Chege v AAA Growers Limited

Claimant’s Case 2. The Claimant avers that the Respondent employed him in January 2023 as a Farm Manager at Simba Farm, Avocado Orchard, and served diligently until 9th April 2025 when he received his rst show‑cause letter alleging poor performance. 3. The Claimant avers that he responded within the prescribed time, asserting that he had faithfully executed his duties and that the allegations were unfounded. Expecting a fair disciplinary hearing, he awaited further communication, but on 23rd April 2025 he was abruptly summoned and handed a termination letter without prior notice or opportunity to comprehend its contents. 4. Under pressure and with limited options, the Claimant avers that he reluctantly signed the letter and was informed that his services were no longer required, an act that clearly breached procedural fairness and due process under employment law. 5. Following the termination, the Claimant was placed on leave until 23rd May 2025 but was not compensated for 28 days of accrued leave amounting to Kshs.331,333.30/=. He further alleges persistent harassment by the Respondent’s directors, who insulted and demeaned him before guests, violating Article 28 of the Constitution. 6. Despite the hostile environment, he continued working due to limited employment opportunities. At age 48, his dismissal caused signicant loss of future earnings, estimated at Kshs.51,120,000/= for the remaining 12 years to retirement. 7. The Claimant maintains that his termination was unlawful and procedurally unfair, as no disciplinary hearing followed his response to the show cause letter. He was never issued any prior warning, and the letter itself conrms this. The Respondent also failed to follow its own dismissal procedure, which required multiple warnings and a fair hearing. His two‑year contract, commencing in December 2023, still had six months remaining at the time of dismissal. Respondent’s Memorandum of Reply 8. The Respondent opposed the claim vide its memorandum of reply led on 29th July 2025. 9. The Respondent denies the Claimant’s allegations of unfair termination and claries that his employment began on 15th December 2023, not January 2023. 10. The Respondent emphasizes that the Claimant, as Avocado Orchard Farm Manager, was entrusted with high‑level responsibilities and agreed performance indicators but consistently failed to meet targets despite support and consultations. After several performance review meetings and an unsatisfactory response to a show‑cause letter dated 9th April 2025, his employment was terminated on 23rd May 2025. 11. The Respondent disputes claims of harassment, inated compensation, and entitlement to retirement‑based damages, noting that the contract was for two years with only six months remaining. 12. The Respondent acknowledges owing salary for 23 days worked amounting to Kshs.222,581/= and accrued leave of Kshs.80,000/= but denies all other claims, insisting the termination was lawful and procedurally fair, and prays that the suit be dismissed with costs. Claimant’s reply to the Respondent’s Memorandum in Reply 13. The Claimant led a reply to the Respondent’s memorandum in reply dated 13th August 2025. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2572/eng@2026-09-25 2

page 2 of 8

14. In his reply to the Respondent’s memorandum, the Claimant reiterates the contents of his Statement of Claim and dismisses the Respondent’s denials. 15. The Claimant maintains that he was employed in January 2023, and he diligently met performance targets, and provided a satisfactory response to the show‑cause letter, which the Respondent failed to refute or consider. 16. The Claimant emphasizes that no disciplinary hearing was conducted, breaching both substantive and procedural fairness under the Employment Act. 17. The Claimant insists that his salary was Kshs.355,000/=, disputes the Respondent’s computation of leave days, and asserts entitlement to payment for the remainder of his contract, which he argued extended to June 2026. 18. The Claimant contends that his unlawful termination entitles him to the reliefs sought, including salary arrears, leave pay, compensation, and damages, and urges the court to grant his prayers. Claimant’s Evidence in Court 19. CW1, the Claimant, adopted his witness statement dated 27th October 2025, list of documents dated 14th June 2026 produced as exhibits 1 to 5 as his evidence in chief. 20. CW1 testied that he had two contracts set to expire on 15th December 2025 with an expectation of renewal. He stated that although the Respondent’s documents exhibit 15 and 19, he was blamed for underproduction of avocado, he was not an employee at the time. He conrmed that he was issued a show‑cause letter on 18th April 2025, responded to it, but was never invited to a disciplinary hearing. Instead, he received a termination letter dated 23rd April 2025, which did not indicate whether his explanation had been considered, and he was not paid terminal dues. 21. In cross‑examination, CW1 acknowledged that he was employed as an Avocado Orchard Farm Manager, a senior position reporting to the General Manager. His job description included performance criteria (KPIs) such as meeting production targets within a narrow margin of error. He noted that production records which exhibited 15 and 16 showed a sharp decline: from 30,350 tonnes in 2023 to 3,000 tonnes in 2025. He explained that pruning had been undertaken before his tenure and recommended staggered pruning, drainage repairs, and uprooting diseased trees, but management ignored his advice. He admitted that his reports were stored on company systems and not produced in court. He also alleged harassment by directors but did not call witnesses or report to police. 22. He further stated that although his termination letter allowed him to work until 23rd May 2025, he was not placed on leave but continued reporting to the farm. He claimed 40 accrued leave days, of which only 8 were acknowledged by the Respondent, and insisted he was entitled to payment for the full balance. He also conrmed receipt of a certicate of service. 23. In re‑examination, CW1 reiterated that his recommendations to improve the farm were disregarded, pruning had already been done across most blocks before his tenure, and he joined to remedy the situation. He emphasized that if his advice had been followed, production would have improved. He added that although directors insulted him, he did not report the matter as he preferred peace, and only raised the issue after termination. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2572/eng@2026-09-25 3

