Busienei v Postal Corporation of Kenya (Cause 349 of 2019) [2025] KEELRC 439 (KLR)

The Court applied section 41 of the Employment Act, which mandates notification of reasons, opportunity for representation in the presence of a fellow employee or union representative, and consideration of those representations. The disciplinary notice of 23rd August 2017 set out the accusations and right of accompaniment; the Claimant was invited to a hearing on 3rd November 2017, attended, and made representations which were not discounted. The Respondent thus satisfied the mandatory procedure.

Sections 43 and 45para 2 place on the employer the burden of proving valid and fair reasons. The Respondent relied on an internal investigation report it never produced in court. It had referred the matter to the Directorate of Criminal Investigations, whose report exonerated the Claimant and recommended prosecution of other employees, yet the Respondent admitted it did not consider that report when terminating. A reasonable employer could only sustain a negligence charge with cogent evidence discounting the investigators' findings, which the Respondent lacked.

Section 49para 1[c] confers discretionary compensatory powers. The Court weighed the circumstances: the Claimant suffered for infractions of others, the Respondent's inexplicable failure to consider the DCI report it had itself procured, evidencing ill faith, and the Claimant's 26 years of service. Employment was terminable by notice under section 35; none was issued and salary in lieu was not proved, triggering entitlement under section 36.

A person alleging breach of a constitutional provision must plead it with reasonable precision and sufficiently prove it. The Court found the Claimant's material did not sufficiently demonstrate the breach, and accordingly declined the declaration and the general damages founded on the alleged violation.