Johannes Petrus Martinus Van Der Voort v HBM Flowers Kenya Limited

g) NHIF and SHIF deductions not remitted. h) 11 days worked but not paid for August 2025: Kshs 414,794.00. i) Housing allowance at 15% of salary from February 2024 to August 2025. j) Aggravated and exemplary damages for malice, oppression, and breach of statutory duties. k) Interest on all sums at court rates from the date of termination until payment in full. l) Costs of the suit. m) Any other relief this Honorable Court deems fit and just to grant. 2. The Respondent opposed the Claim through a Statement of Response dated 13 th October 2025. While admitting that the Claimant was engaged as a Farm Manager, the Respondent contends that his initial engagement was on a consultancy basis for a period of one (1) year, subject to an agreed evaluation of his progress and performance after six (6) months. According to the Respondent, the Claimant continued to render services as a consultant for a period of eight (8) months, from 1st January 2024 to August 2024. 2

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3. The Respondent further avers that midway through the consultancy period, the Claimant was onboarded as an employee with effect from 1 st September 2024 and remained in employment until his termination on 11th August 2025. 4. It is the Respondent’s case that during the course of his employment, the Claimant developed a lacklustre attitude towards the discharge of his duties, which allegedly resulted in substantial losses to the Respondent. The Respondent contends that this prompted it to issue the Claimant with a Notice to Show Cause and subsequently subject him to a disciplinary process, following which his employment was terminated on 11th August 2025. 5. The Respondent further avers that the Claimant was furnished with his pay slips and earned a gross monthly salary of EUR 7,500, which was subject to statutory deductions, resulting in a net amount of EUR 4,920 being remitted to his personal account. 6. The Respondent contends that the contract relied upon by the Claimant is ambiguous and contains voidable clauses. It further asserts that the contract lacks clarity on certain terms and conditions of employment and, consequently, cannot be relied upon in its entirety. 3

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7. According to the Respondent, following the termination of the Claimant’s employment on 11th August 2025, it tabulated his final dues. The Claimant, however, declined to sign for or accept the said dues. 8. In light of the foregoing, the Respondent has urged the Court to dismiss the Claimant’s claim with costs. 9. In rejoinder, the Claimant filed a Reply to the Respondent’s Statement of Response, in which he reiterated the contents of his Statement of Claim and denied the Respondent’s assertions. 10.The matter thereafter proceeded to hearing on diverse dates, during which both parties adduced oral evidence in support of their respective cases. Claimant’s Case 11.The Claimant testified in support of his case as CW1. At the outset, he adopted his Memorandum of Claim, witness statement, and the list and bundle of documents filed on his behalf as his evidence in chief. 12.It was the Claimant’s testimony that he earned a gross monthly salary of EUR 7,500 and was entitled to one (1) month’s leave annually. 4

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13.According to the Claimant, he discharged his duties diligently, loyally and with due skill and care and had never been subjected to disciplinary action or issued with any warning letter. He stated that this changed on 11 th July 2025, when he was issued with a Notice to Show Cause while on leave, alleging gross negligence and financial loss. 14.The Claimant testified that after responding to the Notice to Show Cause, the Respondent’s Director instructed him, through a WhatsApp message, not to report back to work until he had met with him. 15.He further testified that, pending the meeting with the Respondent’s Director and without prior notice or a hearing, the Respondent blocked his access to his official work email and removed him from the workplace WhatsApp group, thereby effectively cutting him off from work-related communication. 16.The Claimant further stated that on 6th August 2025, he was invited to a meeting at Dormans, Nanyuki, scheduled for 7th August 2025 at 5:00 p.m. The venue was subsequently changed to Shop 14 and the meeting time brought forward to 4:00 p.m. Upon making further inquiries regarding the nature of the meeting, he was informed, through a text message, that the meeting was in fact a disciplinary hearing. 5

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17.It was the Claimant’s contention that the notice of the disciplinary hearing was unreasonably short, having been given less than 24 hours before the hearing. He maintained that this left him with insufficient time to prepare his defence or secure the attendance of a colleague to accompany him, particularly as he had already been denied access to his work email and removed from the workplace WhatsApp group. 18.The Claimant further testified that, by a letter dated 7 th August 2025, he requested additional time to access relevant information and secure representation. The Respondent, however, declined the request and proceeded with the disciplinary hearing. According to the Claimant, the allegations initially framed as gross negligence subsequently shifted to allegations of loss of trust and breach of his employment obligations. 19.He further contended that the disciplinary panel comprised persons who were themselves directly implicated in the allegations of gross negligence. He also maintained that the shipments said to have occasioned the alleged losses had been duly approved and cleared by KEPHIS and the relevant Dutch authorities. 20.The Claimant further testified that he was entitled to a salary increment and bonus following performance evaluations scheduled for July and December 2024, based on the total number of stems exported. He stated that the 6

