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ELRCPartially AllowedMemorandum of Claim dated 9th November 2023 (number not stated in judgment)

Nyoike v Del Monte (K) Ltd (Cause E920 of 2023) [2025] KEELRC 747 (KLR)

Employment and Labour Relations Court
13 March 2025
2,949 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a supervisor was unfairly dismissed because the employer couldn't prove its reasons, winning notice pay, leave pay and five months' salary.

What this practically means

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Executive summary

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The Claimant, a supervisor employed by the Respondent since December 2008, was dismissed on 17th July 2023 following a road accident of 11th June 2023 involving a company motor vehicle he had assigned to a driver. He claimed unfair termination, notice pay, salary arrears, leave allowance and compensation. The Respondent justified the dismissal on grounds of negligence, alleging he allowed an unqualified driver to operate the vehicle carelessly, overloading and over-speeding. The court framed two issues: whether the dismissal was unfair, and entitlement to reliefs. On procedure, the court found Section 41 of the Employment Act satisfied: a show cause letter was issued and answered, and an oral hearing granted; the Claimant's failure to bring a witness was his own doing. On substance, however, the burden lay on the Respondent to justify the dismissal. The cause of the accident was never investigated, no report was made to police, and the dismissal letter relied on an investigation report that did not exist. The show cause and dismissal letters never alleged assignment of an unlicensed driver, and the alleged non-assignment policy was not produced in evidence. The dismissal was therefore substantively unjustified. Terminal dues were not denied. The court declared the dismissal wrongful and unfair and awarded one month's notice pay, 17 days' July salary, five months' salary as compensation (reduced because the Claimant, as supervisor, witnessed overloading and over-speeding without intervening), pay in lieu of leave, and a certificate of service. Claims for general damages for discrimination and service pay failed. The Respondent was ordered to pay costs with interest.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Claimant was unfairly dismissed; and if yes,
  2. 2.Whether he is entitled to the reliefs sought

Key legal issues

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01

Whether the dismissal was procedurally fair under Section 41 of the Employment Act

Holding

Procedurally fair - show cause letter issued, response considered, oral hearing granted and attendance with a witness advised

Reasoning

The Claimant was issued a show cause letter which he answered, and was invited to a physical disciplinary hearing. Although he complained of lack of representation, he admitted he was advised to attend with a witness but failed to do so. Relying on Philip Kimosop v Kingdom Bank Limited and Anthony Mkala Chitavi, the court found the ingredients of Section 41 procedural fairness satisfied.

p. 4
02

Whether the Respondent proved valid and fair reasons for the dismissal under Sections 43 and 45

Holding

No - the cause of the accident was never investigated and the alleged policy breach was not proved

Reasoning

The burden shifted to the Respondent to justify the termination. The dismissal letter referenced an investigation report, yet RW1 confirmed no investigation report was filed and none was conducted; the accident was never reported to police. The show cause letter and dismissal letter did not allege assignment of an unlicensed driver. The alleged non-assignment policy was not produced. The Respondent therefore failed to establish the reasons it genuinely held.

p. 6
03

Entitlement to reliefs

Holding

Notice pay, July salary, leave pay, certificate of service and reduced compensation of 5 months' salary awarded; discrimination and service pay claims failed

Reasoning

Terminal dues were not denied and were awarded. On compensation, the court found that although the Claimant was a passenger, as a senior supervisor he witnessed overloading and over-speeding without intervention, contributing to his own fate, warranting a reduced award of 5 months' salary under Section 49. Discrimination was unproved and service pay was excluded by NSSF/Provident Fund deductions.

p. 6

Legal principles established

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  • Fair termination requires both procedural fairness and valid, substantively justified reasons established by the employer
  • Where an employer alleges an employee breached a workplace policy, the policy must be produced in evidence to be verified

Court orders

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  1. 1.A declaration that the Claimant was wrongfully and unfairly dismissed
  2. 2.One month salary in lieu of notice at Kshs. 89,281/-
  3. 3.Salary for 17 days worked in July 2023 at Kshs. 50,600/-
  4. 4.5 months' salary as compensation for wrongful and unfair dismissal at Kshs. 446,405/-
  5. 5.Pay in lieu of leave not taken at Kshs. 62,496/-
  6. 6.The Respondent to issue the Claimant with a certificate of service within 14 days of the judgment
  7. 7.The Respondent to bear the costs of the suit with interest at court rate from the date of judgment until payment in full

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)

Relief refused

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General damages for discrimination

The Claimant did not prove a case of discrimination

p. 6

Service pay

The Respondent made NSSF and Provident Fund deductions, disqualifying service pay

p. 6

Costs

The Respondent shall bear the costs of the suit and interest at court rate from the date of this judgment until payment in full.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the end, I reach the conclusion that the Respondent has not proved fair and justified grounds to dismiss the Claimant. The Claimant’s dismissal is found unfair on this account.
p. 6Substantive justification - burden on employer
It is telling that even when the accident resulted in injuries to a number of the Respondent’s employees, no report of the accident was made to the police and no investigation on the cause of the accident was conducted, yet the dismissal letter refers to an investigation report
p. 6Absence of investigation undermining reason for dismissal
what the Respondent refers to as the policy of non-assignment that the Claimant is said to have breached, was not produced in evidence, and hence its existence and content cannot be verified.
p. 6Undocumented workplace policy
A declaration that the Claimant was wrongfully and unfairly dismissed.
p. 6Final orders - declaration
The Respondent shall bear the costs of the suit and interest at court rate from the date of this judgment until payment in full.
p. 7Final orders - costs and interest

Issues in the judgment

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minor

The dismissal letter as quoted refers to a disciplinary hearing on 12th July 2023, while the pleadings and evidence state the hearing was conducted on 17th July 2023

minor

The Respondent's dismissal letter relied on an investigation report although RW1 confirmed no investigation report was filed or conducted

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nyoike v Del Monte (K) Ltd (Cause E920 of 2023) [2025] KEELRC 747 (KLR)", Case Analysis (2025). Memorandum of Claim dated 9th November 2023 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/747/eng@2025-03-13

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