Kenya Union of Commercial, Food and Allied Workers v Kitui Water & Sanitation Company Limited (Civil Appeal 41 of 2020) [2025] KECA 1746 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that even when an employee clearly committed misconduct, a flawed disciplinary process makes the dismissal unfair and compensable.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the grievant was freshly employed by the respondent or transferred from Kikuyu Water & Sanitation Company Limited
- 2.Whether the respondent followed a fair and lawful procedure in terminating the grievant's employment
- 3.Whether there was justification for the termination
- 4.What remedies, if any, the grievant is entitled to upon a finding of unfair termination
Key legal issues
#Whether the grievant was freshly employed or transferred from Kikuyu Water & Sanitation Company Limited
The grievant was freshly employed under the letter of appointment dated 4th December, 2012, which he accepted by signing on 17th December, 2012; that letter ousted any previous employment and bound him under section 97 of the Evidence Act.
The Court found no evidence of any effected transfer from Kikuyu Water & Sanitation Company Limited; there was only correspondence enquiring about a possible transfer with no follow-up. The letter of appointment set out the terms, salary and conditions of the new employment, and the grievant signed accepting them. Under section 97 of the Evidence Act he could not lead evidence to contradict the terms of that letter.
Whether the termination was procedurally fair
The termination was procedurally flawed and therefore unfair: the summonses to disciplinary meetings were not proved to have been delivered, the delivery book and minutes were not produced, customer complainants never confronted or testified against the grievant, and there is no evidence he was heard at the Human Resource Board meeting of 3rd December, 2015 or accompanied by a shop steward or fellow employee.
Although the Court found the grievant had committed misconduct warranting dismissal, the process followed breached sections 41 to 49 of the Employment Act. The respondent failed to prove delivery of the notices and summons, produced no minutes of the meetings the grievant allegedly failed to attend, and did not confront the grievant with the customer allegations. Attendance at the Board meeting did not amount to a hearing since the allegations were not put to him for response.
Whether the grievant was justified in his complaints or the termination substantively justified
The Court found evidence of misconduct including conflict of interest, disobedience of lawful orders, failure to report to transferred stations and failure to attend to the Agape Community Water Project, which the Judge properly considered; but the process breach rendered the termination unfair.
The Court accepted the respondent's evidence of the grievant's malpractices, including opening a shop selling fittings in competition with his employer and installing illegal water connections. However, procedural justice is indispensable: absent procedural justice an employer will most likely be found in violation of the law and the employee entitled to a remedy under sections 41 to 49 of the Employment Act.
What remedies flow from a finding of unfair termination
Reinstatement refused due to lapse of over 3 years; the grievant was awarded 3 months' salary compensation for unfair termination, 3 months' salary in lieu of notice, salary up to termination and any untaken leave, with the quantum of unpaid salary and leave to be determined by the Deputy Registrar of the ELRC.
Having set aside the ELRC judgment and substituted a finding of wrongful termination, the Court assessed compensation. Reinstatement was impracticable given the passage of time. Notice pay was anchored in clause 11 of the letter of appointment. Because the amounts of unpaid salary and untaken leave were not established on the evidence, the Court remitted those limited questions to the Deputy Registrar to hear the parties.
Legal principles established
#- In a first appeal, the Court of Appeal has a duty to re-appraise the evidence and reach its own conclusions of fact.
- An employer must properly serve the employee with the complaints against him, ask him to show cause, conduct a hearing in a language he understands and inform him of his right to be accompanied by another employee or a representative; failure of which renders the termination unfair.
- Where an employee is alleged to have failed to attend disciplinary meetings, the employer bears the duty to prove that the summonses were delivered; an alleged delivery book not produced means the employer has not discharged that burden.
- Customer complainants against an employee must be confronted with the employee or called to testify; where none of the complainants testified before the board or the court, there is an unanswered process issue.
Court orders
#- 1.The judgment of the ELRC is set aside and substituted with a finding that the grievant's employment was wrongfully terminated
- 2.The grievant is entitled to salary compensation for 3 months for unfair termination
- 3.The grievant is entitled to 3 months' salary in lieu of notice as per clause 11 of the letter of appointment dated 4th December, 2012
- 4.The grievant is entitled to salary up to the date of termination and any leave not taken up to the date of termination
- 5.The appellant is awarded ½ costs of the appeal and costs at ELRC
- 6.The matter at ELRC to be listed before the Deputy Registrar of that court who shall hear the parties on any unpaid salary up to termination and leave, if any, due and not taken
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- Not stated in the judgment
- Jurisdiction invoked
- First appeal from the Employment and Labour Relations Court pursuant to the Court of Appeal Rules (rule 31) as invoked by the Court
Relief refused
#Reinstatement of the grievant
Passage of time - over 3 years had elapsed since termination
Ground of appeal alleging that the grievant was transferred from Kikuyu Water & Sanitation Company Limited rather than freshly employed
The letter of appointment dated 4th December, 2012 settled the issue; the grievant was bound by its terms under section 97 of the Evidence Act
Costs
The appellant is entitled to ½ costs of the appeal which has partially succeeded and costs at ELRC.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We set aside the judgment of ELRC and substitute thereof a finding that the grievant’s employment was wrongfully terminated.
The appellant is entitled to ½ costs of the appeal which has partially succeeded and costs at ELRC. The matter at ELRC to be listed before the Deputy Registrar of that court who shall hear the parties on any unpaid salary up to termination and leave, if any, due and not taken.
This is a first appeal from the Employment and Labour Relations Court in first instance and it is our duty and mandate to re-appraise the evidence and reach our own conclusions of facts.
There is no evidence that the grievant was heard at the respondent’s Human Resource Board meeting held on 3rd December, 2015.
So there is clearly a breach of process, a situation that the Employment Act does not allow. The grievant’s employment was therefore unfairly terminated on those technical grounds.
Issues in the judgment
#The judgment refers to the grievant's former employer inconsistently as both Kikuyu Water Company Limited and Kikuyu Water & Sanitation Company Limited, and contains an internal date inconsistency in the reply to the Memorandum of Claim (a letter of 25th November, 2025 concerning a 3rd December, 2015 meeting).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial, Food and Allied Workers v Kitui Water & Sanitation Company Limited (Civil Appeal 41 of 2020) [2025] KECA 1746 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1746/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.