Kenya Engineering Workers Union v Ashut Engineers Limited

c. The Honourable Court to find the Respondent action of the grievant herein termination to be unfair and unprocedural and order the grievant reinstatement unconditionally without loss of any benefit. d. In the alternative the Honourable Court do issue an Order against the Respondent herein to pay the grievant his terminal benefits as hereunder: i. 2 months pay in lieu of Notice 2 x 30 x 839 = Kshs.50,340/= ii. Service gratuity (14 years) 21 x 14 x 30 x 839 ÷ 30 = Kshs.458,094/= iii. Accrued leaves (14 years) 14 x 26 x 839 = Kshs. 305,396/= iv. 14 days worked 14 x 839 = Kshs.11,786/= v. 12 months compensation 12 x 30 x 839 = Kshs. 302,040/= Total: Kshs.1,127,656/= vi. Certificate of service. Claimant’s case 2. The Claimant union avers that Mr. Bernard Akhonya, the grievant, was employed by the Respondent in February 2006 as an assembler, earning a daily wage of Kshs.839/= for 14 years, contrary to the CBA and labour laws. 3. The Claimant union avers that the grievant maintained a clean record with no warnings. In May NAIROBI CAUSE NO. E176 OF 2023 JUDGMENT 2 | P A G E

page 2 of 20

2020, he and colleagues were assigned duties at Burns Manufacturing, Ruiru, but shortly thereafter, he was issued a show-cause letter on 27th May 2020, which he responded to, denying all allegations. A disciplinary committee meeting found that the grievant and his colleague had not provided contacts, worked without a construction plan, and were inadequately supervised, leading to client dissatisfaction. The Human Resource Manager initially recommended a working letter, but a subsequent meeting led to his summary dismissal on 24th June 2020, despite Burns Manufacturing exonerating him and blaming management. 4. The Claimant union argues that keeping the grievant on casual terms violated Clause 3 of the CBA, section 42 of the Employment Act, 2007, and Articles 36 and 47 of the Constitution on fair labour practices and fair administrative action. 5. The Claimant union contends that the Respondent’s actions were unlawful, procedurally flawed, and substantively unjustified. Respondent’s memorandum of response 6. The Respondent opposed the memorandum of claim vide memorandum of response dated 24th August 2023. NAIROBI CAUSE NO. E176 OF 2023 JUDGMENT 3 | P A G E

page 3 of 20

7. The Respondent denies most of the allegations raised in the Claimant’s Memorandum of Claim, save for admitting that the grievant was employed in February 2006 as a general worker earning a daily wage of Kshs.839/=. 8. The Respondent contends that on 22nd to 23rd May 2020, the grievant was assigned duties at Burn Manufacturing, but on 25th May 2020, the client complained about his conduct. 9. The Respondent avers that the grievant was issued with a show-cause letter on 27th May 2020, responded on 29th May 2020, and subsequently taken through a disciplinary hearing on 13th June 2020, after which he was summarily dismissed on 24th June 2020. 10.The Respondent asserts that due process was followed under the Employment Act, that final dues were tabulated and a cheque issued on 10th July 2020 though uncollected, and that the dismissal was lawful and procedural. 11. The Respondent disputes the Claimant’s submissions under section 42 of the Employment Act and constitutional provisions, insisting the termination was justified. NAIROBI CAUSE NO. E176 OF 2023 JUDGMENT 4 | P A G E

page 4 of 20

12. The Respondent therefore contests the reliefs sought, including reinstatement, notice pay, gratuity, accrued leave, and compensation, arguing the claim is frivolous and should be dismissed with costs. Claimant’s evidence in court 13. CW1, Bernard Akhonya, adopted his written statement dated 28th February 2023 together with the bundle of documents dated even date as his evidence in chief. 14. CW1 testified that he worked for the Respondent as a machine assembler from 2006 to 2019. He explained that there were no clearly defined roles among employees and that, on the day in question, there was no supervisor present. He stated that his termination arose from an accusation that he reported to work late, yet he had gone to the Respondent’s Ruiru branch to collect materials for assembly work at Burns. CW1 maintained that he had recorded his arrival at the gate, collected the required items, and proceeded to the site as instructed. He was accused of being late by one and a half hours, but insisted that the delay was due to official duties. He further testified that he was not NAIROBI CAUSE NO. E176 OF 2023 JUDGMENT 5 | P A G E

