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ELRCPartially AllowedNot stated in the judgment as provided

Kenya plantation & Agricultural Workers Union v Unilever Tea [Kenya] Limited (Cause E023 of 2023) [2025] KEELRC 2398 (KLR)

Employment and Labour Relations Court
29 August 2025
2,720 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Unilever Tea's dismissal of two workers was ruled unfair because the company couldn't prove attempted theft, earning each worker over Kshs. 175,000.

What this practically means

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Executive summary

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The Claimant Union sued on behalf of two Grievants, Joseph Kirui and Joram Cheruyiot, General Workers employed by the Respondent on 1st July 2011 and summarily dismissed on 31st March 2021 after being found inside a waterborne toilet at Harare village, Koiwa Estate, suspected of attempting to vandalize and steal the Respondent's electricity meter box. They claimed they were repairing the open toilet with nails taken from timber inside it, and that the meter box was too high to reach without a ladder. The Court framed three issues: procedural fairness under Sections 41 and 45 of the Employment Act, validity of reason under Sections 43 and 45, and remedies. On procedure, the Court found the disciplinary process - show-cause letters, hearing, right to accompaniment, appeal - complied with the statute, CBA and human resource policy. On validity, however, the evidence was found sketchy and tenuous: the eyewitness Security Guard did not attend the disciplinary hearing and her statement was not exhibited; the investigator was not called; the alleged collusion with others was never evidenced; and the Grievants' reasonable explanation was not discounted. Termination was therefore unfair for lack of valid reason. Reinstatement was barred by the 3-year limit in Section 12para 1[vii] of the E&LRC Act, and back salaries fell with it. Gratuity was declined as the CBA requires 10 years' service; leave, leave travelling allowance and general damages were unsupported by evidence. The Court awarded each Grievant 2 months' notice (Kshs. 31,862) and 9 months' salary in compensation (Kshs. 143,379), totalling Kshs. 175,241 each, with costs to the Claimant and interest at court rate from the date of judgment.

Questions the Court framed

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

  1. 1.Whether the Grievants' contracts of employment were terminated following a fair procedure under Sections 41 and 45 of the Employment Act
  2. 2.Whether termination was based on valid reason[s] under Sections 43 and 45 of the Employment Act
  3. 3.Whether the remedies sought are merited

Key legal issues

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01

Fairness of procedure

Holding

Procedure was fair and conformed to Sections 41 and 45 of the Employment Act, the CBA and human resource policy.

Reasoning

The Grievants were issued show-cause letters, the charges were communicated, they responded, were invited to a disciplinary hearing, advised of their right to be accompanied, heard, dismissed and allowed an appeal which was heard by a committee presided over by the Divisional Manager and sustained. These steps met the minimum statutory standards of fairness under Sections 41 and 45 and conformed to the applicable CBA and human resource policy.

p. 4
02

Validity of reason for summary dismissal

Holding

Termination was based on an allegation of attempted theft that was not substantiated; there was no valid reason under Sections 43 and 45, so termination was unfair.

Reasoning

The only eyewitness (the Security Guard) did not attend the disciplinary hearing and her statement was not exhibited in Court; the investigator was not called. The alleged collusion with others was not evidenced. The Grievants gave a reasonable account - repairing an open toilet - and the meter box was too high to reach without a ladder. The explanation was never discounted. The evidence was sketchy, tenuous and speculative, never graduating into a genuine and valid reason.

p. 5
03

Remedies

Holding

Reinstatement and back salaries foreclosed; notice of 2 months and compensation of 9 months' salary each granted; gratuity, leave, leave travelling allowance and general damages declined.

Reasoning

Reinstatement was barred by the 3-year limit in Section 12para 1[vii] of the E&LRC Act. Compensation was assessed at 9 months' salary each, more than the Conciliator's 6 months, considering 9 years of service, clean records, no contributory fault, no gratuity entitlement and continued unemployment. Notice was granted under Clause 25[c] of the CBA for employees with over 5 years' service.

p. 6

Legal principles established

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  • An employer relying on an alleged attempted offence must prove it under Section 43 of the Employment Act; producing an investigation report and the eyewitness's statement at a disciplinary hearing, without calling the investigator or eyewitness, does not establish valid reason.
  • A reasonable explanation by an employee for presence at the scene of an alleged offence, not discounted by eyewitness evidence, means the employer has not discharged its burden under Sections 43 and 45.

Court orders

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  1. 1.It is declared that termination was unfair on account of lack of valid reason
  2. 2.The Respondent shall pay to the Grievants through the Claimant: 2 months' notice at Kshs. 31,862 each; and compensation for unfair termination, equivalent of 9 months' salary each, at Kshs. 143,379 - total Kshs. 175,241 each
  3. 3.Costs to the Claimant
  4. 4.Interest allowed at court rate, from the date of Judgment, till payment is made 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
Jurisdiction of the Employment and Labour Relations Court under the Employment Act and the Employment & Labour Relations Court Act (Section 12[1][vii] invoked on reinstatement); matter arising from a reported trade dispute conciliated under the Labour Relations Act

Relief refused

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Reinstatement

Foreclosed by the 3-year limit in Section 12[1][vii] of the Employment & Labour Relations Court Act; termination was over 4 years before judgment

p. 6

Accrued salaries for time out of employment

Unsustainable in the absence of an order for reinstatement

p. 6

Gratuity under the CBA

CBA restricts gratuity to Employees with a minimum of 10 years' service; Grievants had 9 years

p. 6

Leave, leave traveling allowance and general damages for wrongful dismissal

Not supported by evidence; amounts owed not specified; general damages not justified in addition to statutory compensation

p. 6

Costs

Costs to the Claimant

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.

Procedure was fair and in conformity with the minimum statutory standards of fairness under Sections 41 and 45 of the Employment Act.
p. 4Fair procedure under Sections 41 and 45
It was not enough for the Respondent to produce the investigation report and a witness statement at the disciplinary hearing, in light of the Grievants' denial that they were found vandalizing and attempting to steal the Respondent's electricity meter box.
p. 4Burden of proving valid reason under Section 43
All this in the view or the Court, was reasonable explanation, which was not discounted by eye-witness account of the Guard, or any other witness.
p. 5Uncorroborated eyewitness evidence
The allegation appears to have been speculative, never graduating into genuine and valid reason, under Section 43 of the Employment Act.
p. 5Speculation is not a valid reason
The prayer for reinstatement is foreclosed under Section 12 [1] [vii] of the Employment & Labour Relations Court Act, which places a limit of 3 years on grant of the remedy, from the date of termination.
p. 6Time limit on reinstatement
It is declared that termination was unfair on account of lack of valid reason.
p. 6Final orders - declaration
The Respondent shall pay to the Grievants through the Claimant: 2 months' notice at Kshs. 31,862 each; and compensation for unfair termination, equivalent of 9 months' salary each, at Kshs. 143, 379 - total Kshs.175, 241 each.
p. 6Final orders - monetary awards

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 & Agricultural Workers Union v Unilever Tea [Kenya] Limited (Cause E023 of 2023) [2025] KEELRC 2398 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2398/eng@2025-08-29

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