Kenya Union of Commercial, Food & Allied Workers v Kisii Bottlers Limited
The bottom line
#Kenya's Court of Appeal ruled that an employer who cannot prove a valid, disclosed reason for firing an employee must compensate them for unfair termination.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was for a valid and lawful reason
The respondent failed to prove drunkenness or any other valid reason; the respondent's own witness admitted there was no proper evidence of drunkenness, and no reason was disclosed in the termination letter
The respondent asserted summary dismissal for drunkenness under Section 44(4)(b) but its witness before the SAC admitted the decision was not disclosed to the grievant and that there was no proper evidence of drunkenness. The termination letter gave no reason, and the respondent declined to give reasons in later meetings. The court held Sections 41 and 43 were not complied with, so the employer did not discharge its burden of proving valid reasons.
Whether termination by contractual notice without prejudice basis cured the unfairness
The invocation of a contractual notice clause did not legitimise the termination where the statutory requirements were not met
The respondent invoked clause (c) of the contract allowing one month's notice and paid one month's salary in lieu. The court found this demonstrated that despite asserting a right to summarily dismiss for drunkenness, the respondent did not in fact do so. Neither Section 41 nor Section 43 of the Employment Act was complied with, so the termination was unprocedural and unlawful, entitling the grievant to compensation.
Appropriate remedies for unfair termination
Reinstatement was inappropriate; compensation under Section 49 was granted, exercised as judicial discretion guided by statutory considerations
Relying on Ol Pejeta Ranching, the court held that remedies under Section 49 involve a raft of considerations including the employee's wishes, practicability of reinstatement, length of service and contribution. The discretion is to be exercised prudently, compensating rather than punishing. As the grievant did not wish reinstatement, the court awarded three months' salary as compensation plus unpaid dues during suspension.
Legal principles established
#- Where an employer fails to provide the reason or reasons for termination in a claim arising out of termination, the termination is deemed unfair
- An employer bears the obligation to prove that the reasons for terminating an employee's employment were valid; failing which the termination is deemed unfair
Court orders
#- 1.The appeal is allowed to the extent that the judgment of the Employment and Labour Relations Court made on 31st January 2017 is set aside
- 2.The respondent will pay to the grievant the amount of salary, benefits and dues due to him that remained unpaid during the period of suspension
- 3.The grievant will have three (3) months' salary as compensation for unlawful termination
- 4.The respondent shall issue a certificate of service
- 5.The appellant shall have the costs of the suit in the trial court and in this appeal
- On appeal from
- Employment and Labour Relations Court at Kericho
- ELRC Cause No 85 of 2016
- Jurisdiction invoked
- First appeal to the Court of Appeal against the judgment of the Employment and Labour Relations Court (Employment Act / Court of Appeal appellate jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Royal Clothing EPZ Limited v Muomo (Employment and Labour Relations Appeal E024 of 2023) [2025] KEELRC 464 (KLR)[2025] KEELRC 464 (KLR)20 Feb 2025followed
Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial, Food & Allied Workers v Kisii Bottlers Limited", Case Analysis (2021). Civil Appeal No 71 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/402/eng@2021-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.