Ongera v Transebel Ltd (Branan Flowers) (Cause 2175 of 2017) [2023] KEELRC 240 (KLR)

The notice to show cause and termination letter alleged the Claimant, a security supervisor, was part of a network stealing company property. The Claimant did not deny the accusations or explain the thefts despite being the officer on the ground, instead requesting that other persons be summoned. The court held his allegations of threats since 2003 were diversionary and that he did not sufficiently rebut the allegations to eradicate the employer's suspicion, satisfying Section 43 read with Section 44(4)(c) of the Employment Act.

Although the Claimant was issued a notice to show cause, responded to it and attended a hearing where he was entitled to be accompanied by an employee of his choice, he twice requested that specific persons with information about the alleged thefts attend the hearing. The Respondent neither acknowledged nor responded to these requests nor explained why the witnesses could not be summoned, which vitiated the process. The court therefore found the Respondent failed to demonstrate fair procedure within the meaning of Section 45.

Applying Coastal Bottlers Ltd v Kimathi Mithika and Krystalline Salt Ltd v Kwekwe Mwakele, the court examined whether the discharge voucher was voluntarily executed. The Claimant confirmed on cross-examination that he signed the document willingly and alleged no misrepresentation, fraud or other vitiating element. The court gave effect to the parties' intention, holding the agreement absolved the Respondent from further claims under the contract or in relation to the termination.

The court reasoned that since the settlement agreement executed by the parties discharged the Respondent from further claims, the issue of entitlement to terminal dues and compensatory damages did not arise. The conclusion followed from the waiver finding rather than an independent assessment of quantum, and the suit was dismissed with each party bearing their own costs.