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evaluations yielded positive results but that he nevertheless received neither the salary increments nor the bonuses. 21.According to the Claimant, the termination of his employment adversely affected his reputation and damaged his character and professional standing, thereby diminishing his prospects of securing employment with other flower companies. 22.The Claimant further testified that following the termination of his employment, he reviewed his records relating to statutory deductions and noted that, although deductions had been made from his salary during his tenure, the Respondent had failed to remit his NHIF/SHIF contributions as required by law. He stated that the SHIF records reflected only one remittance, for March 2025. 23.The Claimant further contended that upon termination of his employment, he was not paid his salary for the 11 days worked in August 2025 or in respect of three (3) accrued but unutilised leave days. He also stated that throughout his employment, the Respondent neither provided him with housing nor paid him a housing allowance in lieu thereof. Respondent’s Case 7

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24.The Respondent called oral evidence through four (4) witnesses, namely Stephen Owiti Obara, David Mwanthi Nzioma, Vincent Everardus Van Baal and Boy Van Baal, who testified as RW1, RW2, RW3 and RW4 respectively. 25.Stephen Owiti Obara (RW1) was the first witness to testify on behalf of the Respondent. He introduced himself as the Human Resource Manager of Huduma Services Limited, a company contracted by the Respondent to provide payroll and human resource advisory services, including advice on disciplinary matters. RW1 adopted his witness statement as his evidence in chief and produced the Respondent’s list and bundle of documents as exhibits before the Court. 26.RW1 testified that he knew the Claimant both as a consultant and subsequently as an employee of the Respondent. He stated that between January 2024 and August 2024, the Claimant rendered services to the Respondent as a Farm Manager on a consultancy basis and issued invoices to the Respondent through Timau Seedlings Limited. He further stated that the Claimant was subsequently onboarded as an employee, still in the position of Farm Manager, with effect from 1st September 2024 until his termination on 11th August 2025. 8

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27.According to RW1, the contract dated 1st January 2024 and the accompanying addendum dated 29th February 2024 constituted a consultancy agreement and not a contract of employment. 28.RW1 further testified that, since the communication regarding the Claimant’s onboarding onto the payroll was made in September 2024, the Claimant’s employment commenced in that month. 29.He stated that, pursuant to Clause 2.8.1 of the Respondent’s company policy, an employee becomes entitled to 21 days of annual leave upon completion of 12 months’ service, accruing at the rate of 1.75 days per month. 30.It was RW1’s testimony that the disciplinary process against the Claimant was initiated by the Respondent’s management and that his own involvement was limited to providing human resource advisory services whenever required. 31.RW1 stated that, acting on the instructions of the Respondent’s management, he prepared and issued the Notice to Show Cause dated 11 th July 2025, to which the Claimant responded on 4th August 2025. 32.In RW1’s view, the Claimant’s response to the Notice to Show Cause did not adequately address the allegations raised against him and consequently warranted the convening of a disciplinary hearing. 9

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33.RW1 testified that the disciplinary hearing was duly constituted and was sufficiently formal to proceed. He added that the Claimant waived his right to be accompanied by a person of his choice. 34.RW1 further testified that following the disciplinary hearing, the minutes were shared with the Claimant through his email. The Claimant thereafter signed and returned the minutes. 35.RW1 further stated that the Claimant failed to implement the strategic crop plan referred to as Scenario 3.1. According to him, the failure to implement the plan resulted in substantial losses to the Respondent and formed the basis for the Claimant’s termination. 36.He explained that the strategic crop plan included various initiatives, among them the uprooting of strawberries and their replacement with flowers, as well as the planting of eucalyptus, which, according to him, had the potential to produce multiple stems. 37.RW1 further testified that the Claimant failed to implement the pistachio tree project, which, in his view, had significant implications for the Respondent’s production. 10

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38.RW1 maintained that the Claimant’s unsatisfactory performance ultimately resulted in the issuance of the notice to show cause. 39.He further stated that the Claimant had been required to explain why he had failed to implement the strategic crop plan. According to RW1, the Claimant’s response was selective and failed to address the specific issues raised. He testified that the response demonstrated that the Claimant had become disengaged from his responsibilities, thereby precipitating the disciplinary process. 40.RW1 further testified that the Respondent duly remitted all statutory deductions made from the Claimant’s salary. He stated that the NHIF and SHIF records demonstrated that the deductions in respect of the Claimant had been duly remitted and acknowledged by the relevant receiving authority, contrary to the Claimant’s allegations. 41.David Mwanthi Nzioma (RW2) identified himself as the Assistant Farm Manager of the Respondent, a position he had held since 6 th May 2025. Similarly, he adopted his witness statement as his evidence in chief. 11

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42.RW2 testified that during the Claimant’s tenure, substantial portions of the farm remained unutilised. He stated that following the Claimant’s departure, he put 13 hectares of the farm into use, revived the eucalyptus project and, according to him, the project has since generated significant profits. 43.He further testified that the strawberry project had been unsuccessful and was consequently uprooted to pave the way for the Kiwi Mellow project, which he stated had since become successful. According to RW2, approximately 26,000 strawberry seedlings had been destroyed because they could not be sold in the market. 44.RW2 further stated that during the Claimant’s tenure as Farm Manager, there was inadequate direction and guidance from him in the management of the farm, which he attributed to the Claimant’s approach to his work. He testified that there were neither clear work plans nor budgets, thereby adversely affecting productivity. 45.He further testified that the Claimant failed to adequately address challenges arising at the farm. RW2 stated that weeding was not undertaken as required and that the Claimant also failed to address the problem of insect infestation affecting the farm. 12

