Macharia v Brookside Dairy Limited (Employment and Labour Relations Appeal E180 of 2024) [2025] KEELRC 314 (KLR)
The bottom line
#Kenya's Employment Court ruled an employer must prove it served a disciplinary notice and heard the employee, or any dismissal is unfair.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness in summary dismissal
The summary dismissal was procedurally unfair because service of the show cause letter was not proved and the Appellant was never invited to a disciplinary hearing
Section 41 of the Employment Act prescribes a mandatory procedure of notification, hearing and consideration. The Respondent bore the burden of proving service of the show cause letter by email and post. No certificate of postage was tendered and the email document tendered bore no sender address, message or confirmation of receipt and was found to have been fabricated for the suit. The Appellant was never invited to a disciplinary hearing.
Substantive fairness and the employer's burden under sections 43 and 45
The Respondent failed to prove a valid and fair reason for the dismissal; a reason the employee was not given an opportunity to defend against cannot be valid and fair
Sections 43 and 45 place the burden on the employer to prove the reasons for termination and their validity and fairness. Because the employer dismissed the employee without notifying him of the charges or hearing him, the reasons relied upon could not be validated. The court warned against employers treating procedural unfairness as curable while preserving substantive validity, as this would erode the post-2007 labour relations protections.
Reliefs for unfair termination and independently grantable reliefs
The Appellant was awarded seven months' compensation under section 49(1)(c), notice pay, leave dues, salary for May 2018 days worked, and house allowance under section 31
Compensation under section 49(1)(c) is discretionary and justified at seven months given the Respondent's deliberate breach of procedural fairness and unfair labour practice, and the nine years of service. Notice pay was due as the one-month notice contractually required was not issued. The Respondent admitted 52 untaken leave days and salary for May 2018. House allowance was payable because the letter of appointment provided neither house allowance nor accommodation and the salary was not proved consolidated.
Effect of criminal acquittal on employment dismissal
The Respondent argued mere acquittal does not negate its reasonable belief in the reason for dismissal, but the court's holding rested on the absence of fair procedure
The Appellant relied on his acquittal under section 210 of the Criminal Procedure Code on the basis that the trial court found he lacked access to the computer system. The Respondent contended the acquittal came long after termination and did not negate its reasonable grounds. The court's determination was grounded in procedural and substantive unfairness rather than the acquittal itself.
Legal principles established
#- A fair termination embodies both procedural fairness and substantive justification under section 45 of the Employment Act; lack of either renders the termination unfair
- The employer bears the legal burden of proving service of a show cause letter; postage must be proved by a certificate of postage or testimony of the person who posted the letter
- A reason for termination that the employee was never invited to defend against cannot be held to be a valid and fair reason; procedural unfairness taints substantive fairness
- A first appellate court must re-evaluate the material before the trial court afresh and reach its own conclusions, while making allowance for not having seen or heard the witnesses
Court orders
#- 1.The Learned Trial Magistrate's Judgment is set aside and Judgment entered for the Appellant
- 2.A declaration that the summary dismissal against the Appellant was unfair
- 3.Compensation under Section 49(1)(c) of the Employment Act of seven months' gross salary, KShs. 165,000.00
- 4.Notice pay of KShs. 33,000.00
- 5.Payment for admitted earned but unutilized leave days (52 leave days) of KShs. 57,250.00
- 6.Salary for the days worked in May 2018 of KShs. 6,600.00
- 7.Unpaid house allowance of KShs. 297,000.00
- 8.Interest on awards (ii), (iii) and (vi) at court rates from the date of Judgment till full payment
- 9.Interest on awards (iv) and (v) at court rates from filing of the suit till full payment
- 10.Costs of the suit in the lower court and this appeal to the Appellant
- On appeal from
- Magistrates' Court (Lower Court)
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction over the learned Trial Magistrate's judgment in an employment dispute (Employment and Labour Relations Court Act); exact provision not cited in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Macharia v Brookside Dairy Limited (Employment and Labour Relations Appeal E180 of 2024) [2025] KEELRC 314 (KLR)", Case Analysis (2025). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/314/eng@2025-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.