page 3 of 8

Respondent’s Evidence in Court 24. RW1, Nathaniel Noti, the Respondent’s Human Resource Manager, adopted his witness statement dated 26th March 2026 together with the list of documents dated 19th September 2025 as exhibits 1 to 7 respectively as evidence in chief. 25. RW testied that CW1 was employed as a Farm Manager from 15th December 2023 until 23rd May 2025, and was terminated after failing to meet avocado production targets. RW1 stated that although CW1 responded to the show‑cause letter, his explanation was unsatisfactory, as heavy pruning only aected about 4 hectares out of 57, which could not account for the drastic drop in production from an expected 51,000 kgs to 3,000 kgs. 26. In cross‑examination, RW1 admitted he was a Human Resource practitioner, not an agriculturist, and had no independent documents proving CW1’s failure beyond what CW1 himself produced. He acknowledged that CW1 raised issues of pruning and lack of equipment in his response, but the Respondent did not reply, nor was CW1 invited to a disciplinary hearing. RW1 further conceded that the termination letter did not mention the right of appeal, though CW1’s contract provided for appeal to the Operations Director. He conrmed CW1 had served 17 months of a two‑year contract, leaving 7 months outstanding, and stated that some dues were paid though no proof was produced. 27. In re‑examination, RW1 emphasized that the separation was performance‑based rather than disciplinary, and that CW1’s response was considered but found unsatisfactory. He maintained that CW1 was aware of his right to appeal under the contract and therefore did not need to be expressly informed in the termination letter. 28. The court directed parties to put in their respective written submissions. Claimant’s Submissions 29. The Claimant submitted that he still maintains that his termination was both substantively and procedurally unfair. He argued that the avocado production challenges pre‑dated his employment and that his professional recommendations on pruning, drainage, and disease control were ignored. He stressed that no independent expert report was produced to counter his ndings, and the Respondent’s witness was a human resource ocer rather than an agricultural expert. The Claimant relied on sections 41, 43, 45, and 49(1)(c) of the Employment Act, which require notication, proof of valid reasons, fair procedure, and compensation for unfair dismissal. He further invoked sections 47 and 86 of the Employment Act, which guarantee access to court for complaints of unfair termination, and sections 4 and 12 of the Employment and Labour Relations Court Act, which establish the ELRC and confer exclusive jurisdiction over employment disputes. The Claimant also relied on Article 162(2)(a) of the Constitution, which mandates Parliament to establish courts with the status of the High Court to hear employment and labour relations disputes. Supporting his position, the Claimant relied on the case of Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334 on the burden of proof. 30. The Claimant therefore seeks reliefs totalling Kshs. 7,076,333.30/=, including leave pay, salary for days worked, six months’ salary for the remainder of his contract, and compensation under section 49(1) (c) of the Employment Act, together with costs and interest. Respondent’s Submissions 31. The Respondent submitted that the Claimant’s dismissal was lawful, fair, and procedurally sound. The Respondent argued that as Avocado Orchard Farm Manager, the Claimant held a senior role with measurable performance targets, yet production collapsed by nearly 99% under his tenure. Relying on https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2572/eng@2026-09-25 4

page 4 of 8

sections 41, 43, and 45 of the Employment Act, the Respondent maintains that poor performance is a valid ground for termination, and that the Claimant was served with a notice to show cause, responded in writing, and his explanation was duly considered. To support this, the Respondent relied on Postal Corporation of Kenya v Tanui [2019] KECA 489 (KLR), Kenya Revenue Authority v Gitahi & 2 others [2019] KECA 300 (KLR), and Mukala v OI Tukai Lodge Ltd [2013] KEIC 634 (KLR), which arm that sustained underperformance can justify termination. 32. On procedure, the Respondent further relied on the cases of CFC Stanbic Bank Limited v Danson Mwashako Mwakuwona [2015] KECA 919 (KLR) and CFC Stanbic Bank Limited v Danson Mwashako Mwakuwona [2015] KECA 919 (KLR), stressing that fairness requires a reasonable opportunity to be heard, not a trial‑like process. The Respondent denies harassment claims, citing lack of corroboration and referencing Adyang v Wrigley Company (EA) Ltd [2024] KEELRC 1249, which emphasized the need to use internal grievance mechanisms before raising complaints in court. 33. Finally, the Respondent disputes claims for compensation and unpaid salary, relying on Hahn v Singh [1985] KLR 716 to argue that special damages must be strictly proved, and urges dismissal of the suit with costs. Analysis and Determination 34. 35. The court has considered the pleadings and the rival submissions on record: the issues for determination are as follows: a. Whether the Respondent substantively justied and procedurally terminated the Claimant. b. If (a) above is in the armative, whether the Claimant is entitled to the relief sought. c. Who should bear the costs? 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 oor 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.” 36. 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. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2572/eng@2026-09-25 5

