Del Monte Kenya Limited v Kiptoo (Employment and Labour Relations Appeal E007 of 2024) [2025] KEELRC 45 (KLR)
The bottom line
#A Kenyan court confirmed an employer can dismiss for suspected theft without proving it, but cutting notice to 24 hours made the dismissal unfair and costly.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the dismissal of the respondent was unlawful and unfair
- 2.Whether the reliefs granted to the respondent by the trial court should stand
Key legal issues
#Whether the dismissal was for a valid reason
Yes - the employer had sufficient grounds to suspect the respondent of stealing pineapples, satisfying section 43(2) and 44(4)(g) of the Employment Act
An eyewitness guard saw pineapples being picked and loaded onto the company vehicle by the respondent and CW2; no footprints or motorcycle tyre marks supported the claim of thieves; the respondent failed to report the alleged recovery to his senior or the control room. Under section 43(2), the test is the employer's genuine belief on reasonable grounds, not proof of the offence.
Whether fair procedure under section 41 was followed
No - the 24-hour notice was insufficient and denied the respondent a fair hearing, rendering the termination unfair under section 45
Although the respondent was given a show cause letter and a disciplinary hearing, the 24-hour notice while on suspension did not afford sufficient time to prepare a defence. Following Rebeca Ann Maina v JKUAT, fair hearing includes the right to sufficient notice, accompaniment by a fellow employee, and to call witnesses.
Whether the reliefs granted by the trial court should stand
Partially - compensation reduced from six to four months' gross salary (Kshs.273,800), leave award recomputed on basic pay of Kshs.52,500 to Kshs.551,250; notice pay upheld
The trial court gave no justification for six months' compensation; considering the 15 years of service, the contributory misconduct, and section 49(4) factors, four months was reasonable. Leave was properly awarded as unrebutted evidence, but was wrongly computed on gross salary rather than basic pay of Kshs.52,500.
Legal principles established
#- A first appellate court must re-evaluate the evidence and reach its own conclusions but should not interfere with findings of fact or the exercise of judicial discretion unless unsupported by evidence and law or the result of misdirection
- Under sections 43(2) and 44(4)(g) of the Employment Act, an employer need not prove the criminal offence actually occurred; reasonable and sufficient grounds for suspecting the employee committed a criminal offence against the employer justify summary dismissal
- The right to a fair hearing in disciplinary proceedings includes the right to sufficient notice to prepare and mount a defence; a 24-hour notice to an employee on suspension is insufficient
Court orders
#- 1.The respondent is awarded 4 months gross salary as compensation for the unfair termination being Kshs.273,800
- 2.The respondent is awarded Kshs.551,250 as leave for 15 years
- 3.The rest of the awards granted by the trial court remains unchanged
- 4.Each party shall bear own costs of the appeal because the appeal did not fully succeed
- 5.The award to the respondent is subject to statutory deductions
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (ELRC)
- not stated
- Jurisdiction invoked
- First appellate jurisdiction of the Employment and Labour Relations Court over appeals from the subordinate court (Employment and Labour Relations Court Procedure Rules); the judgment does not cite a specific constitutional provision
Relief refused
#Appellant's prayer that the judgment of the lower court be set aside in its entirety and the respondent's suit be dismissed
The appeal only partially succeeded; the trial court's finding on notice pay and leave was upheld, and the unfair termination declaration stood on procedural grounds
Interference with the trial court's award of salary in lieu of notice
The award was justified; the respondent pleaded a gross salary of Kshs.68,450 and produced pay slips which were unrebutted
Retention of the six months' salary compensation awarded by the trial court
No justification was given for six months' compensation; reduced to four months having considered section 49(4) factors and the respondent's contributory misconduct
Costs
Each party shall bear own costs of the appeal because the appeal did not fully succeed
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The mandate of a first appellate court is to re-evaluate the evidence on record and make its own conclusion.
the employer is not required to prove that indeed the employee stole but rather demonstrate reasonable evidence or suficient grounds of suspecting that the employee committed the ofience.
A notice of 24 hours when the employee was on suspension was not suficient and it denied him a fair hearing.
The respondent is awarded 4 months gross salary as compensation for the unfair termination being Kshs.273,800.
Each party shall bear own costs of the appeal because the appeal did not fully succeed.
Issues in the judgment
#The names of the parties are not stated anywhere in the judgment; it refers only to 'the appellant' and 'the respondent'
The case number of the appeal is not stated; only the date of the Memorandum of Appeal is given
The same authority appears in two slightly different spellings, 'Rebecca Ann Maina & other' in submissions and 'Rebeca Ann Maina & 2 others' in the court's discussion
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Del Monte Kenya Limited v Kiptoo (Employment and Labour Relations Appeal E007 of 2024) [2025] KEELRC 45 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 5th April 2024 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/45/eng@2025-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.