https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1893

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** **APPEAL NO. E249 OF 2025** **BOAZ OMBATI MAIRURA………………….……………. APPELLANT** **-VERSUS-** **MESORA DISTRIBUTORS LIMITED……….…….……RESPONDENT** **(*Being an appeal from the decision and Judgement of Honourable Tom Mark Orlando, Principal Magistrate, delivered on the 19th day of February 2025 in Milimani MCELRC No. E1090 of 2022)*** **JUDGMENT** 1. Through the Memorandum of Appeal dated 29th July, 2025 the Appellant appeals against the whole of the Judgment of Honourable Tom Mark Orlando delivered on 19th February, 2025 on grounds among others that the learned trial magistrate erred in failing to find that the Appellant was terminated unfairly both substantively and procedurally by holding that due process was followed in his termination yet he was never issued with any show cause letter or taken through any disciplinary hearing. That the trial court shifted the burden of proof from the Respondent to the Appellant when he had denied that goods were lost and found and that the only entitlement the Appellant was salary in lieu of notice of Kshs 16,858.00/=. 2. The Appellant prayed that the appeal be allowed with costs and the judgment; decree of Hon. Tom Orlando PM delivered on 19th February, 2015 be set aside and judgment be entered in favour of the Appellant as against the Respondent for the sum of Kshs. 586,019/- as prayed in the claim dated 6th June,2022. 3. The Appeal was disposed of by written submissions. **APPELLANT’S SUBMISSIONS** 1. The Appellant’s Advocates Mokua Ndubi & Co. Advocates filed written submissions dated 29th September, 2025 and Counsel submitted on the duty of the first appellate court which he stated was to re-evaluate evidence and come up with its own finding and in that regard relied on the case of **Selle & another v Associated Motor Boat Co. Ltd.& Others 1968 E. A123** and in **Jabane vs Olenja (1986) KLR 661, 664.** 2. On grounds 1 and 2 counsel submitted that whatever the misconduct an employee was alleged to have committed such an employee was entitled to be heard before any summary action was taken as outlined under section 44 of the Employment Act. That in the absence of meeting these substantive issues and failing to take the Appellant through the procedural processes required in law that are mandatory the resulting dismissal becomes an illegality and was an unfair labour practice contrary to article 41 of the Constitution. Counsel referred the court to the case of **Nathan Ogada Atiagaga v David Engineering Limited (2015) eKLR**. It was further submitted that the Appellant in this case was never issued with any warning, show cause letter, not invited for disciplinary or attended any disciplinary hearing before his termination. That no minutes of hearing were produced by the Respondent who had the burden to produce such documents since they did not exist. 3. Counsel submitted that the Appellant alleged that on 17th November, 2021 while he was busy attending and executing his duties, he was served with summary dismissal letter. That the reasons advanced for his summary dismissal were that he failed to account for goods worth Kshs 135,649/= which he was delivering using motor vehicle registration number KBV 534S. 4. Counsel submitted that the Appellant through his advocates M/S Njagagua & Associates thereafter wrote a demand letter to the Respondent through the letter dated 11th November, 2021 seeking the Appellant’s salary for the months of September and October, 2021 as well as annual leave pay for days worked and that the termination was unfair both substantively and procedurally as there was no valid reason for the Appellant’s termination nor was the procedure followed. 5. Counsel relied on section 45 of the Employment Act on what amounts to unfair termination. Counsel relied on the case of **Walter Anuro v Teachers Service Commission (2013) eKLR** on requirements for both substantive and procedural fairness before termination. That failure to prove one of the tenets would lead to a finding of an unfair termination. 6. Counsel relied on section 43 of the Employment Act on the principle of substantive fairness and the need to prove the reasons for termination. That the reason for the termination being that he was unable to account for goods worth Kshs. 135,649/= which were delivered by the Appellant using motor vehicle registration number KBV 534S was not proved. First there were no record produced by the Respondent showing that the Appellant was in charge of the said vehicle and secondly there was no criminal case against him and further that the OB number produced was just merely an OB number without the offence and who it was against. Therefore, there was no valid reason for termination on this account alone and the Appellant was entitled to the reliefs sought. 7. On the procedural fairness counsel relied on section 41 of the Employment Act and submitted that the Appellant was never heard or his representations heard before he was terminated hence the termination was procedurally unfair. 