page 5 of 20

issued a summary dismissal letter and refused to sign any termination documents. 15. CW1, in cross-examination, stated that he was initially paid weekly and later twice a month, with advances capped at Kshs.7,000/=. He recalled that on 22nd and 23rd May 2020, he was assigned to Burns, which later sent an email to Ashut accusing him of rudeness, poor work ethic, lack of leadership, and refusal to cooperate, allegations he denied. He clarified that he never refused to wear protective gear, was not late to work, and noted that his colleagues were not similarly accused. On 22nd May 2020, he was issued with a show cause letter, responded to it, and subsequently received a warning letter, which was not produced in court. He confirmed attending a disciplinary hearing with a shop steward present, after which he was served with a summary dismissal letter that he declined to sign. He added that he usually took leave in December when the company closed, and between 11th and 25th June 2020, he received an advance, though he could not recall the amount. 16. He further testified that when he went to collect his final dues, he was informed he would not be NAIROBI CAUSE NO. E176 OF 2023 JUDGMENT 6 | P A G E

page 6 of 20

paid his salary, though his NSSF contributions had been remitted. 17. In re-examination, CW1 reiterated that he was not late on the material day as he had gone to collect items from Ashut, that he was issued a show cause letter but not given a copy, and that his union was not served with the same. He emphasized that he was a permanent employee. Respondent’s evidence in court 18.RW1, Sheila Kapsekei, the Respondent’s Human Resource Business Partner, adopted her witness statement dated 21st August 2025 together with the bundle of documents dated 24th August 2023 marked as exhibits nos. 1 to 9 as her evidence in chief. 19.In cross-examination, RW1 testified that CW1 was engaged as a general worker under supervision, and at the time of the Burns incident there was a supervisor present. She stated that CW1 had been provided with protective gear and that she personally sent him an email, while Burns also communicated that they no longer wanted CW1 to work for them. RW1 emphasized that CW1 was employed on a need basis as a casual worker, paid every two weeks, and had no appointment letter NAIROBI CAUSE NO. E176 OF 2023 JUDGMENT 7 | P A G E

page 7 of 20

despite working intermittently since February 2006. She added that other employees performed satisfactorily, but CW1 misbehaved and ignored instructions, a fact confirmed by colleagues during the disciplinary hearing. 20. RW1 clarified in re-examination that the grievant was paid fortnightly at daily rates, underscoring his casual employment status. Claimant’s submissions 21.The Claimant union submitted that the summary dismissal of the grievant, Mr. Bernard Akhonya, was unlawful, unfair, and unprocedural. The Claimant union argued that although the Respondent treated him as a casual worker, he was in fact on an implied permanent contract under Clause 3 of the CBA, which limits probation to three months, and under section 42 of the Employment Act, 2007. 22.The Claimant relied on Articles 36 and 47 of the Constitution, guaranteeing fair labour practices and fair administrative action, and Kenya Shoe & Leather Workers Union v Bata Shoe Company (K) Limited [2018] KEELRC 820 (KLR), where the court held that unionisable employees are entitled to permanent and pensionable terms under a CBA. The Claimant made reference to Cause No. 707 of NAIROBI CAUSE NO. E176 OF 2023 JUDGMENT 8 | P A G E

page 8 of 20

2010, Kenya Union of Entertainment and Music Industry v Kenya Cultural Centre, affirming that failure to implement negotiated CBA terms amounts to breach of contract, and Kenya Engineering Workers Union v Farm Engineering Industries Ltd [2022] KEELRC 4005 (KLR), where service gratuity was upheld despite NSSF contributions. 23. On the alleged misconduct, the Claimant union contends that the grievant was a general labourer, not a supervisor, and could not be blamed for management’s failure to provide tools or proper oversight, as even the client’s email acknowledged the need for an engineering supervisor. The Claimant union further argued discrimination, since no action was taken against his colleagues or the absent supervisor, yet the grievant was singled out. 24. Consequently, the Claimant union urged the court to find that the dismissal lacked both substantive justification and procedural fairness, and to award reinstatement or, in the alternative, compensation including notice pay, gratuity, accrued leave, days worked, and 12 months’ compensation, amounting to Kshs.597,368/=, plus costs. Respondent’s submissions NAIROBI CAUSE NO. E176 OF 2023 JUDGMENT 9 | P A G E

