Joseph Macharia Nguru v Sojanmi Springfield Ltd

republicofkenyainthechiefmagistrate’scourtatnakurumcelrccausenoe122of2024betweenjosephmacharianguruclaim antandsojanmispringfiedltdrespondentjudgment the claimant and his supervisor, which led to a commotion on 04/12/2023, during which it was alleged that the claimant violently assaulted the farm manager who was then his supervisor. RW1, Stewart Magoyi, a storekeeper was also assaulted in the process of him intervening. 2. Vide a Statement of Claim dated 26/06/2024, the claimant has lodged a claim for unfair termination. He denies having assaulted the two senior officers and maintained that it is the farm manager who abused and insulted him in a degrading manner. That he did not retaliate, and that while he was walking away, the farm manager assaulted him. He avers that his termination was therefore not justified. He further avers that he used to work on average of 48 hours per week instead of the contractual working hours of 46 hours per week. That he was not paid any overtime for the extra hours worked. That he further has pending leave pay for leave earned but not taken. 3. Accordingly, the claimant prays a declaration that his termination of employment was unfair and judgment for a sum of Kshs 449,017 made up as follows: i) Kshs 15,652 being notice pay; ii) Kshs 11,370 being leave earned but not taken; Page 2 of 13

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republicofkenyainthechiefmagistrate’scourtatnakurumcelrccausenoe122of2024betweenjosephmacharianguruclaim antandsojanmispringfiedltdrespondentjudgment iii) Kshs 20,400 being unpaid travelling allowance; iv) Kshs. 15,344 being underpayment of wages pay v) Kshs. 98,427 being unpaid overtime hours vi) Kshs. 187,824 being compensation for unfair termination vii) Certificate of service viii) Interest and costs. 4. In its defence, the Respondent does not dispute the employment relationship, but states categorically that the Claimant’s summary dismissal followed acts of gross misconduct, specifically the physical assault of the farm manager. The respondent therefore maintains that the termination was lawful, substantially justified, and procedurally fair, noting that the claimant is a repeat offender, having previously been involved in a theft incident. 5. Mr. Mwallo, learned counsel for the claimant submitted that the termination was procedurally unfair given that the respondent failed to comply with the provisions of Section 41 of the Employment Act. That the claimant was not present during the disciplinary hearing and was therefore denied the opportunity to challenge or cross-examine the allegations made against him. Page 3 of 13

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republicofkenyainthechiefmagistrate’scourtatnakurumcelrccausenoe122of2024betweenjosephmacharianguruclaim antandsojanmispringfiedltdrespondentjudgment 6. Ms. Obiero, learned counsel for the respondent submitted that the respondent has demonstrably established that the termination of the claimant’s employment was grounded on valid and fair reasons, namely the claimant’s involvement in acts of gross misconduct in the form of assault against a fellow employee. That this conduct fundamentally breached the trust and discipline expected in an employment relationship and justified summary dismissal within the meaning of Sections 43, 44 and 45 of the Employment Act, 2007. That further, the respondent strictly adhered to the procedural requirements set out under Section 41 of the Employment Act. That the Claimant was issued with a Notice to Show Cause, accorded an opportunity to respond, invited to and attended a disciplinary hearing in the company of a fellow employee, and his representations were duly considered before the decision to terminate his employment was made. That the principles of natural justice were therefore fully observed. That the clamant has not proved entitlement to any of the reliefs sought. That the claims for notice pay, unpaid leave, overtime, travelling allowance and underpayment are unsupported by evidence and are further negated by the claimant’s own admission that he received and acknowledged his final dues in full. Learned counsel cited the case of Kenya Power & lighting Page 4 of 13

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republicofkenyainthechiefmagistrate’scourtatnakurumcelrccausenoe122of2024betweenjosephmacharianguruclaim antandsojanmispringfiedltdrespondentjudgment Company Ltd v Wasike [2017] KECA 446 (KLR) where the Court of Appeal held: We think that in all respects the learned judge got it all wrong, where, as here, an employer has reasonable cause to take disciplinary action against an employee and does so with scrupulous adherence to due process and fair, equitable treatment of the employee… it cannot be right that orders such as issued in the instant case be given…justice is a two – way highway. 7. I have carefully considered the evidence on record, the pleadings, the written submissions by both parties, and the authorities cited. There are only three issues for determination in this case, namely, whether the dismissal of the claimant was justified, whether the respondent afforded the claimant a fair hearing and whether the prayers or reliefs sought by the claimant are awardable. 8. It is common ground that the respondent dismissed the claimant on the grounds that he had caused commotion when he tried to fight the farm manager and, in the process, assaulted the store keeper. The claimant denies these allegations and the onus was on the respondent to satisfy this court, on a balance of probabilities, that indeed the claimant misconducted himself as alleged. The respondent called one of the victims who confirmed the assault Page 5 of 13