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46.RW2 further testified that, in his view, the Claimant did not discharge his duties with the requisite loyalty, skill and care. He stated that the farm had an unnecessarily large workforce during the Claimant’s tenure. 47.According to RW2, the Respondent had since reduced its wage bill by reducing the workforce from approximately 320 employees to 240, which he stated had resulted in cost savings and increased production. 48.RW2 further testified that he introduced a sticky-trap strategy at the farm to address the insect infestation. According to him, the strategy had substantially eliminated the insect problem, which had previously affected the farm and resulted in the cancellation of shipments. 49.He further stated that there were no longer adverse reports concerning the quality of the stems and that this had generally improved the Respondent’s production. 50.In RW2’s view, the Claimant’s termination had been followed by positive changes at the Respondent’s farm, including the absence of cancelled exports. He added that the changes had contributed to greater stability within the company and enhanced job security for its employees. 13

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51.Vincent Evererdus Van Baal (RW3) identified himself as a Director and investor in the Respondent company. Equally, he adopted his witness statement as his evidence in chief. 52.RW3 testified that the agreement initially entered into with the Claimant was intended to govern a consultancy arrangement. In this regard, he stated that the parties subsequently reached an oral agreement for the Claimant to be engaged as an employee, upon which the terms of engagement changed. 53.According to RW3, during the eight (8) month consultancy period, the Claimant raised invoices for his services. Upon commencement of his employment in September 2024, the Respondent engaged Huduma Services Limited to enroll him on its payroll. 54.He further testified that the Claimant’s performance was unsatisfactory and that this contributed to the decision to terminate his employment. 55.It was RW3’s testimony that when the Claimant was appointed as Farm Manager, he assured him (RW3) that he had the situation under control and was capable of delivering the expected results. 14

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56.RW3 further testified that concerns regarding the Claimant’s performance were consistently monitored from the Respondent’s operations in the Netherlands, where its head buyer was based. He stated that the Claimant was requested to make improvements, identify any challenges affecting the performance of his duties and seek assistance from management where necessary. According to RW3, the Claimant, however, downplayed the difficulties encountered in the course of his work and maintained that he was on track. 57.RW3 further testified that the Respondent and the Claimant jointly developed a strategic crop plan referred to as Scenario 3.1, whose implementation at the farm level was entrusted to the Claimant. He stated that the Claimant failed to implement the plan as required. 58.He further testified that the Claimant gave the Respondent advice which, in his view, resulted in substantial financial losses. According to RW3, entire shipments were destroyed following the detection of insect infestation. He stated that KCB in the Netherlands held the affected shipments and subsequently destroyed them at the Respondent’s expense. 59.RW3 further testified that a strawberry project initiated by the Claimant resulted in liabilities, compelling the Respondent to pursue outstanding debts and incur additional expenses. 15

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60.He stated that the Claimant supplied strawberries valued at approximately Kshs 3 million to a company known as Listen to Nature, which amount remains outstanding. RW3 further testified that seedlings were subsequently destroyed, resulting in additional losses, particularly because they had been imported at considerable cost. 61.RW3 further testified that the Claimant was given three (3) weeks within which to respond to the Notice to Show Cause, which period he considered adequate. 62.He stated that the Claimant’s response was unsatisfactory and consequently invited him to attend a disciplinary hearing on 7 th August 2025. According to RW3, the Claimant was informed that the meeting was a disciplinary hearing and was advised of his right to be accompanied by a person of his choice. He stated that the Claimant waived that right and the hearing proceeded as scheduled. 63.It was RW3’s contention that, allegedly acting on the advice of third parties, the Claimant presented a letter at the conclusion of the disciplinary hearing seeking additional time. According to RW3, the disciplinary panel declined the request. 16

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64.RW3 further testified that the situation at the farm had changed significantly following the Claimant’s departure and that the Respondent had since made substantial progress. He stated that the rejects previously experienced during the Claimant’s tenure had ceased and that delays in clearing shipments, which had previously resulted in a decrease in the value of the flowers, were no longer being experienced. 65.Boy Van Baal (RW4) identified himself as a Director of Mavili B.V., a company holding shares in the Respondent. He adopted his witness statement as his evidence in chief. 66.RW4 testified that he is based in the Netherlands and is responsible for managing the Respondent’s markets. He explained that, in that capacity, his administrative role includes receiving consignments originating from Kenya and destined for the Netherlands on behalf of the Respondent and facilitating their submission for sale. 67.RW4 further testified that during the Claimant’s tenure as Farm Manager, the situation at the farm deteriorated. He stated that he repeatedly raised concerns with the Claimant regarding the need to improve performance and offered to provide assistance where necessary. 17