8. On ground 3 of the appeal, counsel submitted that the trial court erred in finding that the Appellant never denied that he was to account for the goods when the matter proceeded by filed documents. That at paragraph 6 of the Appellant’s witness statement the reason for termination was denied by the Appellant hence the court erred in finding otherwise. 9. On ground 4 counsel relied on section 107 of the Evidence Act on he who alleges must prove and contended that the Respondent had the burden to prove that the Appellant was to account for the goods lost valued at Kshs 135,649/=. That the burden was on the employer to prove that the reason for terminating the employee was a valid reason. Counsel also relied on section 47(5) of the Employment Act on respective burdens of proof between the employer and employee and contended that the burden of justifying the grounds for termination rested with the employer once the employee in this case set a foundation that his termination was unfair. 10. On ground 6 counsel submitted that the trial court erred in finding that the Appellant was only entitled to salary in lieu of notice of Kshs 16,858/= which the court was tacitly admitting that the Appellant’s termination was faulty. That the Appellant was entitled to have his claim dated 6th June, 2022 allowed in its entirety as prayed. **RESPONDENT’S SUBMISSIONS** 1. The Respondent through the Federation of Kenya Employers filed written submissions dated 17th February, 2026 and on the issue of whether the court should set aside the magistrate court’s decision it was submitted that the Appellant was left in charge of delivery of the Respondent’s goods and failed to do so to the detriment of the Respondent. That goods worth Kshs 135,649/= were found to be misappropriated while in the control of the Appellant. It was submitted that the Appellant did not offer any explanation on where the goods were or whether any delivery was made as was required. It was therefore reasonable for the Respondent to believe that the Appellant was culpable and responsible for the said loss. Reliance was placed on the case of **Kenya Revenue Authority v Reuwel Waithaka Gitahi, Ferichina Gathoni Waweru & Gedion Kathila Mutuku(2019) KECA 300 (KLR)** that an employer was not required to undertake a near forensic examination of facts and seek proof beyond reasonable doubt. 2. That the Respondent had a valid and fair reason for terminating the Appellant’s employment and further that he was in charge of delivery of the said goods and as such in a position to be held accountable should the goods be found to have been misappropriated. Concerning the disciplinary process, it was submitted that the Appellant declined to subject himself to the process. That he bolted the moment he was requested to submit his written response to the report on the goods that were not delivered. In this regard, Counsel relied on the case of **Paul Eanyangah v Market Development Trust t/a Kenya Markets Trust** to submit that where an employee squanders the chance to be heard the employer could not be found to have acted unfairly where great effort was taken but the employee was adamant to avoid the hearing. That the Appellant having failed to subject himself to the disciplinary hearing process despite the same being afforded to him, was estopped from alleging any wrongdoing on the part of the Respondent. Hence the Appellant had failed to establish a sufficient cause to disturb the decision of the magistrate court. 3. On the issue of whether the Appellant was entitled to reliefs sought it was submitted that the Appellant did not establish sufficient grounds to justify the grant of the reliefs sought. That he was fairly and lawfully dismissed from employment. That this court should uphold the decision of the magistrate court and dismiss the appeal with costs to the Respondent. **DETERMINATION** 1. The court has considered the grounds of appeal, the record of appeal and submissions filed by the both parties herein and notes that in this case, the judgment of the trial court was that termination of the Appellant’s service was lawful on account of gross misconduct and further that the Appellant was entitled to payment in lieu of notice of Kshs. 16,858.00 since the Respondent proved that the Claimant had been paid all the other dues less the amount of lost goods. The Appellant was further awarded costs and interests of the suit. The Appellant being aggrieved by the judgement appealed the whole of the Judgment raising 6 grounds. The court however will summarize the grounds into two, namely: - 1. *Whether the trial court erred by finding that the Appellant was lawfully terminated on account of gross misconduct* 2. WHEHWWwWhetherWhetherWhe *Whether the trial court erred by not awarding the Appellant his reliefs sought.* 2. Before doing so, the court would like to observe that it is now almost settled law that the duty of the first appellate court is to re-evaluate the evidence in the subordinate court both on points of law and facts and come up with its own findings and conclusions as was held in **Gitobu Imanyara & 2 others v Attorney General [2016] eKLR,** where the Court of Appeal stated that: - *“[A]n appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect”* ***Whether the trial court erred by finding that the Appellant was lawfully terminated on account of gross misconduct*** 1. It is not in dispute that the Appellant was employed by the Respondent on or about October 2019 until he was summarily dismissed on 17th November, 2021 on accusation of failing to account for goods worth Kshs 135,649/= which he was supposed to deliver using motor vehicle registration number, KBV 534S. The matter was reported at Buruburu police station and OB number issued on 22nd November, 2021. The Appellant alleged that he was terminated without fair reasons nor was procedural fairness followed since no warning letter, show cause letter, invitation to disciplinary and disciplinary hearing was produced by the Respondent. 