https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2403

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **APPEALS DIVISION** **ELRC APPEAL NO. E065 OF 2025** BETWEEN CHARLES OTIENO ONGORO...…………………….……...APPELLANT -AND- SGA GUARDING LIMITED…………………….…….1ST RESPONDENT SGA KENYA LIMITED…………………………….….2ND RESPONDENT (Being an Appeal against part of the judgement issued by the Honourable Tom Mark Orlando delivered on 6th February, 2025 in Milimani C.M.E.L.R. Cause No. E690/2024) JUDGMENT *(Before Hon. Justice Abuodha Jorum Nelson)* 1. Aggrieved by the Judgment of Hon. Tom Mark Orlando delivered on 6th February, 2024, the Appellant filed the instant appeal appealing against a part of the judgement vide a Memorandum of Appeal dated 4th March, 2025. 2. The brief facts of the case before the trial court are that the Appellant was employed by the Respondents in November 2007 as a security guard before he was summarily dismissed by the Respondents on the 19th of May, 2023. 3. The Appellant’s case was that on 15th May 2023 he received a notice of suspension suspending him for allegedly stealing avocados. The Appellant’s claim was that he never stole any avocados, he was never issued with a notice to show cause, he was called by the Respondents in the late hours of the 17th of May 2023 to abruptly attend a disciplinary hearing that was scheduled the next day on 18th May 2023 without being afforded an opportunity to prepare for the hearing and summarily dismissed shortly thereafter. 4. On the other hand, the Respondents maintained that the Appellant's dismissal was fair and lawful. It was their case that the Appellant was found stealing avocados on 12th May 2023. Following the incident, he was suspended on 15th May 2023 after the Respondents received a complaint from their client. The Respondents further stated that the Appellant was called to their offices and asked to give his account of what had transpired. They maintained that the Appellant wrote a handwritten statement dated 15th May 2023 in which he admitted taking the avocados and asked for forgiveness. 5. Thereafter, the Respondents issued the Appellant with a suspension notice. That they notified the Appellant that a disciplinary hearing was to be undertaken, informed him of his right to be accompanied by a representative and invited him to the hearing before the end of his suspension. After the hearing, the Claimant was issued with a letter dismissing him summarily dated 19th May 2023. When the Appellant was informed of his right to appeal, he did so and the Respondents upheld the decision to summarily dismiss him due to prior incidents of theft. 6. After considering the respective cases and submissions by counsel, the learned trial magistrate found that the termination of the Appellant’s employment was fair and lawful on account of gross misconduct. The trial court found that the Appellant was entitled to working 22 public holidays Kshs. 33,105.40, Salary in lieu of notice Kshs. 18,543 x 28/30 Kshs.17,306. Total Kshs. 68,864.40. 7. This is the judgment appealed against by the Appellant. 8. The learned trial magistrate was faulted on the following grounds: 1. *That the trial magistrate erred in law and fact by holding that the termination of the Appellant was fair yet the termination did not follow the procedural requirements as laid out in the Employment Act.* 2. *That the trial magistrate erred in law and in fact by failing to appreciate that the Respondents did not follow due process in issuing notice to show cause, conducting a disciplinary proceedings and appeal process in the termination of the Appellant employment.* 3. *That the trial magistrate erred in law and in fact in holding that the termination of the appellant was fair, yet the termination did not follow the procedural requirements as laid out in the Employment Act.* 4. *That the trial magistrate erred in law and in fact by failing to appreciate that the Appellant was never issued with a notice to show cause as required by law and that the suspension letter that was issued by the Respondents did not meet the requirements of a notice to show cause.* 5. *That the trial magistrate erred in law and in fact by holding that the suspension letter constituted a notice to show cause.* 6. *That the trial magistrate erred in law and in fact by not considering the threshold of evidence presented before the disciplinary committee to prove the allegations that the appellant had stolen avocados.* 7. *That the trial magistrate erred in law and in fact by failing to appreciate that the Appellant was never provided the opportunity and the right to cross-examine his accusers, present his witnesses and be represented by an advocate.* 8. *That the trial magistrate erred in law and in fact by holding that the termination was lawful on account of gross misconduct.* 9. *That the trial magistrate erred in law and in fact by failing to take into account the submissions of the parties in reaching his decision.* 9. In sum, the learned trial magistrate was faulted on appreciation of evidence, submissions and findings. 10. The Appellant prayed that the Appeal be allowed and the Judgment of the learned trial Magistrate holding that the termination of the Claimant was lawful on account of gross misconduct be set aside; that this Honourable Court be pleased to order that the termination from employment was unlawful and in total contravention of the Constitution of Kenya 2010, Employment Act 2007 and the rules of natural justice; That this Honourable Court be pleased to grant compensation for wrongful termination for 12 months being Kshs. 24,648 x 12 months=Kshs. 295,776; and the costs of this Appeal and the costs for the trial court be awarded to the Appellants. 