https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1536

Muchiri v Jap Assembler Kenya Ltd (Appeal E032 of 2025) [2026] KEELRC 1536 (KLR) (5 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1536 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Machakos Appeal E032 of 2025 JW Keli, J June 5, 2026 Between Charity Muthoni Muchiri Appellant and Jap Assembler Kenya Ltd Respondent (Being an Appeal from the Judgment and Decree of the Hon. B. Ojoo (CM) delivered on 18th September 2024 in Mavoko MCELRC No. E005 of 2023) Judgment 1.The Appellant herein, dissatisfied with the Judgment and Decree of the Hon. B. Ojoo (CM) delivered on 18th September 2024 in Mavoko MCELRC No. E005 of 2023 between the parties filed a Memorandum of Appeal dated the 6th January 2025 seeking the following orders: -a.The Judgement and orders of the Honourable Magistrate issued virtually at Mavoko on the 18th day of September 2024, be set aside in its entirety.b.This Honourable Court finds that the Respondent unfairly terminated the Appellant's employment.c.The Appellant be awarded appropriate reliefs and compensation for unfair termination of employment.d.Costs of this Appeal and the proceedings in the trial court be awarded to the Appellant. Grounds Of The Appeal 2.The Honourable Trial Magistrate erred in law and fact in finding that the Appellant's/Claimant's case fell for want of proof and that, on a balance of probabilities, the Appellant failed to discharge the burden of demonstrating that the Respondent unfairly terminated her employment. 3.The Honourable Trial Magistrate erred in law and fact in concluding that the Respondent informed the Appellant of the complaints against her and invited her to a disciplinary hearing. 4.The Honourable Trial Magistrate erred in law and fact in finding that the Appellant received show-case letters and notices to attend disciplinary hearings on the 13th, 14th and 28th of December 2022. 5.The Honourable Trial Magistrate erred in law and fact in by holding that the Appellant was summoned on several occasions to attend hearings and provide her side of the story but failed to do so, thus failing to critically evaluate the Appellant's assertions and explanations for her absence. 6.The Honourable Trial Magistrate erred in law and fact in finding that the Respondent satisfactorily demonstrated efforts to reach the Appellant, claiming that the Appellant abandoned work without notice which contradicts the Appellant's evidence. 7.The Honourable Trial Magistrate erred in law and fact in concluding that the Appellant was not dismissed but rather terminated her contract by absconding from work, a position that is unsupported by facts and evidence presented. 8.The Honourable Trial Magistrate erred in law and fact by accepting the Respondent's witness testimony and records purporting to show attempts to reach the Appellant, without critically evaluating the veracity and credibility of such evidence. Background To The Appeal 9.The Claimant/Appellant filed a claim against the Respondent vide a statement of claim dated the 26th of January 2023 seeking the following orders: -a.A declaratory order that the summary dismissal was unfair and unlawful;b.A declaratory order that that the Respondent grossly violated the Employment Act, 2007 and Claimant's labour rights.c.An order compelling the Respondent to pay the Claimant in compensation for discrimination violation of her rights under Article 27(1), 41 and 47 of the Constitution of Kenya, 2010.d.An order that the Respondent be compelled to pay to the Claimant:i.Kshs 700,008 being 12 (twelve) months' gross salary at Kshs 58, 334/- per month in compensation for the unfair termination of employment.ii.Kshs 58,334 being l (one) month's salary in lieu of notice.(iii)Kshs 25,285 being unpaid leave days.(iv)General damages.(v)Costs of the Claim.(vi)Interest on (i), (ii), (iii) and iv) above(vii)Any other order the court may deem fit to grant.(pages 5-8 of Appellant’s ROA dated 24th July 2025) 10.In support of her claim, the Claimant filed her list of documents dated 26th January 2023 (pages 9-18 of ROA) and witness statement of even date. The Claimant later filed a further list of documents dated 26th June 2024 (pages 54-56 of ROA). 11.The Respondent entered an appearance and filed a response and counterclaim dated 15th March 2023 (pages 19-22 of ROA). In support of their response, the Respondent also filed a witness statement of ELIZABETH KARANJA dated 22nd June 2023; and list and bundle of documents dated 11th July 2023 (pages 23-53 of ROA). 12.The Claimant/Appellant’s case was heard on the 4th of July 2024, with the Claimant testifying in the case as PW1. She relied on her filed witness statement as her evidence in chief, and produced her documents as exhibits. She was cross-examined by counsel for the Respondent Mr. Mugenyu (pages 83-87 of ROA). 13.The Respondent’s case was equally heard on the same day, with the Respondent calling one witness, ELIZABETH NJERI KARANJA, to testify on its behalf as DW1. She relied on her filed witness statement as her evidence in chief, and produced the Respondent’s documents as exhibits. She was cross-examined by counsel for the Claimant/Appellant, Mr. Mundia (pages 88-91 of ROA. 14.Following directions by the trial court that the parties file submissions, they complied. 