unsupported by evidence or outrightly erroneous.
  • Trial courts have a duty to evaluate all evidence, including corroborative testimony and admissions, before reaching conclusions.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The judgment delivered in Kericho ELRC Cause No.322 of 2014 on 17th May 2016 is set aside in its entirety
  3. 3.The appellant to have costs of both this appeal and the Employment and Labour Relations Court
On appeal from
Employment and Labour Relations Court at Kericho
Cause No. 322 of 2014
Jurisdiction invoked
First appellate jurisdiction over the Employment and Labour Relations Court, exercising re-evaluation of evidence under Rule 31 of the Court of Appeal Rules 2022

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Unilever Tea Kenya Limited v Kenya Plantation & Agricultural Workers Union", Case Analysis (2025). Not stated in the judgment (appeal from Kericho ELRC Cause No. 322 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/830/eng@2025-05-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.