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ELRCPartially AllowedNot stated in judgment (referenced related cause: Nairobi Cause No E687 of 2020)· [2025] KEELRC 142 (KLR)

Bakery Confectionery Food Manufacturing & Allied Workers v Kenafric Industries Ltd (Cause E1035 of 2021) [2025] KEELRC 142 (KLR)

Employment and Labour Relations Court
30 January 2025
1,035 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a dismissed Kenafric Industries worker over Kshs 229,000 because the company skipped the hearing and couldn't prove the firing was fair.

What this practically means

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Executive summary

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The Union, on behalf of Grievant Alexander Nzioki Mutua, a Boiler Operator employed by Kenafric Industries Ltd around 6 June 1998, claimed unfair termination and breach of contract following his summary dismissal on 26 February 2019 for careless and improper performance of duties. A show cause notice had been issued on 13 February 2019, a disciplinary hearing held on 18 February 2019, and an internal appeal heard on 11 March 2019 upheld the dismissal. A conciliator recommended conversion to normal termination, which the Respondent rejected. The Respondent raised a preliminary objection on limitation under section 90 of the Employment Act, which failed as the claim was filed within three years. The Respondent and its advocates did not attend the hearing despite service, and the Grievant's uncontroverted testimony went unrebutted. The court found procedural fairness was complied with, but the dismissal was substantively unfair because the employer failed to discharge its burden under sections 43 and 45 to prove the validity and fairness of the dismissal reasons. The court awarded compensation equivalent to 10 months' gross salary (Kshs 185,260/-, computed on the separation salary of Kshs 18,526/- since the decree in a related underpayment cause had been stayed) and three months' pay in lieu of notice (Kshs 43,761/-), totalling Kshs 229,021/- with interest at court rates from the date of judgment. Claims for unpaid leave (Kshs 27,708/-) and underpayments (Kshs 40,431/-) were declined for lack of evidential foundation and because the related judgment was stayed. Each party was ordered to bear its own costs in light of the ongoing social partnership between the parties.

Key legal issues

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01

Limitation under section 90 of the Employment Act

Holding

The preliminary objection failed because the memorandum of claim was lodged within the prescribed 3-year limitation period.

Reasoning

The Grievant was dismissed on 26 February 2019 and the memorandum of claim was lodged on 14 December 2021, which is within the 3-year limitation period prescribed by section 90 of the Employment Act. The court therefore found the objection without merit and proceeded to hear the claim on its merits.

p. 2
02

Procedural fairness of the dismissal

Holding

The Respondent complied with procedural fairness by issuing a show cause notice, holding a disciplinary hearing, and entertaining an appeal.

Reasoning

The Grievant was issued a show cause notice setting out the allegations, responded to it, attended a physical disciplinary hearing, and was dismissed. The Union lodged an appeal and an appeal hearing was held. The court was satisfied these steps met the requirements of procedural fairness under the Employment Act.

p. 2
03

Substantive fairness of the dismissal

Holding

The dismissal was substantively unfair because the Respondent, though served, did not attend court to prove the validity and fairness of the reasons for dismissal.

Reasoning

The reasons given were careless and improper performance of duties. Under sections 43 and 45 of the Employment Act the employer must lead evidence to prove the validity and fairness of the reasons. The Respondent was served with a hearing notice but did not attend and gave no explanation; its un-rebutted failure meant it did not discharge the legal burden, rendering the dismissal substantively unfair.

p. 2
04

Assessment of compensation and salary basis

Holding

Compensation equivalent of 10 months gross salary was awarded, computed on the actual gross salary at separation of Kshs 18,526/- because the decree in the related underpayment cause was stayed.

Reasoning

Considering the Grievant's roughly 21 years of service and the employer's procedural compliance but failure to prove substantive fairness, 10 months' gross salary was appropriate. Because the judgment in Nairobi Cause No E687 of 2020 was stayed by a differently constituted court on 17 January 2025, the court relied on the actual gross salary at separation rather than the pre-reduction salary.

p. 3
05

Salary in lieu of notice

Holding

The claim for three months' salary in lieu of notice was allowed under clause 4 of the Collective Bargaining Agreement.

Reasoning

With the dismissal found unfair, and considering clause 4 of the Collective Bargaining Agreement, the court allowed the head of claim for the equivalent of three months' salary in lieu of notice, based on the Grievant's basic salary of Kshs 14,587/-, awarding Kshs 43,761/-.

p. 3

Legal principles established

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  • Under sections 43 and 45 of the Employment Act, the employer bears the legal burden of proving the validity and fairness of the reasons for dismissal.
  • A claim filed within three years of dismissal is not barred by the limitation period in section 90 of the Employment Act.
  • Uncontroverted testimony of a claimant, where the absent employer offers no explanation for non-attendance, may ground a finding of substantive unfairness.

Court orders

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  1. 1.Compensation of Kshs 185,260/- (equivalent of 10 months gross salary)
  2. 2.Pay in lieu of notice of Kshs 43,761/-
  3. 3.Total award of Kshs 229,021/- with interest at court rates from the date of judgment
  4. 4.Each party to bear own costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Labour Relations Act (trade dispute referred to Cabinet Secretary, Labour)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Bakery Confectionery Food Manufacturing & Allied Workers v Kenafric Industries Ltd (Cause E1035 of 2021) [2025] KEELRC 142 (KLR)", Case Analysis (2025). Not stated in judgment (referenced related cause: Nairobi Cause No E687 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/142/eng@2025-01-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.