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68.He further testified that under the Claimant’s management, operational planning had deteriorated and neither the Scenario 3.1 plan nor the execution roadmap was being effectively implemented. According to RW4, this resulted in qualitycontrol losses estimated at approximately EUR 40,000, unpredictable delivery schedules and volumes, recurring complaints from the Respondent’s largest retail customer, Hoorn Boom Masters, concerning the freshness and scent of the products, repeated consignments being held by KCB due to compliance failures, and declining trust and market access at Royal Flora Holland. He added that KCB was the relevant regulatory authority in the Netherlands for the industry. 69.RW4 stated that, in light of these concerns, the Respondent recommended that a disciplinary process be undertaken. 70.RW4 further testified that, as a representative of the Respondent’s largest shareholder, he closely monitored the operations in Kenya, where the Respondent’s products originated. He stated that it was important to address the challenges at the farm, particularly as the company was operating at a loss. 71.According to RW4, the agreed standards relating to quality planning and execution were not being met, resulting in a situation that was unsustainable for both the shareholders and the Respondent’s customers. 18

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72.RW4 further testified that, upon investigating the challenges, he established that the strategies jointly developed with the Claimant were not being implemented as agreed and that this had contributed to the decline in the Respondent’s market performance. 73.He further stated that the Claimant had jointly participated in developing the strategic crop plan in Kenya, known as Scenario 3.1, and was therefore responsible for ensuring that the agreed standards were communicated and implemented. 74.According to RW4, the Claimant’s responsibilities as Farm Manager included crop planning and management, supervision of farm operations, quality control, optimal utilisation of fertiliser through crop-specific application schedules, proper recording of fertiliser applications and chemical usage, and establishment of appropriate spraying schedules. 75.RW4 further testified that the Claimant was aware that the company was operating at a loss. He added that the quality bonus reflected in the invoice was a motivational incentive communicated to the company by V.D. Floristik, the head buyer, and was not a benefit attributable to the Claimant in his individual capacity. 19

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Submissions 76.On the Claimant’s part, it was submitted that while the title of the document headed “contract of employment” is not by itself determinative of legal status, it remains a relevant factor when considered together with the surrounding circumstances, the parties' conduct and the manner in which the relationship was administered in practice. 77.In support of the Claimant’s submissions, reliance was placed on the case of Everret Aviation Limited v Kenya Revenue Authority (Through the Commissioner of Domestic Taxes) [2013] eKLR. 78.It was the Claimant's further submission that the existence of an employment relationship is established by multiple independent and mutually strands of evidence, and the evidence produced by both parties, whether considered individually or collectively, is consistent with the existence of an employment relationship within the meaning of the Employment Act. 79.On the issue of whether there were valid and fair reasons for the termination of his employment, the Claimant submitted that the Respondent did not produce any evidence of structured performance management, corrective instructions or documented complaints addressed to him preceding the termination. 20

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80.In the same vein, it was submitted that the Respondent did not produce any evidentiary record containing independent verification of losses or third-party assessments attributing such loss to the Claimant. That further, no causal link was established between any alleged operational shortcomings and a willful or gross failure by the Claimant to perform assigned duties. 81.In support of the Claimant’s submissions, the Court was invited to consider the cases of Kenfreight (E.A.) Limited v Benson K. Nguti [2016] KECA 688 (KLR) and CFC Stanbic Bank Limited v Danson Mwashako Mwakuwona [2015] KECA 919 (KLR). 82.It was the Claimant’s position that the Respondent has failed to establish the threshold required under Section 44(4) of the Employment Act hence, the allegations relied upon, even if accepted at their highest, do not demonstrate gross negligence or willful failure to perform assigned duties. 83.With regards to procedure, the Claimant contended that he was denied an opportunity to secure representation in circumstances where the allegations were serious and potentially career-determining. It was his submission that he attended the hearing under protest and expressly raised objections to the 21

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procedural deficiencies. It was his view that this did not constitute waiver of statutory protection under Section 41 of the Employment Act. 84.To buttress the Claimant’s submissions, reliance was placed on the cases of Postal Corporation of Kenya v Tanui (Civil Appeal 127 of 2015) [2019] KECA 489 (KLR) (19 July 2019) (Judgment) and Isindu v Lavington Security Guards Ltd (Civil Appeal 301 of 2015) [2017] KECA 225 (KLR) (3 November 2017) (Judgment). 85.According to the Claimant, the Respondent failed to comply with the mandatory requirements of Section 41 of the Employment Act, thereby rendering the termination procedurally unfair. The Court was urged to find as much. 86.On the Respondent’s part, it was submitted that an employment relationship does not require a written contract to exist and that what matters is the conduct of the parties. 87.It was further submitted by the Respondent that the contract was varied by conduct and that it (Respondent) complied with all obligations applicable to the employment phase. 22

