Kenya Union of Commercial, Food & Allied Workers v Kenya Breweries Limited (Cause E021 of 2023) [2025] KEELRC 3030 (KLR)
The bottom line
#A Kenyan court awarded an employee over Kshs. 8.3 million after finding his dismissal was unfair and discriminatory.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent had valid reasons for terminating the Grievant's employment over the loss of 6,635 KRA tax stamps
No valid reason was established; the court found the Respondent was not a reasonable employer in concluding the Grievant stole the stamps
Eleven people could access the safe room, all team leaders had the safe key, the handover-at-safe procedure relied on by the Respondent only took effect on 18th December 2020 (after the incident), the EGMS screenshot only covered dates up to 3rd December, and the first police investigator implicated only Ndichu. These gaps created doubts that the Grievant was responsible, so the employer lacked a genuinely held valid reason on a balance of probabilities.
Whether the termination was procedurally fair and lawful
The Respondent substantially complied with section 41 procedural fairness, but the process was tainted by discrimination against the Grievant, rendering the termination unfair
The Grievant was issued a show-cause letter, responded, was heard with representation, and appealed. The extension of suspension was justified by the police involvement. However, his colleague Ndichu, accused of the same offence, was recalled from suspension and continued working while the Grievant remained dismissed, an unjustified differential treatment amounting to discrimination that tainted the process.
Whether the pending criminal charge against the Grievant supported the reason for termination
The criminal case carried little weight because the Grievant was charged after the termination and the criminal process is distinct from the disciplinary process
The Grievant was charged on 23rd June 2021, months after the termination on 22nd February 2021, and the criminal case remained undetermined. The court noted the first police investigator had recommended charging only Ndichu, and only later implicated the Grievant in a supplementary statement, which undermined reliance on the criminal process to justify the dismissal.
What remedies the Grievant was entitled to
Reinstatement was unavailable after three years; the Grievant received one month's notice pay, maximum 12 months' compensation for unfair termination, and Kshs. 1,000,000 for discrimination
Section 12 of the ELRC Act bars reinstatement beyond three years of dismissal. Payment for the remainder of the contract is not a section 49 remedy. Given the Grievant's 15 years and 5 months of service, clean disciplinary record, compliance with then-existing procedures, and the discrimination suffered, maximum compensation of 12 months' gross salary was awarded, plus separate discrimination damages.
Legal principles established
#- A termination of employment is unfair where the employer fails to prove a valid and fair reason and that fair procedure under section 41 was followed; both substantive and procedural fairness must be satisfied
- The burden of proving that unfair termination occurred rests on the employee, while the burden of justifying the grounds for termination rests on the employer (section 47(5), Employment Act)
- Treating similarly accused employees differently without justification amounts to discrimination under section 5 of the Employment Act and Article 27 of the Constitution, which taints the disciplinary process
- Once a court finds a termination wrongful or unfair, its remaining task is to determine the appropriate remedy under section 49 of the Employment Act
Court orders
#- 1.Declaration that the termination of the Grievant's employment was unfair
- 2.Notice pay of 1 month's salary of Kshs. 568,670.89 under section 36 of the Employment Act
- 3.Compensation for unfair termination equivalent of 12 months' gross salary, Kshs. 6,824,050.68
- 4.Damages for discrimination of Kshs. 1,000,000
- 5.Total sum of Kshs. 8,392,721.57 plus costs of the suit with interest from the date of judgment
- 6.Stay of 30 days granted
- Jurisdiction invoked
- Jurisdiction of the Employment and Labour Relations Court under the Employment and Labour Relations Court Act (including section 12 on reinstatement within three years of dismissal) and the Employment Act, 2007 following a Certificate of Unresolved Trade Dispute
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial, Food & Allied Workers v Kenya Breweries Limited (Cause E021 of 2023) [2025] KEELRC 3030 (KLR)", Case Analysis (2025). Not stated in the judgment (Employment and Labour Relations Court cause, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3030/eng@2025-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.