2. The respective burden of proof for the parties is as governed by section 47(5) of the Employment Act where the Appellant ought to illustrate a termination which was unfair occurred and the Respondent to justify the grounds of the termination. The court of Appeal in **Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR** explained this burden as follows: - *14. Section 47 (5) of the Act provides for the procedure to be followed in matters of complaints of unfair termination as follows:* *“(5) 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 of the termination of employment or wrongful dismissal shall rest on the employer.” [Emphasis added]* *So that, the appellant in this case had the burden to prove, not only that his services were terminated, but also that the termination was unfair or wrongful. Only when this foundation has been laid will the employer be called upon under section 43 (1): "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.”* *15. We have carefully examined the testimony of the appellant in relation to the discharge of his evidential burden but we are afraid it does not lay the necessary foundation to require the employer's response under section 43***.** 1. It was upon the Appellant to demonstrate that unfair termination occurred before the Respondent could be called upon to justify the grounds of termination. From the evidence on record on 11th November, 2021 the Appellant wrote a demand letter to the Respondent for his accrued salary and there was no response to the demand letter by the Respondent. What followed was the summary dismissal letter where the Respondent alleged that the Appellant failed to account for goods worth Kshs 135,649/= which he was supposed to deliver using motor vehicle registration number KBV 534S. 2. The court notes that the Respondent relied on section 44(4)(g) of the Employment Act to summarily dismiss the Appellant. The section provides that where an employee commits or on reasonable and sufficient grounds was suspected to have committed a criminal offence against or to substantial detriment of his employer or his employer’s property which would form a gross misconduct, such employee was liable for summary dismissal. 3. The court notes that the Appellant after being summarily dismissed, alleged the same was unfair hence the burden shifted to the Respondent to justify the grounds of termination. It is important to note the sequence of events in this case. The Appellant issued a demand to be paid his accrued salary on 11th November, 2021 and interestingly six days later he was summarily dismissed for failure to account for goods lost around end of September, 2021. The court also notes that despite the matter proceeding by way of documents the Respondent alleged that there was investigation by the disciplinary committee but never produced such investigation report to the court for scrutiny. The Respondent went ahead to produce an OB number which was obtained 5 days after the summary dismissal of the Appellant on 22nd November, 2021 but the same did not show the offence and against who the report was made. No criminal offence was preferred. In the pay slip produced by the Respondent for November, 2021 it showed a deduction of Kshs 134,058.83/= as shorts and not the Kshs 135, 649/= as alleged in the summary dismissal. 4. This court therefore observes that the Respondent was not certain which amount was lost and it had no documents to illustrate that the goods were under control of the Appellant and that they were lost. To the contrary, the Respondent’s allegation that the Appellant was facing disciplinary action when he refused to cooperate was not supported by evidence like a show cause letter or an invite to a disciplinary hearing. Apart from the OB extract from Buruburu Police Station, there was no other document to support the allegation that the Appellant was responsible for any goods allegedly lost or guilty of the theft. The Appellant was. not found with any of the goods allegedly lost. The person to whom the goods were to be delivered did not confirm by evidence or any written correspondence that the good were destined to them but never received them. 5. To this court therefore the Respondent failed to justify the grounds for the termination of the appellant’s service as required under section 47(5) of the Employment Act and further that it failed to prove the reasons for summary dismissal were fair and valid as required by section 43 of the Act hence amounted to unfair termination under section 45. 6. Concerning procedural fairness, the Respondent did not issue any warning letters, any show cause letter or invite the Appellant to disciplinary hearing on account of those charges yet it was alleged that the Appellant failed to give any explanation or cooperate in the disciplinary process but without any evidence of invites, show cause letters among others. 