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88.It was further submitted that the Respondent had valid and substantive reason to terminate the Claimant’s employment. On this score, the Respondent contended that the Claimant was the highest paid employee in the company by virtue of his position and remuneration and he owed the Respondent the highest duty of care to ensure productivity, quality and protection of customer relations. 89.On the issue of procedure, the Respondent submitted that due process was strictly followed prior to termination of the Claimant’s employment in line with Section 41 of the Employment Act. 90.In the Respondent’s view, the Claimant's complaint of less than 24 hours’ notice for the disciplinary hearing is misplaced and without basis. 91.The Respondent submitted that the totality of evidence and law before this Honorable Court proves that the termination of the Claimant was fair both substantively and procedurally. To this end, the Respondent urged the Court to dismiss the claim with costs. 92.It is noteworthy that the majority of the authorities cited by the Respondent as having been reported in the Kenya Law Reports are not available on the Kenya Law Reports website. For instance, Lawrence Njuguna Githinji v AIG Kenya Insurance Company Ltd eKLR, Fredrick Shisia Wanyama v Kenya Power 23

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and Lighting Company Ltd eKLR, Grace Atieno Obala v Gulf African Bank Ltd eKLR and Peter Mwangi Ndegwa v Kenya Airways Ltd eKLR. 93.Further, the Respondent incorrectly cited other well-established authorities in employment law. For instance, Postal Corporation of Kenya v Andrew Kiptoo Cheruiyot and Walter Ogal Anuro v Teachers Service Commission [2013] eKLR were cited as Postal Corporation of Kenya v Andrew Kiptoo Cheruiyot eKLR and Walter Ogalo v Airtel Networks Kenya Ltd eKLR 2016, respectively. 94.The duty of counsel to carefully verify and cross-check the authorities upon which they seek to rely cannot be overstated. Counsel ought to exercise due diligence in ensuring that the authorities cited before the Court exist, are accurately identified and correctly reported, and support the propositions for which they are relied upon. The practice of citing authorities without proper verification is not only unhelpful to the Court but may also undermine the quality and reliability of submissions. I will say no more. Analysis and Determination 24

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95.Having considered the pleadings, the evidence on record, and the respective submissions by the parties, the Court finds that the following issues arise for determination: a) When did the employment relationship between the parties commence? b) Whether the Respondent has proved to the requisite standard that it had a valid and fair reason for terminating the Claimant’s employment; c) Whether the Claimant was accorded procedural fairness prior to the termination of his employment; and d) Whether the Claimant is entitled to the reliefs sought in the Claim. Commencement of the employment relationship? 96.At the outset, it is worth pointing out that the existence of an employment relationship between the Claimant and the Respondent at the material time is not in dispute. The controversy is confined to the precise date on which that employment relationship commenced. 97.It is the Claimant’s case that the employment relationship commenced on 29th February 2024. The Respondent, on the other hand, maintains that the 25

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employment relationship commenced on 1st September 2024, contending that prior to that date, the Claimant had been engaged as a consultant. 98.In support of his position, the Claimant relies on the document described as a “Contract of Employment” together with the addendum dated 29th February 2024. 99.The Respondent, however, challenges the reliability of the said “Contract of Employment” and the addendum dated 29th February 2024, contending that they contain voidable clauses and are therefore incapable of being relied upon as evidence of the commencement of an employment relationship. 100. Notably, the contract stipulates a commencement date of 1st January 2024. A review of the document reveals, however, a number of inconsistencies in its terms. For instance, the Claimant is described as a “contractor”, while the Respondent is referred to as the “client”. Further, although the contract provides for a gross monthly remuneration of EUR 7,500, the addendum stipulates that the Claimant’s remuneration would be subject to withholding tax. Notably, these provisions are inconsistent with the terms ordinarily associated with a contract of employment and are, instead, more characteristic of a consultancy arrangement. 26

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101. In distinguishing an employment relationship from a consultancy arrangement, it was held in the case of Kenneth Kimani Mburu & another v Kibe Muigai Holdings Limited [2014] KEELRC 723 (KLR) that the Court is not bound by the parties’ characterization or declarations regarding the nature of their contractual relationship, although the parties’ intention remains a relevant consideration. 102. Further, ILO Recommendation No. 198 states that the determination of the existence of such an employment relationship should be guided primarily by the facts relating to the performance of work and the remuneration of the worker, notwithstanding how the relationship is characterized in any contrary arrangement, contractual or otherwise, that may have been agreed between the parties. 103. In the present case, the record bears that the Claimant, through Timau Seedlings and Consultation Limited, of which he was the sole director and shareholder, raised invoices to the Respondent from January 2024 through to and including September 2024. 104. Indeed, the Claimant confirmed during cross-examination that he issued invoices to the Respondent from January 2024 up to September 2024. 27

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105. In light of the foregoing, and upon consideration of the document described as the “Contract of Employment” together with the addendum dated 29th February 2024, the Court finds that, notwithstanding its description as an employment contract, the parties’ relationship was, in substance, a consultancy arrangement prior to 1st September 2024. 106. The Court therefore finds that the employment relationship commenced on 1st September 2024, when the Claimant was formally engaged as an employee by the Respondent, and not on 1st January 2024 as he has alleged. Valid and fair reason for termination? 107. Section 43(1) of the Employment Act requires an employer to prove the reason or reasons for terminating an employee's employment, failing which the termination is deemed unfair. This provision is to be read alongside Section 45(2)(a) and (b) of the Employment Act, which provides that a termination is unfair where the employer fails to demonstrate that the reason for the termination was valid and fair, and related to the employee's conduct, capacity, compatibility, or its operational requirements. 28

