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ELRCPartially AllowedNot stated in the judgment (Employment and Labour Relations Court cause, Nairobi)

Kenya Union of Commercial, Food & Allied Workers v Kenya Breweries Limited (Cause E021 of 2023) [2025] KEELRC 3030 (KLR)

Employment and Labour Relations Court of Kenya
30 October 2025
16,395 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~66 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded an employee over Kshs. 8.3 million after finding his dismissal was unfair and discriminatory.

What this practically means

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Executive summary

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The Claimant union, on behalf of its member Michael Lipesa (the Grievant), challenged the termination of his employment by the Respondent following the disappearance of 6,635 KRA tax stamps from the keg line safe during his night shift of 4th/5th December 2020. The Grievant, a Senior Technical Operator with 15 years and 5 months of service, was suspended, issued a show-cause letter, subjected to a disciplinary hearing, and terminated on 22nd February 2021 for gross misconduct and negligence. He sought reinstatement (per the Conciliator's report of 5th January 2022), or alternatively payment to retirement, maximum compensation, redundancy treatment, or damages for discrimination. The court framed three issues: validity of reasons, procedural fairness, and entitlement to reliefs. On the evidence, the court found 11 people could access the safe room, all team leaders held safe keys, no handover-at-safe procedure existed at the material time, and the EGMS screenshot did not cover the material dates of 4th and 5th December 2020; these gaps created doubt that the Grievant was responsible, and the Respondent was found not to be a reasonable employer. Procedurally, section 41 was substantially complied with, but recalling the co-accused Ndichu from suspension while dismissing the Grievant for the same offence was unjustified discrimination that tainted the process. Reinstatement was unavailable after three years; payment to retirement is not a section 49 remedy. The court awarded notice pay of Kshs. 568,670.89, maximum 12 months' compensation of Kshs. 6,824,050.68, and Kshs. 1,000,000 discrimination damages, totalling Kshs. 8,392,721.57, plus costs with interest from judgment, and a 30-day stay.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Respondent had valid reasons for terminating the employment of the Grievant
  2. 2.Whether the Grievant's termination was procedurally fair and lawful
  3. 3.Whether the Grievant is entitled to the reliefs sought

Key legal issues

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01

Whether the Respondent had valid reasons for terminating the Grievant's employment over the loss of 6,635 KRA tax stamps

Holding

No valid reason was established; the court found the Respondent was not a reasonable employer in concluding the Grievant stole the stamps

Reasoning

Eleven people could access the safe room, all team leaders had the safe key, the handover-at-safe procedure relied on by the Respondent only took effect on 18th December 2020 (after the incident), the EGMS screenshot only covered dates up to 3rd December, and the first police investigator implicated only Ndichu. These gaps created doubts that the Grievant was responsible, so the employer lacked a genuinely held valid reason on a balance of probabilities.

p. 21
02

Whether the termination was procedurally fair and lawful

Holding

The Respondent substantially complied with section 41 procedural fairness, but the process was tainted by discrimination against the Grievant, rendering the termination unfair

Reasoning

The Grievant was issued a show-cause letter, responded, was heard with representation, and appealed. The extension of suspension was justified by the police involvement. However, his colleague Ndichu, accused of the same offence, was recalled from suspension and continued working while the Grievant remained dismissed, an unjustified differential treatment amounting to discrimination that tainted the process.

p. 22
03

Whether the pending criminal charge against the Grievant supported the reason for termination

Holding

The criminal case carried little weight because the Grievant was charged after the termination and the criminal process is distinct from the disciplinary process

Reasoning

The Grievant was charged on 23rd June 2021, months after the termination on 22nd February 2021, and the criminal case remained undetermined. The court noted the first police investigator had recommended charging only Ndichu, and only later implicated the Grievant in a supplementary statement, which undermined reliance on the criminal process to justify the dismissal.

p. 22
04

What remedies the Grievant was entitled to

Holding

Reinstatement was unavailable after three years; the Grievant received one month's notice pay, maximum 12 months' compensation for unfair termination, and Kshs. 1,000,000 for discrimination

Reasoning

Section 12 of the ELRC Act bars reinstatement beyond three years of dismissal. Payment for the remainder of the contract is not a section 49 remedy. Given the Grievant's 15 years and 5 months of service, clean disciplinary record, compliance with then-existing procedures, and the discrimination suffered, maximum compensation of 12 months' gross salary was awarded, plus separate discrimination damages.