7. This court is awake to the requirement of procedural fairness as envisaged under section 41 of the Employment Act. An employer contemplating termination of service of an employee is by law required to explain to such employee in a language he understands, the charges against him, be given an opportunity to make his representations, appear before a disciplinary hearing with a colleague of their choice among others. In that regard the court is guided by the holding in the case of **Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited [2014] eKLR** that: - *Section 41 of the Employment Act is couched in mandatory terms. Where an employer fails to follow these mandatory provisions, whatever outcome of the process is bound to be unfair as the affected employee has not been accorded a hearing in the presence of their union representative.* 1. The court further notes that despite the crime an employee has been alleged to have committed, the requirement for a fair hearing was mandatory. In the case of **Pius Machafu Isindu vs Lavington Security Guards Limited [2017] eKLR**, the Court of Appeal stated: *“There can be no doubt that the Act, which was enacted in 2007, places a heavy obligation on the employers in matters of summary dismissal (Emphasis mine) for breach of employment contract and unfair termination involving breach of statutory law. The employer must prove the reasons for terminating (section 43) – prove that the grounds are justified (section 47 (5), among other provisions. A mandatory and elaborate process is then set up under section 41 requiring notification and hearing before termination.”* 1. From the foregoing, this court inevitably disagrees with the trial court’s finding that the Appellant was lawfully terminated on account of gross misconduct and find that the Appellant was unfairly terminated in contravention of the mandatory requirements of sections 41, 43 and 47(5) read together. The termination was somewhat retaliatory after the appellant demanded his unpaid salary. ***Whether the trial court erred by not awarding the Appellant his reliefs sought.*** 1. The trial court despite finding that the Appellant was lawfully terminated went on to award him notice pay which was contradictory. A summary dismissal is a dismissal without notice or less notice and once it is found that there was justification for summary dismissal and award of payment in lieu of notice is irregular. This court having reached the conclusion that the appellant was unlawfully terminated, proceeds to examine whether the Appellant is entitled to any of the reliefs sought in the statement of claim. The court has to ascertain the salary payable to the Appellant since the trial court awarded as per the contract of employment which was Kshs 16,585 yet the Appellant alleged that his salary increased to Kshs 19,790/=. Since the matter proceeded on the basis of filed documents, the court will work with the contracted sum of Kshs. 16,585/- The court therefore upholds the notice pay as per section 36 of the Act and as awarded by the trial court. The court also awards the Appellant compensation for unfair termination as provided for under section 49 of the Act and while doing so will take into consideration the fact that the Appellant had worked for two years and he was terminated presumably for requesting for his salary. Further, the appellant was hired as a loader with no special skills and could therefore take up any unskilled work, an award of three months’ salary would be fair compensation in the circumstances. 2. The Appellant was entitled to unpaid salary for the months of September and October 2021 as well as 17 days worked in November since the pay slip shows that he was to receive zero for the month of November. The prayer for house allowance is disallowed as from the pay slip and the employment contract the Appellant was paid the same. 3. The prayer for leave pay for the 2 years the Respondent produced leave application forms for 2020 and 2021 where the Appellant took three days in 2020 and 2 days in 2021. The Appellant was entitled to 10.5 days under the contract which in any case went against the Employment Act which provides for 21 leave days under section 28 of the Act. This meant the Appellant utilized only 5 days in two years hence he is entitled to the balance of 37 days. 4. **In the upshot the decision of the lower court dismissing the appellant’s claim is hereby set aside and substituted with an order allowing the claim as follows: -** 5. **3 months’ salary as compensation for unfair termination @ Kshs. 16,585/- x 3………………………..Kshs 49,755/=** 6. **One month’s salary in lieu of notice ………Kshs 16,585/-** 7. **Salary for September, October and 17 days worked in November, 2021………………………………Kshs 59, 153/=** 8. **Leave pay (37 days)…………………………….Kshs 20,461/=** 9. **Housing allowance…………….….Kshs NIL** 10. **Costs of the appeal and the trial court** **TOTAL…………………………….… KSHS 145,954/=** 1. **It is so ordered.** **Dated at Nairobi this 2nd day of July, 2026** **Delivered virtually this 2nd day of July, 2026** **Abuodha Nelson Jorum** **Presiding Judge-Appeals Division**