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108. In the present case, the Claimant’s employment was terminated on the ground that he had failed to implement the measures contemplated under the Respondent’s strategic crop plan, referred to as Scenario 3.1, despite having sufficient time and resources to do so, as well as having received email reminders in that regard. The Respondent further stated in the letter of termination that the Claimant’s alleged failure contributed to financial losses of approximately EUR 31,267.91. To this end, the Claimant was accused of gross negligence and failure to perform his assigned duties as Farm Manager, contrary to Section 44(4)(c) of the Employment Act and the Respondent’s standing orders. 109. In his testimony, RW1 stated that the initiatives contemplated under Scenario 3.1 included uprooting strawberries and replacing them with flowers, as well as planting eucalyptus on account of its capacity to produce multiple stems. 110. RW4 testified that Scenario 3.1 had been jointly developed by the Respondent and the Claimant, who was thereafter expected to communicate and implement the agreed standards. RW4 further stated that, during the Claimant’s tenure, operational planning at the farm had deteriorated and that neither Scenario 3.1 nor the execution roadmap was under the Claimant’s control. 29

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111. Given the nature of the allegations against the Claimant, particularly the alleged failure to implement the measures contemplated under Scenario 3.1, it was reasonably expected that the Respondent would produce the said strategic plan. Such a document would ordinarily be expected to set out, among others, the objectives and targets of the plan, the implementation strategy, the respective responsibilities of the persons involved, specific timelines for implementation and the relevant key performance indicators. 112. Instead, the Respondent relied mainly on email correspondence in which the various scenarios were discussed. A review of the correspondence reveals that the scenarios were still under deliberation, with various proposals and ideas being exchanged. For instance, in an email dated 12th December 2024, Dennis Van Putten shared with other members of the team what was proposed as Scenario 3.1. 113. Further discussions concerning Scenario 3.1 were exchanged through email on 18th December 2024 between RW4 and Dennis Van Putten. 114. In another undated email, RW4 informed the other members of the team that consultations on the different scenarios were scheduled for 14 th January 2025. 30

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He explained that the aim of the discussions was to flesh out the various scenarios and make a final decision on them. 115. There is, however, no evidence on record demonstrating that a definitive Scenario 3.1 was ultimately agreed upon, setting out its objectives and targets, implementation approach, individual responsibilities, specific timelines and key performance indicators. What’s more, there is no evidence demonstrating that such a definitive plan was communicated or shared with the Claimant. 116. Indeed, the Respondent did not identify the specific period during which Scenario 3.1 was to be implemented. This is bearing in mind that during crossexamination, RW4 stated that he could not recall when Scenario 3.1 commenced. Further to the foregoing, in an email dated 17 th March 2025, the Claimant informed Toby that Scenario 3.1 was yet to be approved, following which he would be able to commence adjusting the orders. 117. In view of the foregoing, I cannot help but question the basis upon which the Respondent concluded that the Claimant had failed to implement the measures contemplated under Scenario 3.1. 118. In light of the foregoing gaps, the Court is led to conclude that the Respondent’s determination that the Claimant had failed to implement the 31

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measures contemplated under Scenario 3.1 was not based on an objectively defined and ascertainable performance standard. 119. In addition to the foregoing, the Respondent alleged that the Claimant’s performance at the farm had deteriorated. In particular, the Respondent referred to the quality of products shipped from Kenya to the Netherlands, which it alleged resulted in customer complaints and the destruction of some consignments by KCB. 120. In support of this allegation, the Respondent produced email correspondence in which RW4 raised concerns regarding the quality of consignments shipped from Kenya. 121. It is apparent from the evidence that concerns regarding the quality of some consignments arose in the Netherlands after the consignments had been inspected and cleared by the Kenya Plant Health Inspectorate Service (KEPHIS), the body mandated, among other functions, to regulate imports and exports in order to ensure plant health, the quality of agricultural inputs and the safety of agricultural produce. 122. Accordingly, the fact that the consignments had been cleared by KEPHIS raises the possibility that the quality concerns may have arisen during transit or 32

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subsequently. Put differently, the evidence on record does not independently establish that the quality issues were wholly attributable to the Claimant’s acts or omissions in his capacity as Farm Manager. 123. The above conclusion is buttressed by an email dated 27th October 2025, in which RW4 raised concerns regarding what he described as ongoing quality issues affecting flower consignments from the farm. He observed that, despite numerous feedback points concerning the quality of the flowers, little or nothing was being implemented. 124. It is worth pointing out that by 27 th October 2025, the Claimant had already been terminated from employment and was therefore no longer serving as the Respondent’s Farm Manager. The said correspondence consequently raises doubt as to whether the quality concerns experienced during the Claimant’s tenure could properly be attributed to his direct acts or omissions as Farm Manager. 125. All things considered, the Court finds that the Respondent has failed, on a balance of probabilities, to demonstrate that the termination of the Claimant’s employment was substantially justified. This is particularly so given that the Respondent failed to produce the Scenario 3.1 strategic plan, which the Claimant was alleged to have failed to implement, and further failed to adduce 33