p. 24

Legal principles established

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  • A termination of employment is unfair where the employer fails to prove a valid and fair reason and that fair procedure under section 41 was followed; both substantive and procedural fairness must be satisfied
  • The burden of proving that unfair termination occurred rests on the employee, while the burden of justifying the grounds for termination rests on the employer (section 47(5), Employment Act)
  • Treating similarly accused employees differently without justification amounts to discrimination under section 5 of the Employment Act and Article 27 of the Constitution, which taints the disciplinary process
  • Once a court finds a termination wrongful or unfair, its remaining task is to determine the appropriate remedy under section 49 of the Employment Act

Court orders

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  1. 1.Declaration that the termination of the Grievant's employment was unfair
  2. 2.Notice pay of 1 month's salary of Kshs. 568,670.89 under section 36 of the Employment Act
  3. 3.Compensation for unfair termination equivalent of 12 months' gross salary, Kshs. 6,824,050.68
  4. 4.Damages for discrimination of Kshs. 1,000,000
  5. 5.Total sum of Kshs. 8,392,721.57 plus costs of the suit with interest from the date of judgment
  6. 6.Stay of 30 days granted

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Jurisdiction of the Employment and Labour Relations Court under the Employment and Labour Relations Court Act (including section 12 on reinstatement within three years of dismissal) and the Employment Act, 2007 following a Certificate of Unresolved Trade Dispute

Relief refused

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Reinstatement of the Grievant to his previous position with continuity of service

More than three years had elapsed since the dismissal, so reinstatement was no longer available under section 12 of the Employment and Labour Relations Court Act

p. 22

Payment for the remainder of the Grievant's service to retirement (13 years and six months)

Payment for the remainder of contract is not a remedy under section 49 of the Employment Act; remedies are limited to those under section 49

p. 22

Treatment of the Grievant as having been declared redundant and payment of redundancy benefits under the CBA

The claim failed as the court found the termination unfair but awarded statutory remedies instead; redundancy was not established

Order that the Respondent settle the Grievant's loans and interest, or general damages for violation of constitutional and labour rights

Not specifically awarded; the court granted the statutory remedies of notice pay, 12 months' compensation and discrimination damages instead

Costs

Costs of the suit awarded to the Claimant, with the parties (being under a CBA) encouraged to negotiate on costs, failing which the taxing master can assess; interest on the total award from the date of judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In conclusion, the claim is held as merited on balance of probabilities. Judgment is entered for the claimant on behalf of the grievant against the respondent as follows: a. The termination is held as unfair.
p. 24Disposition and declaration of unfair termination
Total sum of Kshs. 8,392,721.57 above plus costs of the suit awarded with interest from date of judgment.
p. 24Final award, costs and interest - final orders
The court finds the respondent was not a reasonable employer in concluding the grievant stole the stamps.
p. 22Reasonable employer test - failure of substantive justification
The lack of trail integrity in the respondent's procedures in handling the stamps and the unaccounted activities by 9 others persons besides Ndichu and the grievant and the lack of handover procedures at the safe makes the court to conclude there was no valid reason which existed for the employer to believe the grievant stole the stamps.
p. 21Burden of proving valid reason under section 43 of the Employment Act
However, by recalling Ndichu only from suspension and leaving out the grievant when they were accused of the same offense was an act of discrimination and tainted the process.
p. 22Discrimination in disciplinary process
It is over 3 years since his employment was terminated, hence the relief of reinstatement is not available pursuant to the provisions of section 12 of the Employment and Labour Relations Court Act
p. 22Reinstatement barred by three-year limit
Stay of 30 days granted.
p. 24Stay of execution

Issues in the judgment

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minor

Paragraph numbering in the judgment is duplicated/out of sequence (paragraphs numbered 55 and 56 appear twice, and the numbering jumps irregularly in the relief section)

minor

Internal date contradiction: the judgment elsewhere states the grievant's services were terminated on 22nd February 2021, but the claimant's submissions and the procedural findings state 2020 in places

minor

The Respondent's email on the chronology is dated '5th December 2024' in the submissions though the incident was in December 2020, an apparent typographical error in the judgment

minor

The penalty provision for the offence is inconsistently referred to as section 281 and section 280 of the Penal Code in the judgment

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 & Allied Workers v Kenya Breweries Limited (Cause E021 of 2023) [2025] KEELRC 3030 (KLR)", Case Analysis (2025). Not stated in the judgment (Employment and Labour Relations Court cause, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3030/eng@2025-10-30

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