15.The Trial Magistrate Court delivered its judgment on the 18th of September 2024, dismissing the Claimant’s case in its entirety, with an order that the Claimant issue the Respondent with an official apology letter for her conduct within 30 days of the Judgment, after which she should be furnished with a Certificate of Service. On costs, the court ordered that each party should bear their own costs (judgment on pages 74-76A of ROA). Determination 16.The appeal was canvassed through written submissions. Both parties filed. Issues for determination 17.In her submissions dated 6th January 2026, the Appellant identified the following issues for determination:-i.Whether the learned Magistrate erred in law and fact in finding that the Appellant failed to prove unfair termination.ii.Whether the Respondent complied with the mandatory procedural requirements under section 41 of the Employment Act.iii.Whether the allegation of work abandonment or desertion was proved to the required legal standard.iv.Whether the Appellant is entitled to the reliefs sought. 18.The Respondent filed submissions dated 5th February 2026 where they identified the following issues for determination:-i.Whether the Learned Magistrate erred in law and fact in finding that the Appellant failed to prove unfair termination;ii.Whether the Respondent complied with the mandatory procedural requirements under section 41 of the Employment Act; andiii.Whether work abandonment was proved. 19.The court finds consensus among the parties on the issues for determination in the appeal to be –a.Whether the learned Magistrate erred in law and fact in finding that the Appellant failed to prove unfair termination.b.Whether the allegation of work abandonment or desertion was proved to the required legal standard.c.Whether the Appellant is entitled to the reliefs sought. Whether the learned Magistrate erred in law and fact in finding that the Appellant failed to prove unfair termination. 20.At the outset the court points out that fair termination of employment is one based on valid reason (section 43 and 45 of the Employment Act )and procedural fairness under section 41of the Employment Act. The threshold for determination of fairness of termination of employment is according to the provisions of section 45 (2) of the Employment Act to wit:- ‘45(2) A termination of employment by an employer is unfair if the employer fails to prove—(a)that the reason for the termination is valid(b)that the reason for the termination is a fair reason—(i)related to the employees conduct, capacity or compatibility; or(ii)based on the operational requirements of the employer; and(c)that the employment was terminated in accordance with fair procedure.’’ To pass the fairness test the termination must pass the substantive (in terms of reasons) fairness and the procedural fairness under section 41 of the Employment Act (Walter Ogal Anuro v Teachers Service Commission[2013]eKLR). 21.The grounds of the appeal under the issue were –a.The Honourable Trial Magistrate erred in law and fact in finding that the Appellant's/Claimant's case fell for want of proof and that, on a balance of probabilities, the Appellant failed to discharge the burden of demonstrating that the Respondent unfairly terminated her employment.b.The Honourable Trial Magistrate erred in law and fact in concluding that the Respondent informed the Appellant of the complaints against her and invited her to a disciplinary hearing.c.The Honourable Trial Magistrate erred in law and fact in finding that the Appellant received show-case letters and notices to attend disciplinary hearings on the 13th, 14th and 28th of December 2022.d.The Honourable Trial Magistrate erred in law and fact in by holding that the Appellant was summoned on several occasions to attend hearings and provide her side of the story but failed to do so, thus failing to critically evaluate the Appellant's assertions and explanations for her absence.e.The Honourable Trial Magistrate erred in law and fact in finding that the Respondent satisfactorily demonstrated efforts to reach the Appellant, claiming that the Appellant abandoned work without notice which contradicts the Appellant's evidence.f.The Honourable Trial Magistrate erred in law and fact in concluding that the Appellant was not dismissed but rather terminated her contract by absconding from work, a position that is unsupported by facts and evidence presented.g.The Honourable Trial Magistrate erred in law and fact by accepting the Respondent's witness testimony and records purporting to show attempts to reach the Appellant, without critically evaluating the veracity and credibility of such evidence. 22.This being a first appellate court, it was held in Selle v Associated Motor Boat Co. [1968] EA 123 that:- “The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the 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 allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.” 23.The prove of employment claims is as per section 47(5) of the Employment Act to wit- ‘For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer.’ 24.The appellant in discharge of her burden of proof alleged that she was summarily dismissed from employment on 12 November 2020, at 6pm, by the Managing Director on the allegation of diverting clients. (page 6 of ROA was the statement) In support of her claim, the appellant produced the employment contract dated 17th November 2020, terms of employment, a letter of renewal of contract dated 18th July 2022 and a demand letter (page 9 of ROA was the list of documents). The court noted the contract was renewed to 16th November 2022. The appellant further produced a copy of her payslips and P9 for the year 2023(page 54 of ROA was the further list of documents). 