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ELRCPartially AllowedStatement of Claim dated 20th November 2023· [2025] KEELRC 847 (KLR)

Itabari v Common Wealth War Graves Commission (Cause E952 of 2023) [2025] KEELRC 847 (KLR)

Employment and Labour Relations Court
14 March 2025
6,023 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer that fires staff based on unsigned statements it never tested must pay six months' salary for unfair dismissal.

What this practically means

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Executive summary

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The Claimant, employed as a Technical Supervisor (Horticulture) from 23rd November 2020, was summarily dismissed in August 2023 following a complaint by his line manager, Beatrice Mwenesi, alleging inappropriate comments, demeaning talk, bullying and harassment - notably a comment that if she was raped in the bushes she would deserve it. The Respondent investigated, conducted a disciplinary hearing on 4th August 2023, and terminated his employment for gross misconduct under Section 44(4)(c) of the Employment Act and its disciplinary policy. The court framed three issues: justifiable reason, procedural fairness, and reliefs. On the first, it found the Respondent failed to discharge its evidential burden under Sections 43(1) and 45(2) of the Employment Act: the complainant, the investigator, and the employees whose unsigned statements formed the basis of the findings were never produced before the disciplinary panel, leaving their veracity untested. On procedure, the court held the process unfair because the Claimant was not given the comprehensive Investigation Report or witness statements, his companion was denied the promised opportunity to make representations, the complainant was not available for cross-examination, and the companion's statement was ignored. The termination was declared unfair and unlawful, and compensatory damages of Kshs 1,030,494.00 (six months' salary) with interest and costs were awarded. Separate constitutional damages and residual-period compensation were declined as duplicative and anticipatory respectively.

Key legal issues

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01

Justifiable reason for termination

Holding

The Respondent failed to prove a justifiable reason on a balance of probabilities

Reasoning

The disciplinary panel relied wholly on unsigned witness statements and an investigation report without calling the complainant Beatrice, the investigator RW1 or any of the interviewees. The panel therefore never tested the veracity of the allegations. The probative value of unsigned statements is very low, and the evidentiary material did not substantiate the allegations of derogatory and insulting comments.

p. 9
02

Procedural fairness

Holding

The process breached Section 41 of the Employment Act

Reasoning

The Claimant was not supplied with the comprehensive Investigation Report or the witness statements relied upon; his companion Isabel was denied the opportunity to make representations despite prior assurance; the complainant was not produced for cross-examination; and Isabel's statement was not considered. The withholding of crucial evidentiary material rendered the process unfair.

p. 11
03

Reliefs

Holding

Compensatory damages of six months' salary awarded; constitutional and residual-period damages declined

Reasoning

Six months' compensation reflects the length of employment and circumstances of termination. A separate constitutional damages award was declined as duplicative, and residual contract compensation was declined as anticipatory, following D K Njagi Marete v Teachers Service Commission.

p. 11

Legal principles established

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  • An employer must prove reasons for termination on a balance of probabilities, and failure renders termination unfair
  • An employee is entitled to documents in the employer's possession that would assist in preparing their defence to disciplinary charges
  • Where complainant and witness statements are the basis of termination, the employer should produce them before the disciplinary panel for testing

Court orders

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  1. 1.A declaration that the termination of the Claimant from employment was unfair and unlawful
  2. 2.Compensatory damages of Kshs 1,030,494.00 being equivalent to six months of the Claimant's salary
  3. 3.Interest on the damages at court rates from the date of Judgment until payment in full
  4. 4.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment ActSections 41, 43(1), 44(4)(c), 45
  • Constitution of KenyaArticle 41
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d), 48

Cases cited (13)

  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Pamela Nelima Lutta v Mumias Sugar Co. Ltd
    [2017] eKLR
  • Beatrice Nyambune Mosiria v Judicial Service Commission
    [2019] eKLR
  • Robert Chaka Ndupha v Crown Bus Services
    [2017] eKLR
  • Moses Ochieng v Unilever Kenya Limited
    [2018] eKLR
  • Ann Maina & 2 Others v Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
  • Robert Kenga & another v Ocean Sports Resort
    [2015] eKLR
  • Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others
    [2019] eKLR
  • CFC Stanbic Bank Limited v Danson Mwashako Mwakuwona
    [2015] eKLR
  • Joseph Onyango Asere v Brookside Dairy Limited
    [2016] eKLR
  • Rebecca Ann Maina & 2 others v Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
  • NEC Corporation v Samuel Gitau Njenga
    [2018] eKLR
  • D K Njagi Marete v Teachers Service Commission
    [2020] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

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, "Itabari v Common Wealth War Graves Commission (Cause E952 of 2023) [2025] KEELRC 847 (KLR)", Case Analysis (2025). Statement of Claim dated 20th November 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/847/eng@2025-03-14

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