Bakery Confectionery Food Manufacturing and Allied Workers Union (K) v Kenafric Industries Limited (Employment and Labour Relations Cause E771 of 2022) [2025] KEELRC 528 (KLR)
The bottom line
#A Kenyan court ruled that firing a 19-year employee over alleged milk powder theft was unfair because the employer had no direct evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent proved a valid and fair reason for the summary dismissal
The termination was substantively unfair – the respondent failed to prove that the grievant used milk powder for personal use.
The termination letter cited use of milk powder for personal purposes, but the CCTV footage only showed the grievant accessing the dye room and did not show him using milk powder. No witness saw him make tea with the milk powder. The employer's witness (RW1) admitted no one rebutted the claim of coercion into the confession letter and conceded he had no first-hand knowledge. The confession letter was signed before the show cause letter was issued, which was irregular under section 41. The respondent also failed to produce the company policy allegedly breached. The expired warning letters should have been expunged under clause 17(a)(iv) of the CBA.
Whether the disciplinary process was fair under section 41 of the Employment Act
The process was flawed: the grievant was compelled to sign a pre-drafted confession before the allegations were formally put to him, and his appeal was refused as time-barred.
RW1 confirmed that as of 24th October 2019 the grievant had not been issued a show cause letter, making it irregular for him to be compelled to confess to allegations not formally put to him. No security officer testified to rebut the coercion claim. The appeal lodged on 4th December 2019 was declined citing time constraints, denying the grievant an opportunity to canvass it. Taking into account expired warning letters that the CBA required to be expunged also undermined the fairness and proportionality of the dismissal.
What remedies flow from the finding of unfair termination
The claimant was awarded three months' salary in lieu of notice per the CBA and six months' salary as compensation under section 49, less statutory deductions, with costs and interest.
Having found the termination unfair, the court exercised its discretion under section 49 of the Employment Act. The grievant, with 19 years' service and a gross salary of Kshs. 21,961, was entitled to three months' notice pay under clause 4(a) of the CBA. The court awarded six (rather than the maximum twelve) months' salary as compensation for unlawful termination, together with costs of the suit and interest at court rates from the date of judgment.
Legal principles established
#- Termination of employment is unfair where the employer fails to prove that the reason for termination is valid, that it is a fair reason related to the employee's conduct, capacity or compatibility or based on operational requirements, and that fair procedure was followed (section 45(2), Employment Act).
- Where no witness saw the employee commit the alleged misconduct and the employer's own witness concedes no one rebutted the coercion claim, the employer fails to discharge its burden of proving valid reason.
Court orders
#- 1.3 months' salary in lieu of notice as per the CBA = 21,961 x 3 = Kshs. 65,883/-
- 2.6 months' salary as compensation for unlawful termination = 6 x 21,961 = Kshs. 131,766/-
- 3.Total award of Kshs. 197,649/- less statutory deductions
- 4.The respondents to pay costs of the suit plus interest at court rates with effect from the date of the judgment
- Jurisdiction invoked
- Jurisdiction of the Employment and Labour Relations Court over trade disputes and unfair termination claims under the Employment Act, 2007 (admitted by the respondent)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bakery Confectionery Food Manufacturing and Allied Workers Union (K) v Kenafric Industries Limited (Employment and Labour Relations Cause E771 of 2022) [2025] KEELRC 528 (KLR)", Case Analysis (2025). ELRC Cause (Nairobi) – Memorandum of Claim dated 27th October 2022 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/528/eng@2025-02-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.