25.Conversely, the respondent denied the entire claim and added that on 4th December 2022, the appellant was summoned by the director, who informed her of a complaint that had been received against her from a customer. The respondent stated the employment was not summarily dismissed. That the appellant was issued with a notice to show cause on 13th December 2022. She was given until 23rd December 2022 to respond, and a disciplinary hearing was scheduled for 27th December 2022, but the appellant refused to show cause. On failing to show up, the respondent offered to reschedule the disciplinary hearing, but the appellant never showed up for work. The respondent counterclaimed for notice pay. (see response at pages 20-21 of ROA). In support of the response were documents filed namely- the contract dated 20th November 2020, complaint received from the customer regarding the claimant’s/appellant’s conduct dated 4th December 2022, extracts of WhatsApp communication between the appellant and a customer, copy of notice to show cause of 13th December 2022 and of 28th December 2022(page 26 of ROA was the list of the documents). 26.During cross-examination, the appellant admitted knowledge of the communication on WhatsApp produced by the respondent. She denied having kept the communication a secret. The appellant stated that she was summoned by the respondent on the 6th December 2022, and that was the day she was dismissed from employment. The court on review of the evidence before the trial court established that the date for dismissal in the claim was 6th November 2022, and there was no amendment at trial. The appellant told the trial court the email produced looked like a communication between her and the customer. She denied having seen the letter; she admitted the email address was hers. She denied ever attending a hearing or receiving a show cause. On re-examination, the appellant told the trial court that the contract was to expire in December 2022, but she continued working. She denied referring clients to a competitor. The appellant told the trial court that she was escorted off the premises and, on the following day, stopped at the gate. 27.The defence witness was one Elizabeth Njeri Karaja, who told the trial court at cross-examination that their customer had complained of incessant calls from the appellant trying to secure business for a competitor, which she did not disclose. The appellant was given a chance to give her side of the story, she left work on the 4th December 2022. She came to the board room and the show cause was read to her( see page 51 of ROA of the witnesses). She refused to sign the letter; the appellant continued to receive nil payslips as she was still in the system. 28.The trial court held the appellant did not prove her case of unfair termination on the balance of probabilities. Having re-evaluated the evidence before the trial court, I agreed with the trial court for the following reasons:- the alleged date of termination in the statement of claim of 6th November 2022 was contradicted by the appellant at trial when she admitted that on 4th December 2022, she was at work. The appellant admitted the email addresses used by the respondent to send the show cause was hers, yet did not respond. The appellant admitted having exchanged communication as produced with the customer, who alleged she was trying to divert his business with the respondent to a competitor. The payslip indicated the allowance was never removed from the payroll. The court holds that the appellant did not discharge her burden to prove the termination as stated in section 47(5) of the Employment Act. The trial court’s decision was based on facts before the court as re-evaluated above and the law, and is upheld. Whether the allegation of work abandonment or desertion was proved to the required legal standard. 29.The appellant submitted that the burden was not met by the respondent and relied on an authority that the court did not trace. Nevertheless I agreed with the submission by the appellant that the employer in defence of desertion had to prove efforts to contact the employee and require then to resume duty and accord them opportunity to explain their absence. This is consistent with persuasive decision in Simon Mbithi Mbane v Inter Security Services Limited [2018] KEELRC 2234 (KLR) where the court observed- ‘8 An allegation that an employee has absconded duties calls upon an employer to reasonably demonstrate that efforts were made to contact such an employee without success.’ The trial court found that the emails of notice to show cause were sent to email of the appellant. The appellant admitted that it was her email. At trial, the appellant did not prove that the emails bounced. I find the employer demonstrated effort to contact the appellant and met the threshold of proof of absconding as per the foregoing jurisprudence. 30.In the upshot I found no basis to interfere with the decision of the trial court. It was held in Mbogo V Shah [1968] EA Page 93 - “I think it is well settled that this court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.’’ I upheld the decision of the trial court in entirety. The appeal lacked merit and is dismissed with costs to the respondent. 31.It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 5TH DAY OF JUNE, 2026.JEMIMAH KELI,JUDGE.In The Presence Of:Court Assistant: OtienoAppellant- Mundia –Respondent – Wekesa h/b Mugenyu