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independent evidence linking the quality concerns relating to the consignments to the Claimant’s direct acts or omissions. 126. In the final analysis, the Court finds that the Respondent failed to discharge the statutory burden of proving, on a balance of probabilities, the existence of a valid and fair reason for the Claimant’s termination within the meaning of Section 45(2)(a) and (b) of the Employment Act. Procedural fairness? 127. In addition to establishing substantive fairness, an employer is further obligated under Section 45(2)(c) of the Employment Act to ensure that the employee is subjected to a fair procedure prior to termination. The specific requirements of procedural fairness are set out under Section 41 of the Employment Act, which enjoins an employer to notify the employee of the allegations levelled against them and afford them an opportunity to respond, in the presence of a shop floor union representative or a fellow employee of their choice. 128. In the present case, the disciplinary process against the Claimant commenced with the issuance of a Notice to Show Cause dated 11th July 2025, to which the Claimant responded on 4th August 2025. 34

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129. Subsequently, the Claimant was invited to attend a disciplinary hearing which took place on 7th August 2025. The Claimant takes issue with both the manner in which he was notified of the disciplinary hearing and the period of notice afforded to him. 130. In particular, he contends that he was casually informed through a WhatsApp message that the meeting scheduled for 7 th August 2025 was, in fact, a disciplinary hearing. 131. Both parties produced screenshots of the WhatsApp correspondence exchanged between the Claimant and RW3 prior to the disciplinary hearing. 132. The record bears that on 4th August 2025, RW3 acknowledged receipt of the Claimant’s response to the Notice to Show Cause and indicated that he would revert to him. On 6th August 2025, RW3 subsequently invited the Claimant to a meeting scheduled for 7th August 2025 at the meeting rooms behind Dormans, stating that the purpose of the meeting was “to discuss it all and to arrive at an amicable solution.” 133. In response, the Claimant confirmed his availability and indicated that he was open to an informal discussion. He further sought clarification as to who would attend the meeting from the Respondent’s side. In response, RW3 35

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informed him that the meeting was a disciplinary hearing arising from the Notice to Show Cause and urged him to attend with a colleague of his choice. It is notable that the message communicating the true nature of the meeting was sent at 16:45 on 6th August 2025, while the meeting was scheduled for 5:00 p.m. on 7th August 2025. 134. It is therefore evident that the Claimant was notified of the disciplinary hearing on the eve of the scheduled hearing, effectively giving him a notice period of approximately 24 hours. 135. In determining whether the notice afforded to the Claimant to attend the disciplinary hearing was adequate in the circumstances, the Court is guided by the decision in Nebert Mandala Ombajo v Institute of Certified Public Accountants of Kenya (ICPAK), Nakuru Civil Appeal No. 62 of 2018, in which the Court of Appeal observed that disciplinary proceedings are a grave matter for an employee, given their potentially severe consequences. The appellate Court held that where serious allegations are involved, an employee must be given sufficient time to prepare mentally and, if necessary, to seek advice or representation. 136. In the instant case, the Court finds that the 24 hours afforded to the Claimant to prepare for and attend the disciplinary hearing were inadequate and it is more 36

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than probable that his ability to prepare and present an effective defence at the disciplinary hearing was impaired. 137. The Court further concurs with the reasoning in Nebert Mandala Ombajo v Institute of Certified Public Accountants of Kenya (ICPAK), (supra) that the fact that the employee nonetheless responded to the allegations and attended the disciplinary hearing does not remedy the prejudice caused by the inadequate notice. 138. Similarly in the present case, the mere fact that the Claimant attended the disciplinary hearing and did not seek an adjournment or additional time prior to the hearing does not cure the prejudice occasioned by the inadequate notice. The obligation to ensure procedural fairness rested squarely with the Respondent, and that obligation included affording the Claimant sufficient time to prepare and effectively present his defence. 139. It is the considered view of the Court that the mere issuance of a Notice to Show Cause, coupled with an opportunity for an employee to respond thereto and to appear before a disciplinary panel, does not, in itself, satisfy the requirements of a fair hearing. 140. The disciplinary process, taken as a whole, must embody the essential elements of procedural fairness, including prior and adequate notice of the 37

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hearing, sufficient and comprehensive particulars of the allegations, consideration of a request for an adjournment where sufficient grounds are advanced, and reasonable access to the information, materials and evidence upon which the employer intends to rely in making its determination. 141. In the present case, the Court finds that the Respondent failed to afford the Claimant adequate notice and sufficient time to prepare for the disciplinary hearing. In the circumstances, the Claimant was denied a fair opportunity to prepare and present his case, thereby rendering the disciplinary process procedurally unfair within the meaning of Section 41 of the Employment Act. Reliefs? 142. Having found that the Respondent failed to discharge the burden of proving that the Claimant’s termination from employment was based on a fair and valid reason, and further failed to accord him procedural fairness, the Court awards the Claimant compensation equivalent to three (3) months’ salary. In arriving at this award, the Court has taken into account, inter alia, the relatively short duration of the employment relationship. 143. The Claimant is also entitled to his terminal dues, comprising salary for the 11 days worked in August 2025 and salary in lieu of notice. These sums shall 38

