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ELRCPartially AllowedNot stated in the judgment· [2025] KEELRC 2380 (KLR)

Kenya Union of Commercial Food and Allied Workers v Thika Water & Sewerage Company Limited (Cause 1063 of 2018) [2025] KEELRC 2380 (KLR)

Employment and Labour Relations Court
31 July 2025
3,764 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant, a trade union with a recognition agreement, sued on behalf of its grievant, Michael Njoroge Mwaura, formerly Acting Finance Manager of Thika Municipal Council, whose employment was summarily terminated on 21 April 2017 following investigations into double-paid cheques and unbanked funds. The Claimant sought a declaration that the dismissal was unfair, reinstatement, suspension-period salary of Kshs. 782,041.56, compensation and costs. The Respondent maintained that the dismissal followed a lawful disciplinary process on proven charges. The court framed three issues: procedural and substantive fairness, entitlement to reliefs, and costs. On fairness, the court held that an investigation which may adversely affect an employee is an administrative action attracting the audi alteram partem rule, relying on South African authority; here the investigating committee reported without hearing the Grievant. The employer also breached section 41 of the Employment Act by failing to supply documents requested for the defence, and proceeded with a disciplinary committee whose impartiality the Grievant had legitimately protested. On substance, the Respondent's witness admitted the dismissal grounds differed from the show cause letter, and the employer failed to prove the reasons under sections 43 and 45; an adverse inference was drawn from non-production of documents despite a notice to produce. Reinstatement was refused because the three-year limitation in section 12(3) of the ELRC Act had lapsed. Judgment was entered for the Claimant: a declaration of unfair and wrongful dismissal, five months' gross salary as compensation (KShs. 1,303,402.60), suspension-period salary (KShs. 782,041.56), interest at court rates, and costs of the suit.

Key legal issues

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01

Whether the right to be heard applies to investigative proceedings

Holding

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

Reasoning

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.

p. 5
02

Procedural fairness under section 41 of the Employment Act

Holding

The employer breached section 41 by failing to supply requested documents and proceeding with a committee whose impartiality was legitimately protested

Reasoning

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.

p. 6
03

Substantive fairness under sections 43 and 45 of the Employment Act

Holding

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

Reasoning

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.

p. 7
04

Whether reinstatement could be granted

Holding

Reinstatement refused because the three-year limit under section 12(3) of the ELRC Act had expired

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.A declaration that the summary dismissal against the Grievant was unfair and wrongful
  2. 2.Compensation pursuant to section 49(1)(c) of the Employment Act of five months' gross salary, KShs. 1,303,402.60
  3. 3.Salary for the months the Grievant remained under suspension, KShs. 782,041.56
  4. 4.Interest on the awarded sum at court rates from the date of the judgment till full payment
  5. 5.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 49(1)(c) and 49(3)
  • Employment ActSection 50
  • Employment and Labour Relations Court ActSection 12(3) [and 12(3)(vii) as cited in Kenya Airways]
  • Collective Bargaining AgreementArticle 20; Clause 9.4 (service pay)

Cases cited (4)

  • Masetiha v President of the Republic of South Africa & another
    2008 [1] SA 566 [CC]
  • Msiza v Motau N.O and Another
    [78587/2018] [2020] ZAGPPHC 366; 2020
  • Regent Management Ltd v Wilberforce Ojiambo Oundo
    [2018] eKLR
  • Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 others
    [2014] eKLR
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

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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, "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.