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republicofkenyainthechiefmagistrate’scourtatnakurumcelrccausenoe122of2024betweenjosephmacharianguruclaim antandsojanmispringfiedltdrespondentjudgment attacks on both him and the farm manager. I thus find that the respondent, through the evidence of its two witnesses and the medical evidence adduced, has ben able to prove to the required standards that the reason for termination was valid. 9. Under section 43(2) of the Employment Act, the respondent was obliged to prove the reason or reasons for the termination, namely the matters that the respondent genuinely believed to exist and which led the respondent to terminate the claimant’s employment. Failure to prove those reasons automatically meant that the termination was unfair. (See John Charo Ngumbao v. Tiwi Amani Beach Resort [2017] eKLR). Having believed the evidence tendered by the respondent’s two witnesses herein, one of them being a victim of the assault attack by the claimant herein, I do find that the respondent had a valid reason to terminate the claimant’s employment on account of gross misconduct. 10.As regards fair hearing, the evidence on record shows that on 13/12/2023 the respondent wrote to the claimant and issued him with a show cause letter. Further, on 15/12/2023, the respondent having been dissatisfied with the explanation given in response to the Shaw cause letter, invited the claimant for Page 6 of 13

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republicofkenyainthechiefmagistrate’scourtatnakurumcelrccausenoe122of2024betweenjosephmacharianguruclaim antandsojanmispringfiedltdrespondentjudgment a disciplinary hearing. The evidence of the minutes shows that a disciplinary hearing was held on 04/01/2024. The issue at hand is however whether this disciplinary process was fair. 11.Section 41(1) of the Employment Act provides as follows: Notification and hearing before termination on grounds of misconduct. (1) Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation. (2) Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), make. 12.What the above provisions mean is that at any point prior to termination of an employee’s employment, a disciplinary hearing must be conducted. As held by the Court of Appeal in Judicial Service Commission v Gladys Boss Shollei 7 Another [2014] e KLR, the hearing should not necessarily take the form of Page 7 of 13

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republicofkenyainthechiefmagistrate’scourtatnakurumcelrccausenoe122of2024betweenjosephmacharianguruclaim antandsojanmispringfiedltdrespondentjudgment what would ordinarily take place in a court of law but, at the very least, the presiding disciplinary committee should observe the rules of natural justice. 13.In the case of Agricultural Finance Corporation v Jillo (Civil Appeal E002 of 2023) [2025] KECA 2068 (KLR) (5 December 2025) that was impressively cited by the; earned counsel for the claimant, the Court of Appeal held as follows with regards to the essential elements of a fair disciplinary hearing: …A proper hearing cannot be said to have been held unless: (i) the employee has been clearly informed of the charges levelled against him; (ii) the witnesses are examined, ordinarily in the presence of the employee-in respect of the charges; (iii) the employee is given a fair opportunity to cross-examine witnesses; (iv) the employee is given a fair opportunity to tender his defence if he so wishes on any relevant matter; and (v) the enquiry officer records his findings giving reasons for the same in his report. 35. For emphasis, it cannot be gainsaid that it is expected that the Disciplinary Committee should record the proceedings before it for evidential purposes. The rationale is simple; the disciplinary procedure is prone to exposure to litigation. The need for written minutes as evidence Page 8 of 13

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republicofkenyainthechiefmagistrate’scourtatnakurumcelrccausenoe122of2024betweenjosephmacharianguruclaim antandsojanmispringfiedltdrespondentjudgment in such instances has been underscored by this Court. In the case of Kenya Union of Commercial Food and Allied Workers vs. Kisii Bottlers Ltd (2020) KECA 209 (KLR), while agreeing with the findings of Marete J. that the respondent’s termination of employment was lawful for failure to seek leave of absence, the Court faulted the appellant for failing to produce evidence that it adhered to the mandatory prescribed procedure under section 41(1) of the Act. It held that: “There was no evidence by the respondent that apart from the dismissal letter the grievant was given any explanation for the disciplinary action in the presence of another employee or a shop floor union representative, which is a mandatory requirement. Where that is not done, the termination of employment is deemed unfair; see section 45(2) of the Employment Act. 14.In the same vein, the Court of Appeal in Mini Bakeries (MSA) Limited vs. Ali Omar Faraj (2019) KECA 479 (KLR) had this to say on the importance of the minutes of a meeting in a disciplinary hearing: It is not that we prescribe that minutes for disciplinary hearing should take a certain format but that it ought to be clear from the minutes that a disciplinary hearing was conducted; that the allegations were tabled before the disciplinary committee and the employee was given an opportunity to respond to the same. 15.Wasilwa, J. in Emojong vs. Henkel Chemicals (EA) (2025) KEELRC 259 (KLR) rendered herself thus: Page 9 of 13

