Pius Sitati Mabaku v Devyani Food Industries Kenya Limited (Formerly Sameer Agriculture and Livestock Limited) [2022] KEELRC 983 (KLR)

Section 43(2) provides that the reason for termination is what the employer genuinely believed to exist at the time. The Claimant was the Supervisor responsible for the safe storage and dispatch of goods; 184 cartons of milk were lost under his watch; he conceded loading 377 cartons took 30-45 minutes, long enough for the excess to be noticed, and admitted he was not vigilant. The Court found the employer discharged the burden of proof on a balance of probabilities.

Section 41 requires an employer to explain the reasons for contemplated termination and hear the employee. The Claimant wrote two letters explaining the stock loss, but neither was a response to a show cause letter; no allegations had been preferred against him and he was not invited to a disciplinary hearing. The Respondent adduced no evidence of compliance with Section 41. The Court found the letters did not amount to the hearing contemplated by the section.

In exercising the discretionary relief under Section 49(1)(c), the Court considered that the Claimant substantively contributed to the termination by his negligence, had previously apologised in writing for a mistake, and had served only one year and one month. On the totality, the equivalent of two months' salary was fair compensation.

Although the payslip showed Kshs.3,500 described as 'days worked (3 days)', this detail was unclear since the Claimant worked the entire month of October 2016, and the Respondent led no evidence that notice pay was in fact paid. In the absence of evidence to the contrary, the Claimant was awarded one month's salary.