11. The Appeal was disposed of by written submissions. **APPELLANT’S SUBMISSIONS** 1. The Appellant’s Advocates Gekonge Momanyi & Associates LLP filed written submissions dated 23rd February, 2026 and on the issue of whether the Appellant’s employment was unfairly terminated, Counsel submitted that the Learned Trial Magistrate ignored the fact that a Notice to Show Cause was never issued. He stated that Section 41 of the Employment Act provides for notification before termination on grounds of misconduct. That at trial, the Respondent’s Human Resource Manager testified in court that a notice to show cause was never issued to the Appellant but that what was issued was a notice of suspension referred to on page 41 of the Record of Appeal. That the notice of suspension did not ask the Appellant to show cause, did not indicate when he would appear before a disciplinary committee only that the Appellant was suspended until the 25th of May 2023. 2. It is the counsel’s submission that the Learned Magistrate gravely misdirected himself in finding that the suspension notice constituted a valid notice to show cause. He relied on the case of ***Nicholus Muasya Kyula v Farmchem Ltd [2012] Keelrc 125 (Klr)*** by Justice Byram Ongaya on the particulars of a notice to show cause. 3. Counsel also submitted that the Appellant was arbitrarily summoned to a disciplinary committee without being issued a notice to show cause, he appeared before the committee unprepared. That even though the Appellant had written an apology letter, he was not provided the opportunity to explain the circumstances surrounding the allegedly stolen avocados, or given the opportunity to cross examine the colleague who reported that he took the avocados. 4. Counsel relied on the case of ***Faith Jedida Njoki v Bidwood Suites Hotel Limited [2021] eKLR Cause 1197 of 2017*** which outlines the process for fair termination. 5. On the issue of whether the Respondentshad a valid reason to terminate the Appellant. Counsel, relying on the cases of ***Kenya Power & Lightining Co. Ltd vs Aggrey Wasike [2017] eKLR***, ***Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others [2019] eKLR*** and **Section 43 of the Employment Act** submitted that no evidence was given at trial that the Appellant stole the avocados, that the Appellant only picked two avocados that he had fallen to the ground or intended to take them away from the station. It was further submitted that the Respondents accepted the account by a fellow security guard without giving the Appellant an opportunity to respond and that there was no complaint from the client. 6. That if the Respondents believed that the Appellant was a thief the why did the Appellant remain on duty at the station following the incident on the nights of 12th, 13th and 14th of May 2023. That the Appellant did not understand the gravity of the letter or had legal advice and was coerced into writing the letter on the belief that it would settle the matter. 7. That the letter was written after meeting one Mr. Maluti proves that there was an imbalance of power. That the letter was not a confession as it only says that the Appellant took the avocado. That there is no evidence of the theft and picking two avocados is not a reasonable ground to terminate employment. He relied on the cases of ***Pius Machafu Isindu vs Lavington Security Guards Limited [2017] (KLR)*** and ***Janet Nyandiko vs Kenya Commercial Bank Limited [2017] eKLR***. That on that basis the termination was not valid. 8. On the issue of whether procedural justice was done, Counsel submitted that when the incident occurred, the Appellant was told to see Mr. Maluti, the manager, he was ordered to write an apology and then issued with a suspension letter suspending him from the 15th May 2023 to the 25th May 2023 and abruptly summoned on the 18th May 2023 to come to the Respondents’ office without any notice and placed before the Disciplinary Committee all without a notice to show cause in complete disregard to **Section 41 of the Employment Act**. 9. That the Respondent’s investigation report at page 57 of the Record of Appeal shows that the conclusion of the investigations was done on the 20th of May 2024 yet the Appellant was suspended on the 15th of May 2023, called to attend the disciplinary hearing on the 17th of May 2023, appeared for the hearing on 18th May 2023 and dismissed on the 19th of May 2023. 10. Furthermore, Counsel submitted that the disciplinary meeting minutes at page 60 of the Record of Appeal also showed that it was only the Appellant who appeared, there are no record of any documents relied on, whether the Appellant was asked to respond, whether the colleague who raised the initial complaint ever appeared before the panel. He believed that the disciplinary tribunal was pre-determined. 11. On the issue of whether the appeal process was fair, counsel submitted that the panel was not impartial. The appeal panel comprised persons who had participated in the disciplinary process, such as Robina Janet who was had been part of the panel during the disciplinary hearing, the investigation officer, who was a witness at trial also sat in the appeal. Julia Kamuyu, who investigated the incident and compiled the report was also part of the panel. Furthermore, the appeal did not interrogate the decision of the disciplinary hearing, it only concluded that the Appellant’s file was dirty and considered issues that he had not been asked to defend during the disciplinary hearing. 