page 9 of 20

25. The Respondent submitted that the Claimant was neither discriminated against nor unfairly terminated, and that the dismissal was lawful, procedurally fair, and substantively justified. The Respondent relied on sections 41, 43, 45, and 47(5) of the Employment Act, 2007, together with sections 108 and 109 of the Evidence Act, to emphasize that the burden of proof lies with the Claimant to establish unfair termination or discrimination. 26. The Respondent relied on the cases of Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 Others [2014] KECA 403 (KLR), the court held that employers retain the prerogative to discipline and restructure their workforce, provided they comply with statutory safeguards. In British American Insurance Co. Ltd v Njau [2004] eKLR, the Court emphasized judicial restraint, holding that managerial discretion should not be interfered with unless exercised unlawfully or unfairly. 27. In Kenya Revenue Authority v Gitahi & 2 Others [2019] KECA 300 (KLR), the court underscored that parties must discharge the evidentiary burden under sections 108 and 109 of NAIROBI CAUSE NO. E176 OF 2023 JUDGMENT 10 | P A G E

page 10 of 20

the Evidence Act, and failure to do so is fatal to a claim. In Odinga & 5 OTHERS v Independent Electoral and Boundaries Commission & 3 Others [2013] KESC 6 (KLR), the Supreme Court clarified that constitutional principles of fairness and evidentiary thresholds require claims to be proved by credible evidence, not speculation. 28. In Charles Musungu Odana v Kenya Ports Authority [2019] KEELRC 2206 (KLR), the court reaffirmed that fair labour practices are a constitutional right, but employees must demonstrate actual violation to succeed. 29. In Gold Crown Foods (EPZ) Ltd v Esther Wasili Kisau [2022] KEELRC 621 (KLR) the court stated as follows: “The court holds that an employer enjoys the prerogative to impose one or other punishment and unless considerations that may vitiate the manner of exercise of that prerogative in individual cases is pleaded and established (such as proportionality, uniformity or discrimination considerations.) the court will not interfere with the employer’s prerogative…It might be that another employer would not have summarily dismissed the respondent and NAIROBI CAUSE NO. E176 OF 2023 JUDGMENT 11 | P A G E

page 11 of 20

imposed a warning as proposed and yet, the court finds that there is no established reason to substitute the employer’s discretion with that of the court.” 30. In Reeves v Sanderson Plumbing Products, 530 US. 138 141(June 12th 2000) U.S. Supreme Court held that discrimination claims must be supported by credible evidence, and once an employee establishes a prima facie case, the employer must provide legitimate reasons for dismissal. 31.On reliefs, the Respondent urges dismissal of all the Claimant’s prayers, including compensation for unfair termination, gratuity, notice pay, leave arrears, overtime, public holiday pay, underpayments, unremitted NSSF deductions, and issuance of a certificate of service, arguing that no statutory or contractual entitlement arises. The Respondent therefore seek dismissal of the entire claim with costs. Analysis and determination 32. The court has considered the pleadings herein together with the submissions on record; the issue for determination is as follows: NAIROBI CAUSE NO. E176 OF 2023 JUDGMENT 12 | P A G E

page 12 of 20

a.Whether the grievant was unlawful and unfairly terminated b.Whether the grievant is entitled to the relief sought c. Who is entitled to the costs of the suit. 33.Section 41 of the Employment Act provides as follows: “Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation. Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1) make.” NAIROBI CAUSE NO. E176 OF 2023 JUDGMENT 13 | P A G E

page 13 of 20

34. Section 43 of the Employment Act provides as follows: “In any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45. The reason or reasons for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist, and which caused the employer to terminate the services of the employee.” 35. In Walter Ogal Anuro V Teachers Service Commission [2013] KEELRC 386 (KLR) the court stated as follows: “. . . For a termination to pass the fairness test, it must be shown that there was not only substantive justification for the termination but also procedural fairness. Substantive justification has to do with establishment of a valid reason for the termination while procedural fairness addresses the procedure adopted by the employer to effect the termination.” NAIROBI CAUSE NO. E176 OF 2023 JUDGMENT 14 | P A G E

