Alfred Kipkoech Kibet v Mumias Sugar Company Ltd [2021] KEELRC 84 (KLR)

The court evaluated the investigation report and witness statements. The security guard reported loading 5 rolls of copper tapes into the Claimant's private car after being told the materials were for him; the Claimant admitted being at the school on the material date. Section 43(2) grounds the reason in what the employer germanely believed at termination. The Claimant's assertion that the termination was retaliation for a complaint letter was unproved as the letter was unacknowledged and not raised in his show-cause response.

Section 41 mandates an explanation of reasons in a language the employee understands and entitlement to a fellow employee or union representative's presence. The show cause letter and response preceded termination, but no disciplinary hearing was held and the appeal was decided without a hearing. The Court of Appeal in Postal Corporation of Kenya v Andrew K. Tanui held section 41 mandatory. Despite valid reasons, absence of a hearing rendered the termination unlawful and unfair.

The appointment letter and employer manual provided for two months' notice for service over five years, so the Claimant was awarded Kshs. 354,157.54. On leave, the Respondent did not dispute the claim or produce leave records as required under section 74(1)(f), a position followed from Gilbert Mariera Makori v Equity Bank Limited, so 28 days' leave was awarded at Kshs. 81,368.00.

Under sections 49(1)(c) and 49(4), the court considered the circumstances, the employee's contribution, length of service of about five years, and the fact that he had secured comparable employment at Kwale Sugar Company. Because valid reasons existed, the Claimant contributed to the termination, so three months' gross salary (Kshs. 531,236.31) was deemed adequate rather than the twelve months sought.