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ELRCPartially AllowedEmployment and Labour Relations Cause (Kericho) – judgment references related Cause E016 of 2024; number of this Cause not stated in the judgment

Kenya Plantation and Agricultural Workers Union v Ekatera Tea Kenya PLC (Cause E017 of 2024) [2025] KEELRC 1861 (KLR)

Employment and Labour Relations Court of Kenya
27 June 2025
2,322 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court converted a guard's summary dismissal to regular termination, awarding notice and gratuity because the employer couldn't prove the reason for dismissal.

What this practically means

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Executive summary

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The Claimant union brought this claim on behalf of its member, Justice Kiprono Rotich (the Grievant), a general worker later assigned security guard duties, summarily dismissed on 5th March 2023 after five brush cutters were stolen from the Respondent's store on the night of 29th January 2023. The Respondent alleged the Grievant failed to guard the property and had prior information of the theft which he did not share. The Court framed three issues: procedural fairness under Sections 41 and 45 of the Employment Act; valid reason under Sections 43, 44 and 45; and the remedies sought. On procedure, the Court found the show-cause letter, hearing attended with a shop steward, signed minutes and advice on the right of appeal satisfied the statutory minimum. On substance, however, the Respondent failed to establish valid reason: the occurrence book and duty register were not exhibited, and the guards (Isaya and John) with relevant knowledge were not called, so it was not established that the Grievant was assigned to the store or had foreknowledge of the theft. Applying Section 45(4)(b) and the fair-go-all-round principle, the Court held that summary dismissal with total loss of benefits after 29 years' service and a clean record was unjust and inequitable. The dismissal was commuted to regular termination, with awards of two months' notice (Kshs. 51,158) and gratuity for 29 years (Kshs. 627,669), total Kshs. 678,827, with interest at court rates. All other prayers were declined. The dispute had earlier been conciliated at the Ministry of Labour, which recommended six months' salary compensation.

Questions the Court framed

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

  1. 1.Whether termination was based on fair procedure pursuant to Sections 41 and 45 of the Employment Act
  2. 2.Whether termination was based on valid reason[s] under Sections 43, 44 and 45 of the Employment Act
  3. 3.Whether the multiple remedies sought by the Claimant are merited

Key legal issues

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01

Procedural fairness under Sections 41 and 45 of the Employment Act

Holding

Procedure followed – show cause letter, reply, hearing with shop steward, signed minutes, right of appeal – met the minimum standards of procedural fairness

Reasoning

The Grievant was issued a letter to show cause, replied, was invited to a disciplinary hearing, attended accompanied by a workmate and shop steward, was heard, signed the minutes, and was advised of his right of appeal which he did not exercise. The conciliator had faulted the employer for not calling witnesses, but the Court nonetheless held the process conformed to the statutory minimum under Sections 41 and 45.

p. 4
02

Valid reason under Sections 43, 44 and 45

Holding

The Respondent failed to establish valid reason through evidence

Reasoning

The occurrence book and duty register were not exhibited, and the other guards (Isaya and John) with relevant information were not called. It was not established that the Grievant was assigned to guard the store where the theft occurred, nor that he had prior knowledge of the theft. Statements of colleagues who were not called could not carry the employer's burden of proof.

p. 5
03

Justice and equity under Section 45(4)(b)

Holding

Summary dismissal with loss of all benefits after 29 years' service with a clean record was unjust and inequitable; the decision was commuted to regular termination

Reasoning

Although procedure was fair, the sanction was extremely harsh given the Grievant's decades of service and clean record. The employer paid only 15 days' salary at the end of 29 years. Applying the fair-go-all-round principle and Section 18(4), the Court commuted the dismissal to regular termination and awarded notice and gratuity under the CBA.

p. 5

Legal principles established

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  • Beyond fair procedure and valid reason, the court must examine whether the employer acted in accordance with justice and equity under Section 45(4)(b) of the Employment Act
  • The principle of a fair go all round demands fairness and balance in punishment of employees dismissed for just cause
  • It is for the employer to establish valid reason through evidence
  • An employee summarily dismissed for just cause must on dismissal be paid all monies, allowances and benefits due up to the date of dismissal

Court orders

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  1. 1.The decision summarily dismissing the Grievant is commuted to regular termination
  2. 2.Respondent to pay notice of 2 months under clause 25 [c] of the CBA at Kshs. 51,158 and gratuity under clause 32 [a] of the CBA at 22 days' salary for 29 complete years of service at Kshs. 627,669 – total Kshs. 678,827
  3. 3.The sum to attract interest at court rate from the date of Judgment until payment in full
  4. 4.Other prayers are declined

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 and Labour Relations Act over unfair termination dispute referred by the Claimant union on behalf of its member

Relief refused

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All other prayers beyond notice and gratuity (pay for period of dismissal, leave, house allowance, 12 months' salary, damages for unfair dismissal, etc.)

The Court found procedural fairness was met and only granted notice and gratuity, finding summary dismissal with total loss of benefits harsh but limiting remedies to contractual entitlements on commutation

p. 6

Costs

No costs order made in the final orders

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.

It is Ordered: a. The decision by the Respondent against the Grievant, summarily dismissing him, is commuted to regular termination.
p. 6disposition – commutation of summary dismissal
He shall be paid by the Respondent: notice of 2 months under clause 25 [c] of the CBA, at Kshs. 51,158; and gratuity under clause 32 [a] of the CBA, at the rate of 22 days’ salary for 29 complete years of service, at Kshs. 627,669 – total Kshs. 678,827.
p. 6final orders – quantum payable
However, it was for the Respondent to establish valid reason, which the Court does not think, the Respondent did, through evidence, in this dispute.
p. 5employer's burden of proof on valid reason
The principle of a fair go all round, demands that there is fairness and balance, in punishment of Employees who are dismissed for what their Employers perceive to be just cause.
p. 5fair go all round principle
The Respondent did not treat the Grievant justly and equitably, after he had served for 29 years.
p. 5justice and equity under Section 45(4)(b)

Issues in the judgment

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minor

Pleading inconsistent on length of service

minor

Case number of this Cause not stated in the judgment

minor

No costs order made despite costs being among the prayers

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, "Kenya Plantation and Agricultural Workers Union v Ekatera Tea Kenya PLC (Cause E017 of 2024) [2025] KEELRC 1861 (KLR)", Case Analysis (2025). Employment and Labour Relations Cause (Kericho) – judgment references related Cause E016 of 2024; number of this Cause not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1861/eng@2025-06-27

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