Mbwika v Tawazon Chemical Company EA Ltd (Cause E1157 of 2018) [2025] KEELRC 2864 (KLR)
The bottom line
#A Kenyan court upheld an employee's summary dismissal for suspected theft because the employer's CCTV and stock reconciliation evidence outweighed the employee's account.
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 termination of employment of the claimant by the Respondent was wrongful, unfair and unlawful
- 2.Whether the claimant is entitled to the relief sought
- 3.Who bears the costs of this claim
Key legal issues
#Whether the summary dismissal for alleged theft was substantively fair
The court accepted the Respondent's account that the claimant was dismissed for theft by servant, on a balance of probabilities favouring the Respondent
The Respondent explained its loading and reconciliation procedures, relied on CCTV footage said to show the claimant loading an extra bag without authority, and pointed to the unresolved whereabouts of a missing bag of pigment green. Weighing the evidence, the court found the Respondent's case more convincing on a balance of probabilities, despite the claimant's contention that he was never charged in court and that the footage was inconclusive.
Whether the dismissal complied with section 41 of the Employment Act (procedural fairness)
The Respondent asserted compliance with section 41 through its enquiry into the incident; the court did not make an express adverse finding against the Respondent on procedure
The claimant submitted that he was not notified of the allegations in the presence of an employee of his choice and was not accorded a disciplinary hearing, relying on David Gichana Omuya. The Respondent relied on Postal Corporation of Kenya v Andrew K. Tanui and on section 44(4) covering suspected criminal offences against the employer's property. The court resolved the dispute on the overall balance of evidence rather than on an express procedural finding.
Legal principles established
#- Section 43 of the Employment Act places a statutory obligation on the employer to prove the reasons for termination; section 45 requires that the reasons be valid and fair
Court orders
#- 1.Claim dismissed
- 2.Each party to bear its own costs of the claim
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and labour relations dispute under the Employment Act, 2007
Relief refused
#Declaration that the dismissal was unlawful and unfair
The court found the Respondent's case more convincing and inclined to dismiss the claim
Terminal dues of Kshs. 565,594.08, certificate of service, costs and interest
The claim was dismissed in its entirety
Costs
Each party bears its own costs of the claim
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.
I am therefore inclined to dismiss the claim with orders that each party bears its costs of the same.
Overall, the Respondent’s case overwhelmed that of the Claimant both on a balance of probabilities and preponderance of evidence.
Section 45 of the Act on the other hand requires the employer to prove that the reason(s) for terminating are valid and fair reasons.
Issues in the judgment
#Internal inconsistency in the date of the termination: the Respondent pleads dismissal by a letter dated 9th March 2018 while the claimant testifies he was served with a termination letter on 13th March 2018; the judgment does not resolve the discrepancy
The judgment recites that parties agreed on written submissions on 6th February 2024, yet delivery date is 22nd October 2025; the judgment also does not state the case number or parties' names, recording the dispute only as claimant/respondent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbwika v Tawazon Chemical Company EA Ltd (Cause E1157 of 2018) [2025] KEELRC 2864 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2864/eng@2025-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.