CASE STUDY
NG’ENO V. EAST AFRICAN BREWERIES PLC [2025] KEELRC 2188 (KLR)
(https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2188/eng@2025-07-24)
The Facts of this Case are as follows;
Bernard Ng’eno is the Claimant in this case and a former employee of the Respondent. East African Breweries PLC is the Respondent herein and the former employer of Bernard Ng’eno.
Bernard Ng’eno joined East African Breweries PLC in 2011 as a Sales Representative. By 2023, he had risen through the ranks to the position of Divisional Sales Manager-Mountain, reporting to the Commercial Director.
On 21st September 2023, the Human Resources Director and the Commercial Director, asked to meet Bernard Ng’eno. At the meeting, Bernard Ng’eno was informed of a decision to suspend him from work, to pave way for investigations into allegations of irregular transactions. The management were concerned with “fraudulent activities” involving two major events dubbed “Isiolo Fest” and “Embu Sevens Activation”. According to East African Breweries, Bernard had approved Monitoring and Evaluation reports that exaggerated event outcomes, allegedly in collaboration with others. There was also a separate claim that he had failed to report the loss of a company-issued phone promptly, a matter they treated as another indicator of negligence or dishonesty. After investigations were concluded, East African Breweries put Bernard through a disciplinary process, eventually terminating his employment with the company on 7th November 2023.
Bernard sued his former employer, alleging among other things that his termination from employment was unfair and procedurally flawed. He particularly claimed that the disciplinary process was one sided and that the evidence he provided, including that of reporting the loss of the phone to the company’s IT department and even to the police, was not considered.
Was Bernard Ng’eno’s termination by East African Breweries procedurally fair and based on a valid reason?
Ng’eno told the Court that event planning and reporting was a shared responsibility, and that he had relied on data already approved in the system. As for the phone, he insisted to the Court that he had reported its loss to the company’s IT department and even to the police, with documentation to prove it. He reiterated that despite his retorts, he was dismissed on November 7, 2023.
What does the Law provide?
The legal standard governing termination from employment in Kenya is found in Sections 41 and 45 of the Employment Act, 2007. Section 41 provides for procedural fairness. Before termination, an employee must be informed of the reasons and given a meaningful chance to respond, with the right to have a representative present. Section 45 states that a termination is unfair if the employer fails to prove that it was grounded in a valid reason and conducted fairly.
Analysis
The court acknowledged that the allegations were serious. Falsifying Monitoring and Evaluation reports and mismanaging company property could certainly constitute valid grounds for termination if proven. However, the court reiterated that a substantive reason alone is not enough. The process must also be fair. In assessing procedural fairness, the Court noted that Bernard Ng’eno had specifically requested key for documents before his disciplinary hearing, including the internal investigation report and statements from witnesses, which East African Breweries were relying on. The company refused to share them, citing confidentiality. The court underscored that fairness demands disclosure, especially when that evidence forms the foundation of serious accusations. Denying Ng’eno access to the very documents being used against him violated Section 41 of the Employment Act and undermined his ability to defend himself effectively. The Judge reiterated that once an employer uses certain evidence to support disciplinary action, it loses the right to withhold that evidence on grounds of confidentiality.
In trying to strengthen its case on Bernard’s misconduct, the company included as part of its documents, a letter from Kenyatta University regarding Ng’eno’s discontinued academic program. The Court stated that its inclusion, without explanation or giving Ng’eno a chance to respond, was prejudicial and malicious at worse.
In conclusion therefore, the court found that although East African Breweries had a substantive reason to initiate a disciplinary process, the procedure was flawed and it did not meet the requirements of Section 41 And 45 of the Employment Act, thereby rendering Bernards termination of employment unlawful and unfair.
Conclusion
Bernard Ng’eno was awarded 12 months’ salary as compensation for unfair termination, totalling Kes. 10,058,300, and one-month’s salary in lieu of notice, amounting to Kes. 838,199. In total he was awarded Kes. 10,896,787.
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