page 14 of 20

36. In this instant case, the Claimant union maintains that the grievant had a clean record with no prior warnings. He was assigned duties at Burns Manufacturing in May 2020, issued a show-cause letter on 27th May 2020, which he denied, and was later faulted by a disciplinary committee for failing to provide contacts, working without a construction plan, and being inadequately supervised. He was issued a notice to show-cause letter dated 25th May 2020. Although he responded and then attended a disciplinary hearing on 13th June 2020, there is no record of any witness who represented the Grievant as provided in Section 41 of the Employment Act. 37. Although the Human Resource Manager initially recommended a working letter, Grievant was summarily dismissed on 24th June 2020, despite Burns Manufacturing exonerating him and attributing the shortcomings to management. The Respondent, however, contends that on 22nd to 23rd May 2020 the Grievant’s conduct prompted a client’s complaint, leading to a show-cause letter on 27th May 2020, his response on 29th May, and a disciplinary hearing on 13th June 2020. The Respondent argues that due process under the NAIROBI CAUSE NO. E176 OF 2023 JUDGMENT 15 | P A G E

page 15 of 20

Employment Act was followed, that final dues were tabulated and a cheque prepared on 10th July 2020, though not collected and that the dismissal was lawful, procedural, and justified. 38. The Respondent did not accord the Grievant opportunity to defend himself and hence violating Article 50 of the Constitution and Sections 41 of the Employment Act. Looking at the minutes present, it only showed the unsatisfactory performance of the employees in general. Collins the supervisor said the client Burns picked out Bernard and said he should never go back to their site should there be another opportunity. There was no other evidence against the Grievant except the “unreported” complaint by Burns. 39. The court’s considered opinion is that the reasons used to dismiss the Grievant were not valid and sound. This was in contravention of Section 45(1) of the Employment Act which provides as follows: “No employer shall terminate the employment of an employee unfairly.” 40. Also, the disciplinary hearing was flawed as Grievant only gave his side of the story and was not NAIROBI CAUSE NO. E176 OF 2023 JUDGMENT 16 | P A G E

page 16 of 20

asked to call a witness to represent him. The court was not also informed the Grievant verified the proceedings of the disciplinary hearing and neither did he sign the minutes. The meeting reported that the employees all agreed to be represented by the shop steward representative. The meeting took place on 13th June 2020 and notice to show cause had been sent on 27th May 2020. 41. As for proceedings of disciplinary hearing the process is mandatory and failure of an employer to follow the same renders the termination irregular. The said Section 41 of the Employment Act is already cited hereinbefore. 42. In numerous cases on employment sector provide that the employer cannot simply terminate an employee even if there is gross misconduct. The employee must be heard in a fair process. In the case of PIUS MACHAFU ISINDU -VS- LAVINGTON SECURITY LTD (2017) eKLR 16 TEG the Court of Appeal held that an employer bears the burden of proving valid reasons for a termination and that the procedure followed should be fair under Section 43 and 45 of the Employment Act. 43. The court having considered the pleadings and submissions as well as case laws is satisfied the NAIROBI CAUSE NO. E176 OF 2023 JUDGMENT 17 | P A G E

page 17 of 20

Grievant proved a case of unlawful termination. Hence judgment is entered in his favour. 44. The court having entered judgment in favour of the Claimant against the Respondent awards the following to the Grievant -: a. 1 months pay in lieu of Notice 839 x 30 = Kshs.25,170/= b. 8 months compensation 12 x 30 x 839 = Kshs.201,360/= c. Gratuity as per the Collective Bargaining Agreement (Paragraph 31). d. The other prayer of accrued leave, is not proved and is declined. e. Days worked and unpaid are awarded Kshs.11,786/=. 45. The Claimant will have costs of the suits and total decretal sum is Kshs.238,316/=. Orders accordingly. Dated, Signed and Delivered virtually at Nakuru this 8th Day of July, 2026. ANNA NGIBUINI MWAURE JUDGE ORDER NAIROBI CAUSE NO. E176 OF 2023 JUDGMENT 18 | P A G E

page 18 of 20

In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which proportionate is and to facilitate affordable just, expeditious, resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE NAIROBI CAUSE NO. E176 OF 2023 JUDGMENT 19 | P A G E

page 19 of 20

NAIROBI CAUSE NO. E176 OF 2023 JUDGMENT 20 | P A G E

page 20 of 20