New Kenya Co-operative Creameries v Aminga (Appeal E001 of 2022) [2024] KEELRC 18 (KLR)

The audit report did not contain any particularized allegation against the respondent personally; charges were collective against him and co-workers. No records of specific dates, times, entries or places of alleged misconduct were availed, and no evidence existed of the promised further investigation. Section 43 requires the employer to prove genuine and reasonable grounds, which suspicion alone cannot satisfy.

The show-cause letter did not attach the audit report, and the respondent's request for it was never honoured. He encountered the report for the first time at the hearing and could not question its author. The hearing notice did not inform him of his rights to a co-worker or union representative of his choice, and the mass hearing denied individualized consideration, turning the session into a grilling.

The court applied Section 49(1) and (4) of the Employment Act, weighing the length of service, absence of terminal dues, lack of willingness to re-engage, and the employer's failure to accord a fair hearing. Notice pay followed automatically from the unfair termination, and the leave claim stood because the employer, as custodian of records, produced none to dislodge it. A certificate of service is mandatory under Section 51.

The court found the complaint unfounded on the record: the learned trial magistrate had clearly analysed the evidence adduced by both sides and the rival submissions in his judgment. The only part of the trial judgment reversed was the finding that the procedure applied was lawful, as this court held the unfairness lay in both substance and procedure, not procedure alone.