Njeru v New Kenya Co-operative Creameries Limited (Cause 10 of 2018) [2025] KEELRC 976 (KLR)

The Claimant received a show cause dated 20 December 2016, was suspended on 9 January 2017 with an opportunity to explain, and attended a disciplinary hearing on 30 March 2017 where he made representations with shop stewards present. The Court found substantive compliance with the procedural fairness requirements of sections 35(1) and 41 of the Employment Act.

Sections 43 and 45 place the burden of proving reasons for termination on the employer. The Respondent produced an investigation report showing fewer crates of mala were delivered than invoiced, and the Claimant owned up during the investigations interview. On this evidence the Court found the reasons valid and fair.

The gravamen of the claim was breach of contract (suspension without salary, accrued leave, overtime, failure to furnish the Disciplinary Committee decision). Unfair termination was raised only in submissions. The Court nonetheless examined it because the Respondent asserted termination followed a disciplinary process.

The suspension letter relied on clause 24(ii) of a Collective Bargaining Agreement, but a copy of the Agreement was not placed before the Court. The Claimant also did not produce pay slips for the material period to establish his earnings. The claim therefore failed on the burden of proof.

Under section 28(4) of the Employment Act only leave for the last 18 months before separation can be considered. The Respondent did not produce the Claimant's leave records despite them being in the list of documents, so the Court awarded commuted leave at one and a half basic salary.

The Claimant sought Kshs 480,705/- as overtime pay but gave no details of the overtime worked and no evidential or legal basis was advanced. The head of claim therefore failed.