Obonyo O. Waringa & 3 others v New Kenya Co-Operative Creameries Limited [2015] KEELRC 801 (KLR)

Section 43 of the Employment Act, 2007 places the burden on the employer to prove the reasons for termination on a balance of probability. Although the Claimants were charged with numerous offences and gave detailed responses, the Respondent chose not to lead any evidence in support of the accusations, and there was no evidence that the Claimants' responses were considered. The accusations therefore remained unsupported.

Section 41 of the Employment Act, 2007 requires the employer to explain the reasons for termination in a language the employee understands, allow a representative to be present, and hear and consider explanations. No evidence was adduced that the Claimants were taken through this procedure, and the Respondent called no witnesses, so the dismissals failed the procedural fairness test as well.

In light of the findings of substantive and procedural unfairness, the court exercised its remedial discretion to award the equivalent of three months' salary as compensation to each Claimant, notice pay, and salary for the suspension period. The leave claims were abandoned at hearing while gratuity and salary for the remainder of the contract were not proved.

The Respondent sought Kshs.200,000.00 from the 1st and 3rd Claimants and the Claimant in Cause No 1498 of 2010, alleging diverted company funds. Having elected not to call any witnesses or lead evidence, the Respondent failed to discharge its burden of proving the counterclaim, which therefore failed and was dismissed.