Blue Jay Investments Limited v Maafudh (Appeal E239 of 2025) [2026] KEELRC 1295 (KLR) (18 May 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT MOMBASA** *(Before Hon. Lady Justice Monica Mbarũ)* **APPEAL NO. E239 OF 2025** **BLUE JAY INVESTMENTS LIMITED APPELLANT** *VERSUS* **ABUBAKAR ABDALLAH MAAFUDH RESPONDENT** **[Being an appeal from the judgment of Hon. Dominica Nyambu delivered on 6 November 2025 in Mombasa CMELRC No. E035 of 2025]** **JUDGMENT** The appeal arises from the judgment delivered on 6 November 2025 in Mombasa CMELRC No. E035 of 2025. The appellant seeks that the judgment be set aside with costs on the grounds that the learned magistrate erred in law and fact in finding that due process was not followed and, consequently, that the termination of employment was unlawful. However, the respondent was issued a notice to show cause and invited to respond, and a disciplinary hearing was conducted, but the facts were not considered. The respondent admitted in the claim that proper procedure was followed. Hence, the trial court found the reason given invalid. The trial court improperly applied the decision by finding that the cause of the fire should have been investigated before the disciplinary hearing. The respondent admitted in his response to the circumstances leading to the fire. Under section 47(5) of the Employment Act (the Act), he failed to discharge his burden of proof that there was unfair termination of employment. The appeal is that the trial court's awards were unjustified and ignored the evidence presented to it. The award of 3 months' compensation, public holiday pay, leave pay, and alleged unfair deductions was not based on any known principle of law or on evidence, and the appeal should be allowed. The background to the appeal is a claim filed by the respondent before the trial court. His case was that in a contract dated 20 February 2021, he was employed by the appellant as a heavy commercial driver. The contract was fixed for a year. Upon completion, the respondent continued under the same terms and worked until his employment was terminated. The wage paid was Ksh. 35,000, which was consolidated, hence an underpayment. Due to the nature of his work, he did not take the public holidays and rest days due, and the leave was neither taken nor paid. His case was that in April 2022, while on duty en route to Malawi, upon reaching Chesoni, the applicant’s motor vehicle registration o. KDD 384E, which he was driving, developed a mechanical fault, which caused a fire that burnt 8 tyres of the truck. Before taking the journey, he had complained about the vehicle's mechanical faults and noted these in his job card. The fire incident was thus caused by factors beyond his control. The respondent claimed that upon returning from the trip, he worked until 12 May 2022, when he was issued a notice to show cause, requiring him to explain the circumstances of the fire and attend a disciplinary hearing on 13 May 2022. His case was that he attended the disciplinary hearing and, on 13 May 2022, was issued a letter of suspension from duty. Through a notice dated 23 May 2022, His employment was terminated, citing alleged poor performance. These reasons were not valid, just as fair as the incident while in Malawi was a result of a mechanical fault in the vehicle, which had been reported to the appellant. The respondent thus claimed that his employment was terminated unfairly and claimed the following terminal dues: 1. Underpayments Ksh. 7,771.71. 2. Salary for June 2022 Ksh. 34,896.45 3. Pro-rated leave for 4 months, Ksh. 11, 434, 25 4. Public holidays 18 days Ksh. 41,163.30 5. 12 months' compensation Ksh. 473,377.92 In reply, the appellant admitted that the respondent was an employee, a heavy commercial driver, earning a consolidated wage of Ksh. 35,000 per month. His employment was characterized by multiple cases of misconduct. There was an incident with the truck registration No. KDD 383E due to the negligence of the respondent and not due to mechanical faults as alleged. All the appellant trucks are regularly serviced upon arrival. The respondent was issued a notice to show cause and attended a disciplinary hearing. In both instances, he did not attribute the accident to any mechanical fault in the vehicle, and his excuse came as an afterthought. During the disciplinary hearing, the appellant indicated that the 8 Tyres were under insufficient pressure, which led to the accident, yet all drivers are custodians of the trucks during trips and are always responsible for reporting mechanical faults. It is the duty of the respondent to ensure the tyres have enough pressure to avert a collision. In maintaining his employment, the appellant had due regard to the responses and the hearing of the case and found the respondent culpable. All terminal dues are paid, and the claims made are without merit. The learned magistrate heard the parties and held that there was an unlawful and unfair termination of employment that failed to adhere to the provisions of section 41 of the Act. The appellant did not investigate the cause of the fire incident to motor vehicle KDD 383E and hence cannot blame the respondent. The claims were analysed with the following awards: 1. Underpayments Ksh. 7,771.71 2. Salary for 26 days in June 2022 Ksh. 34,896.45 3. Leave pay Ksh. 11,434.25 4. Public holidays Ksh.41,163.30 5. 