Kenya Union of Commercial Food and Allied Workers v Thika Water & Sewerage Company Limited (Cause 1063 of 2018) [2025] KEELRC 2380 (KLR)
The bottom line
#Kenya's Employment Court ruled Thika Municipal Council unfairly dismissed its finance manager for denying him documents, a fair hearing, and consistent dismissal grounds.
What this practically means
#Executive summary
#Key legal issues
#Whether the right to be heard applies to investigative proceedings
Yes; where an investigation may adversely affect an employee it is an administrative action and the audi alteram partem rule applies before adverse findings are made
The court held that fairness, integrity and transparency are essential in workplace processes. An investigation that may adversely affect an employee constitutes an administrative action, so the employee must be heard before adverse findings or recommendations are made. It relied on South African authority (Masetiha; Msiza) and reasoned that an investigator's failure to hear the employee taints the subsequent disciplinary process. Here the investigating committee submitted its report without first hearing the Grievant.
Procedural fairness under section 41 of the Employment Act
The employer breached section 41 by failing to supply requested documents and proceeding with a committee whose impartiality was legitimately protested
Section 41 requires the employer to inform the employee of the grounds, afford an adequate opportunity to prepare representations, and consider them. The Grievant requested bank reconciliations, the investigation report and cheques, which were inexplicably not supplied, as the disciplinary minutes confirmed. He also protested the committee's composition with reason, since members had investigated the matter or had conflicts of interest, and the employer proceeded without addressing the protest.
Substantive fairness under sections 43 and 45 of the Employment Act
The dismissal was not substantively fair because the employer dismissed the Grievant on grounds different from those in the show cause letter and failed to prove the reasons
Section 43 places the burden of proving the reasons for termination on the employer, and section 45 requires those reasons to be fair and valid. The Respondent's witness admitted the grounds in the dismissal letter differed from those in the show cause letter. The employer's evidence was too vague, and the documents on which the dismissal was based were not produced in court despite a notice to produce, warranting an adverse inference.
Whether reinstatement could be granted
Reinstatement refused because the three-year limit under section 12(3) of the ELRC Act had expired
Although the court could have ordered reinstatement on the merits, section 12(3) of the Employment and Labour Relations Court Act confines that power to three years from dismissal. More than three years had elapsed since the 21 April 2017 dismissal, so the discretion was spent. The court instead awarded compensation under section 49(1)(c), considering the unfair process, the length of service and the employer's failure to prove the dismissal was justified.
Legal principles established
#- Where an investigation may adversely affect an employee, it constitutes an administrative action and the employee must be heard before adverse findings are made
- Documents or information requested by an employee to prepare representations must be supplied in sufficient time before a disciplinary hearing
- If an investigation report forms the basis of disciplinary action, the employer must share it with the employee in advance
- A termination must be based on the grounds set out in the show cause letter which the employee was asked to defend against
- Failure to produce documents despite a notice to produce attracts an adverse inference
Court orders
#- 1.A declaration that the summary dismissal against the Grievant was unfair and wrongful
- 2.Compensation pursuant to section 49(1)(c) of the Employment Act of five months' gross salary, KShs. 1,303,402.60
- 3.Salary for the months the Grievant remained under suspension, KShs. 782,041.56
- 4.Interest on the awarded sum at court rates from the date of the judgment till full payment
- 5.Costs of the suit to the Claimant
- Jurisdiction invoked
- Original jurisdiction under the Employment Act and the Employment and Labour Relations Court Act (referenced through sections 41, 43, 45, 49 of the Employment Act, 2007 and section 12(3) of the ELRC Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial Food and Allied Workers v Thika Water & Sewerage Company Limited (Cause 1063 of 2018) [2025] KEELRC 2380 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2380/eng@2025-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.