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be paid to the Claimant, there being no evidence on record that the same have been duly settled. 144. The Claimant has claimed payment for three (3) days of accrued leave. However, during cross-examination, the Claimant testified that he proceeded on annual leave for 19 days, from 12th July 2025 to 3rd August 2025. Having worked for the Respondent for 11 months, the Claimant had accrued annual leave of 19.25 days. Since he had already taken 19 days of leave prior to the termination of his employment, the outstanding leave balance was 0.25 days, and not three (3) days as claimed. Therefore, his accrued leave entitlement at the time of termination of his employment was 0.25 days which amounts to EUR 62.50. 145. With regard to the claim for house allowance, the Respondent contended in its Statement of Response that the Claimant was the highest-paid employee in the company and that the housing allowance component was incorporated into his salary. 146. The Court having found elsewhere in this Judgment that the employment relationship commenced on 1st September 2024, it follows that the document described as the “contract of employment”, together with the addendum dated 39

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29th February 2024, are inapplicable for purposes of determining the Claimant’s remuneration. 147. In the absence of an applicable contract of employment, the Court must therefore consider the other contractual documents on record in determining whether house allowance was incorporated into the Claimant’s remuneration. In this regard, the Claimant’s pay slip is instructive. It identifies “basic pay” as a component of his remuneration, while the component for house allowance is indicated as “0.00”. 148. Further, there is no indication let alone a suggestion by the Respondent that the Claimant was provided with housing by the company. 149. It thus follows that the Claimant is entitled to house allowance as provided under Section 31(1) of the Employment Act. Guided by the decision of the Court of Appeal in Grain Pro Kenya Inc. Ltd v Andrew Waithaka Kiragu [2019] KECA 563 (KLR), the house allowance shall be computed at the rate of 15% of the Claimant’s basic salary. 150. I must add that the Respondent’s contention that the Claimant was the highest-paid employee in the company does not hold. Whether or not the Claimant was the highest-paid employee, the Respondent’s statutory obligation 40

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to either pay him a housing allowance or provide him with reasonable housing accommodation was not negated. 151. In the event the Respondent considered the remuneration paid to the Claimant sufficient and intended that it incorporate house allowance, nothing prevented it from expressly providing for such consolidation in the contract of employment. In the absence of such provision, the Court cannot infer that house allowance was incorporated into the Claimant’s basic salary merely on the basis of the quantum of his remuneration. 152. The claim for repatriation expenses is declined. This is because it is evident from the record that, at the time the Claimant was engaged by the Respondent, he was already resident in Kenya. He admitted as much during cross examination. Consequently, there is no evidence of any repatriation expenses incurred or payable to him. 153. The claim for unremitted NHIF/SHIF deductions is equally declined, as the evidence on record confirms that the deductions in question were duly remitted. This position was further confirmed by James Lengewa, an officer from the Social Health Authority (SHA) who attended Court and specifically testified on his issue. 41

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154. The claim for aggravated and exemplary damages is declined, as no sufficient basis has been established for the award of such damages beyond compensation for unfair termination. 155. The Claimant is, however, entitled to a certificate of service in accordance with Section 51(1) of the Employment Act. Orders 156. The total sum of my consideration is that Judgment is hereby entered in favour of the Claimant against the Respondent in the following terms: a) A declaration is hereby issued that the termination of the Claimant’s employment was both substantively and procedurally unfair. b) The Claimant is awarded compensation in the sum of EUR 22,500, being the equivalent of three (3) months’ salary. c) The Claimant is awarded the sum of Kshs. 1,546,051.00, being one (1) month’s salary in lieu of notice and salary for the 11 days worked in August 2025, as reflected in the tabulation of the Claimant’s final dues dated 11th August 2025. d) The Claimant is awarded the sum of EUR 62.50, being payment for accrued annual leave equivalent to 0.25 days. 42

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e) The Claimant is awarded the sum of EUR 12,787.50, being house allowance for the period of 11 months and 11 days, running from 1 st September 2024 to 11th August 2025. f) The sums awarded under paragraphs (b), (c), (d) and (e) above shall attract interest at Court rates from the date of this Judgment until payment in full. g) The Claimant shall also have the costs of the suit. 157. The Respondent shall issue the Claimant with a certificate of service within 14 days from the date of this Judgment. DATED, SIGNED and DELIVERED at Nyeri this 25th day of September 2026. ……………………………… STELLA RUTTO JUDGE In the presence of: For the Claimant Ms. Nyakundi For the Respondent Ms. Santa Munga Court Assistant Ndati 43

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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 had 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 affordable resolution of civil disputes. STELLA RUTTO JUDGE 44

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