Itabari v Common Wealth War Graves Commission (Cause E952 of 2023) [2025] KEELRC 847 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Justifiable reason for termination
The Respondent failed to prove a justifiable reason on a balance of probabilities
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.
Procedural fairness
The process breached Section 41 of the Employment Act
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.
Reliefs
Compensatory damages of six months' salary awarded; constitutional and residual-period damages declined
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.
Legal principles established
#- 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
#- 1.A declaration that the termination of the Claimant from employment was unfair and unlawful
- 2.Compensatory damages of Kshs 1,030,494.00 being equivalent to six months of the Claimant's salary
- 3.Interest on the damages at court rates from the date of Judgment until payment in full
- 4.Costs of the suit to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.