3 months' compensation Ksh. 118,344. 6. Refund for unfair deductions Ksh. 26,000. 7. Costs and interests. On appeal, the appellant submitted that the trial court erred in its judgment by failing to find valid and genuine reasons for the termination of employment. Under sections 45 and 43 of the Act, where the employer finds a genuine and valid reason based on the conduct of the employee, termination of his employment is justified. The appellant issued a show cause notice to the respondent and invited him to a disciplinary hearing, but he failed to provide satisfactory responses regarding the accident involving the allocated motor vehicle. In **Ondieki v Comply Industries Ltd [2023] eKLR,** the court held that where a party proves his case on a balance of probabilities, this is the accepted standard under common law. In this case, the respondent failed to provide satisfactory reasons for the show-cause notice and, during the disciplinary hearing, was unable to explain why he drove his allocated motor vehicle with low-pressure tyres, which he was duty-bound to ensure were in good condition. The claim that the vehicle had mechanical problems arose only later, as an afterthought. This evidence only arose in the pleadings and was not part of the responses to the notice to show cause. In **Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others [2019] eKLR,** the court held that, in adjudicating the reasonableness of the employer’s conduct, an employment tribunal must not simply substitute its view for that of the employer. The employer may terminate employment for good and valid reasons. In the case of **Gichimu t/a George Grassland Academy v Ngure [2026] eKLR,** the court held that section 43 of the Act requires the employer to have a reason that it genuinely believes exists at the time of terminating employment. There is no other standard higher than this. The appellant submitted that the trial court erred in failing to appreciate that, despite the appellant having valid reasons leading to termination of employment, the respondent was afforded due process. He was issued with notice and allowed to attend the disciplinary hearing as required under section 41 of the Act. Making the various awards and allowing the respondent's claim. Such should be set aside with costs. The award of compensation is not justified. The alleged underpayments are not due, since the application is based in Kilifi County, in Mazeras, under a different wage regulation. The wage of Ksh. 35,000 was consolidated and hence sufficient. The award of 26,000 in deductions arose from damages incurred in the accident that led to termination of employment; hence, it is justified. Under section 19(1) of the Act, such a deduction is allowed. The respondent took all his leave days. The public holidays were compensated through a mileage allowance paid in addition to the consolidated wage. Such took into account the nature of work. The appellant produced work records and M-Pesa statements to confirm the mileage allowances. The respondent submitted that the trial court analysed the evidence and applied the law properly, and the judgment should be affirmed with costs. There was no justifiable reason for the termination of employment. The appellant did not conduct an investigation to establish the cause of the fire that led to the accident and the burning of tyres. In **Munguti v Nestle Kenya Limited [2013] eKLR,** the court held that negligence comprises the existence of a duty of care, a breach of that duty, and loss resulting from the breach. In employment, negligence only arises where the employee fails to comply as directed. In this case, the respondent, as a driver, had reported mechanical faults to his vehicle, which the appellant failed to address, leading to the accident. Such a matter was not investigated before the termination of employment. Despite being taken through the disciplinary process as required under section 41 of the Act, the court held in **Peter Wangai v Egerton University [2019] eKLR** that there must be valid and genuine reasons for terminating employment. The employer cannot use fictitious reasons just to remove the employee from the shop floor. Such would be a sham disciplinary hearing. An investigation must be conducted. In this case, the trial court's awards are justified, and the appeal should be dismissed with costs. **Determination** This being a first appeal, the court is required to reassess the evidence, review the findings and make a conclusion. However, take into account that the trial court had the chance to see and hear the witnesses. By a notice dated 23 May 2022, the appellant terminated the respondent's employment on the grounds that, following a disciplinary process and a hearing on 13 May 2022, he was found to have committed acts of gross negligence that occasioned financial loss and were in breach of the company policy. Several accusations were levelled against the respondent, including a lack of commitment to the company, mechanical faults such as frequent tyre bursts, and past incidents of indiscipline. The appellant had therefore noted that his performance as a heavy commercial driver had failed to meet the company standards. Employment was thus terminated with effect from 23 June 2022, hence a 30-day notice. In the memorandum of claim, the respondent admitted that he was issued a notice to show cause and also invited to a disciplinary hearing. Save, the reasons for terminating employment were not valid. Under section 47(5) of the Act, the employee has the burden of proof. He must establish a prima facie case of unlawful termination of employment to allow the employer discharge its burden under section 43 of the Act by justifying the reasons leading to termination of employment as held in **Kenya Private Universities Workers Union Kenya Methodist University [2017] KEELRC 187 (KLR).