page 5 of 8

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.” 37. Section 45(2) of the Employment Act further provides as follows: “ A termination of employment by an employer is unfair if the employer fails to prove— (a) that the reason for the termination is valid; (b) that the reason for the termination is a fair reason— (c) 38. (i) related to the employees conduct, capacity or compatibility; or (ii) based on the operational requirements of the employer; and that the employment was terminated in accordance with fair procedure.” Section 47(5) of the Employment Act provides as follows: “ For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer.” 39. For termination of employment to be fair, the employer must demonstrate both substantive justication and adherence to procedural requirements. This principle has been consistently armed in case law, including Mary Chemweno Kiptui v Kenya Pipeline Company Limited [2014] KEELRC 905 (KLR), Loice Otieno v Kenya Commercial Bank Ltd [2013] KEELRC 271 (KLR), and Walter Ogal Anuro v Teachers Service Commission [2013] KEELRC 386 (KLR), where the courts held that termination is unfair if the employer fails to prove valid reasons and does not follow due process. 40. In this instant case, the Claimant asserts he was employed in January 2023 as Farm Manager at Simba Farm and served diligently until April 2025 when he was issued a show‑cause letter, responded satisfactorily, but was terminated without a disciplinary hearing, breaching substantive and procedural fairness under the Employment Act. He alleges harassment, non‑payment of accrued leave worth Kshs.331,333.30/=, and loss of future earnings, while maintaining his salary was Kshs.355,000/= and that his contract extended to June 2026. The Respondent denies unfair termination, claries employment began in December 2023, cites poor performance as justication, and acknowledges only partial dues salary for 23 days and Kshs.80,000/= leave pay. In reply, the Claimant reiterates his position, disputes the Respondent’s gures, and insists he is entitled to arrears, leave pay, compensation, and damages. 41. The Respondent, in violation of sections 41, 43, and 45(2) of the Employment Act, and that and section 47(5) of the Employment Act to justify the termination. The show‑cause letter dated 8th April 2025 cited unsatisfactory performance and failure to meet targets, yet no fair hearing was conducted before dismissal. The Court further notes that the poor yield following pruning was not attributable to the Claimant. In Mukala v Ol Tukai Lodge Ltd(supra), the court held that without an objective performance appraisal system, termination for poor performance cannot be deemed fair. The Respondent failed to apply any evaluation criteria or aord the Claimant a reasonable opportunity to improve, rendering the process both procedurally and substantively unfair. Consequently, the Court https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2572/eng@2026-09-25 6

page 6 of 8

holds that the Claimant was unfairly terminated and is entitled to compensation, while the allegations of harassment were unproven and therefore dismissed. 42. The Respondent avers he terminated the Claimant due to prolonged underperformance. They said they relied on his contract to terminate him. The Claimant was issued with a show-cause letter and he responded to the same by his letter which he says he responded within the prescribed time. The Respondent however issued him with a termination letter without subjecting him to disciplinary hearing which is a mandatory requirement under the law. 43. The cited case of Jane Samba Mukala Vs Ol Tukal Lodge Ltd(Supra) the Claimant was not taken through the required disciplinary process and was not heard before dismissal. 44. In conclusion where the reason for termination of employment is poor performance the employer must demonstrate what standard was expected and how it was measured. There must be grounds to show how the employee failed to meet the standards and what opportunity he was given to improve. 45. It is therefore not enough for an employee to be informed simply that he is terminated for poor performance. There must be evidence of substantive justication and procedural hearing. The Respondent in this case failed to prove the twin tests of both substantive justication and procedural fairness. In the circumstances, the court nds the Claimant has proved a case for unlawful termination and so judgment is entered in his favour. 46. Since the Court has found that the Claimant was a. unlawfully and unfairly terminated, he is entitled to 28 days of leave under section 28 of the Employment Act, amounting to Kshs.331,333.30/=, as there was no evidence he took leave during his employment. b. Salary for days worked totalling Kshs.222,581/=. c. For compensation, the court awards the equivalent of two months’ salary for unfair termination under section 49(1)(c) of the Employment Act in view of the period he worked for the Respondent calculated totalling Kshs.700,000/=. 47. The court declines to award salary for the remaining six months of the contract and general damages for harassment, as these were not proved and ideally, one is not entitled to payment for period not served. 48. The Respondent is directed to issue the Claimant with a certicate of service pursuant to section 51 of the Employment Act within 30 days from today’s date. 49. The Claimant shall have the costs of the claim and total award therefore is Kshs.1,253,914/30 with interest at 14% per annum from date of judgment till full payment. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 25TH DAY OF SEPTEMBER 2026. ANNA NGIBUINI MWAURE JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2572/eng@2026-09-25 7

page 7 of 8

Order 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 is to facilitate just, expeditious, proportionate and aordable resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2572/eng@2026-09-25 8

page 8 of 8