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republicofkenyainthechiefmagistrate’scourtatnakurumcelrccausenoe122of2024betweenjosephmacharianguruclaim antandsojanmispringfiedltdrespondentjudgment There is no indication that the process set out above was followed and without any minutes of what transpired and with the claimant expressing reservation of the entire process, I find the respondent did not establish the existence of valid reason for claimant’s dismissal nor is there evidence that the claimant was subjected to a fair disciplinary process. 16.It is trite that the burden of proof that the termination was lawful rests with the employer in terms of section 43(1) of the Act which reads as follows: In any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45. 17.Consequently, failure to show by way of the minutes or other report that the respondent was accorded a fair hearing in the disciplinary proceedings ultimately rendered his termination unfair. In the circumstances, I find the minutes of the disciplinary meeting that were produced herein to depict a sham process that did not adhere to the principles of natural justice. The minutes do not disclose the chair or the presiding officer or person of the hearing. There is no indication from the minutes that witnesses were called and whether the claimant was accorded an opportunity to cross-examine them. I thus do find that there was no evidence of the fairness of the disciplinary process herein. on this alone, I do find that the claimant’s Page 10 of 13

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republicofkenyainthechiefmagistrate’scourtatnakurumcelrccausenoe122of2024betweenjosephmacharianguruclaim antandsojanmispringfiedltdrespondentjudgment termination, though substantively valid, was unproceduraly unfair, hence invalid. 18.Section 49(1) (c) of the Employment Act empowers the court to award, as compensation, the equivalent of a number of months wages or salary not exceeding 12 months based on the gross monthly wage or salary of the employee at the time of dismissal. In determining the compensation to award, section 49(4) requires the court to take into account a number of factors, including the circumstances in which the termination took place and the extent to which the employee caused or contributed to the termination, the employee’s length of service, opportunities for comparable employment, the conduct of the employee which caused or contributed in any extent, to the termination, among others. 19.As I have already stated, the claimant’s conduct in this dispute leaves a lot to be desired, which I cannot completely ignore. Taking into account all the circumstances of this case including the conduct of the claimant, I do find that 1-month compensation is sufficient. This amounts to Kshs. 15,652.00. 20.As to notice pay, I do find that the same was included in the final dues paid to the claimant vide Rexh. No. 13. The same is therefore not claimable and Page 11 of 13

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republicofkenyainthechiefmagistrate’scourtatnakurumcelrccausenoe122of2024betweenjosephmacharianguruclaim antandsojanmispringfiedltdrespondentjudgment awardable again herein. As for leave days, I do agree with the learned counsel for the claimant that the leave application form produced herein as Rexh. N. 10 proves that the claimant applied for leave, but that there is no indication that the same was approved. The claimant was however only entitled to claim for leave for the twelve months starting from 03/12/2022 when he was engaged as per his latest contract and 02/12/2023, when he completed 12 months. He is therefore entitled to leave pay of 30 days X Kshs. 15652/26 = Kshs. 18,060. There was to be added Kshs. 3,400/- leave travelling allowance. The claimant is thus entitled to Kshs. 21, 460/- in unpaid leave. 21.I also find that from the wage order attached and the pay slip produced herein, the claimant was being paid slightly below the minimum wage as prescribed. I do therefore find that he is entitled to the underpayments claimed of Kshs. 15,344/= as pleaded and tabulated. 22.I however find that the claimant has not proved the hours or days served in excess of the legal maximum as claims for overtime. I thus do hereby find that he is not entitled to the claim for overtime payments. He also admitted that he was issued with a certificate of service. Page 12 of 13

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republicofkenyainthechiefmagistrate’scourtatnakurumcelrccausenoe122of2024betweenjosephmacharianguruclaim antandsojanmispringfiedltdrespondentjudgment 23.Having found that the claimant’s termination was unproceduraly fair, I do hereby award the following in damages: i. 1-month compensation – Kshs. 15,652/- ii. Leave and leave travelling allowance – Kshs. 21,460/- iii. Underpayments – Kshs. 15,344/- iv. Costs and interest. It is so ordered. Dated and delivered virtually at Nakuru this…29TH ……day of…SEPTEMBER………., 2026 ALOYCE-PETER-NDEGE SENIOR PRINCIPAL MAGISTRATE In the presence of; Claimant’s Counsel: N/A Respondent’s Counsel: N/A Claimant: N/A Page 13 of 13

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