** In this case, before the disciplinary process leading to the respondent’s termination from employment, the appellant accorded him the due process. Notice to show cause issued. The respondent replied and maintained that the allocated vehicle, KDD 383E, had tyres with low pressure. As a seasoned heavy commercial driver, low pressure to tyres is a matter which a driver should know and address before and during each journey. The employer having trusted the respondent to navigate its motor vehicle, basics for the job was to understand the allocated vehicle to avert any accident. During the disciplinary hearing, the record filed demonstrates the same response. The respondent maintained that the allocated vehicle had the tyres with low pressure leading to the accident. In his evidence in court on 15 May 2024, the respondent testified that he did not know the cause of the fire, it was due to a mechanical fault. This evidence is different from the respondent’s response during the disciplinary hearing while his mind was fresh from the incident and the accident. The appellant, as the employer, undertook due process and established the respondent's fault. Such formed a justified basis for termination of employment. a notice and a hearing as envisaged in section 41 of the Act issued. at the time the respondent was dismissed, the appellant had a valid and genuine reason to terminate the employment as envisaged in section 43 of the Act. In [**Banking, Insurance & Finance Union (Kenya) v Capital Sacco Society Limited [2015] KEELRC 282 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/282/eng%402015-11-06)the court reiterated that where the employer invites the employee to a disciplinary hearing, this gives the parties the best chance to source evidence. The court cannot infer what ought to have been established. The shop floor is the best source of evidence. Where the employer finds a genuine and valid reason for the termination of employment, and due process is observed, the court cannot infer different reasons as held in [**Solomon Mummah v Kenyatta University [2019] KEELRC 2047 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2047/eng%402019-03-22)**.** In this case, the appellant took all motions necessary to hear the respondent. It established valid and fair grounds and reasons leading to the termination of employment. This is found justified and lawful. Compensation awarded is not justified. On the other awards, regarding underpayments, the consolidated wage was Ksh. 35,000 per month. The apartment is based in Kilifi, Mazeras, outside of Mombasa City. Under the Wage Orders, a heavy commercial driver working in Kilifi in May 2022 was entitled to a basic wage of Ksh. 30,266 plus a house allowance of Ksh. 4,539.90 total gross Khs.34, 805.90. The respondent was paid Ksh 35,000 which is over and above the due wage. There was no underpayment. Salary for June 2026 was duly paid and acknowledged. On prorated leave days, this was paid, and there is evidence in the pay statement. For public holidays, although particularized, the appellant submitted evidence of payment of a mileage allowance to compensate for hours worked beyond the allocated hours. However, a mileage allowance is not the same thing as taking a day off upon working during a public holiday. What is apparent to the court is that the wage paid monthly was over and above, and took into account the exigencies of duty, and an amount of Ksh. 1,959 was paid monthly. In a year, this amounts to Ksh. 2,340. A claim for public holidays being a continuing injury cannot be carried forward beyond the year under section 89 of the Act. The claim for 18 days of public holidays spread beyond a year canto suffice. On the deduction of Ksh. 26,000 this arose from loss and damage incurred following the acceptance subject to the termination of employment, the reasons found justified, under sections 19 and 17 of the Act, the employer is allowed to deduct from the salary, any loss occasioned due to the negligence of the employee. See **Moses v Kansai Plascon Kenya Limited [2025] KEELRC 2605 (KLR)** and **Greatlaes Trans (K) Limited v Robert Mackoy Limited (Appeal E081 of 2025) [2025] KEELRC,** the court held that: *Regarding the claims for unlawful deductions, the appellant’s case is that are fund was made. However, where the employee is negligent or undertakes their duties in a manner leading to loss and damage to the employer, sections 17 and 19 of the Act allow for a deduction from the wages due.* As analysed above, the appeal is with merit on all grounds. **Accordingly, judgment in Mombasa CMELRC No. E035 of 2023 is set aside in its entirety. Costs of the appeal to the appellant.** **Delivered in open court at Nairobi, this 18th day of May 2026** **M. MBARŨ** **JUDGE** **In the presence of:** Court Assistants: Catherine, Kemboi and Omar ……………………………………………… and …………………………………..…………..