12. On the issue of whether the Appellant was entitled to the reliefs sought, counsel submited that the Appellant was entitled to compensation for a period of 12 months, being Kshs. 295,776 and on the issue of who should bear the cost of the appeal, counsel prayed that he be awarded the costs of this appeal. **RESPONDENTS’ SUBMISSIONS** 1. The Respondents’ Advocates Olao & Rai Advocates filed written submissions dated 18th March, 2026 and on the issue of whether the trial magistrate erred in law and in fact in finding that the termination of the Appellant was fair and followed the due process, Counsel submitted that process was fair, the evidence produced during trial shows that the Appellant was duly notified of his gross misconduct through a notice of suspension dated 15th May 2023 which clearly informed the Appellant that the reason for the suspension was stealing avocados at NRC on 12th May 2023, the same being admitted by the Appellant at the hearing. 2. That the Appellant was invited to a disciplinary hearing on the 18th of May 2023 where he attended and admitted to having stolen the avocados. Following he decision, the Appellant was given the right to appeal, page 63 of the Record of Appeal which meeting was held on 7th November 2023. His appeal was rejected on account of previous incidences of misconduct and theft. 3. Counsel submitted that the trial magistrate correctly evaluated the evidence on record, he relied on the following cases of ***Kariuki v Trustees of Premier Academy Charitable Trust t/a Premier Academy [2025] KEELRC 144 (KLR)***, ***Kenya Revenue Authority vs Reuwel Waithaka Gitahi & 2 others [2019] KECA 300 (KLR)***, ***CFC Stanbic Bank Ltd v Mwakuwona (Civil Appeal 3 of 2014) [2015] KECA 919 (KLR)(12 February 2015) (Judgement).*** 4. On the issue of whether the trial magistrate erred in law and in fact in failing to appreciate that the Appellant was never issued with a notice to show cause, counsel submitted that Section 41 of the Employment Act does not describe a specific format or title for a notice to show cause. The suspension letter issued clearly set out the allegations forming the basis of the contemplated disciplinary action. It communicated the reasons for the suspension and invited the Appellant to respond. The letter met the procedural requirements contemplated under Section 41 of the Employment Act. 5. On the issue of whether the trial magistrate erred in law and fact by not considering the threshold of evidence presented before the disciplinary committee to prove the allegations of stealing, counsel submitted that the learned trial magistrate properly evaluated the evidence placed before it and correctly found that the Respondents had established a valid and fair reason for termination under Section 43 and 45 of the Employment Act. 6. It was submitted that during the disciplinary hearing the Appellant admitted to the allegation of stealing, this admission constitutes direct and sufficient evidence upon which the Respondents were entitled to form reasonable belief that the misconduct had occurred. The disciplinary committee therefore acted within the confines of the law in recommending termination. He relied on the case of ***Evans Kamadi Misango v Barclays Bank of Kenya Limited [2015] KEELRC 1189 (KLR)***. 7. In relying on the case of ***Carepay Limited v Afundi [2026] KEELRC 155 155 (KLR)***, it was submitted that the employment disputes are civil in nature, the standard of proof is on a balance of probability and not proof beyond reasonable doubt. Once the employer demonstrates that there was reasonable and sufficient grounds to believe that the employee had misconduct, the threshold under Section 43 and 45 of the Employment Act 2007 is satisfied. 8. Furthermore, it was submitted that the gravity of the misconduct is not diminished by the value of the item involved. Counsel believed that the learned trial magistrate could not therefore be said to have erred in law and in fact. 9. On the issue of whether the learned magistrate erred in law and fact in failing to appreciate that the Appellant was never provided the opportunity and the right to cross-examine his accusers, present his witnesses and be represented by an advocate, Counsel submitted that the Appellant was accorded a fair and disciplinary process in compliance with Section 41 of the Employment Act. It was submitted that the Act does not confer a right to cross examine witnesses or to be represented by an advocate during a disciplinary hearing, the hearing is an administrative procedure not a criminal trial. **Section 41(2) of the Employment Act** required that an employee be informed of the allegations against him and be given an opportunity to respond. The Appellant was issued with a suspension letter clearly setting out the allegations of stealing and was invited to attend a disciplinary hearing where he was afforded the opportunity to present his response. 10. On the issue of whether the learned trial magistrate erred in law and in fact in holding that the termination of the Appellant’s employment was lawful on account of gross misconduct, Counsel submitted that that gross misconduct is recognized under employment law as conduct which fundamentally undermines the employment relationship, including acts such a theft, dishonesty, or serious breach of duty. Counsel reiterated that at the disciplinary hearing, the Appellant appeared and admitted to the allegation of stealing, this admission constituted direct evidence of gross misconduct and provides a lawful and fair basis for termination. 11. On the issue of whether the learned trial magistrate erred in law and in fact in failing to take into account the submissions of the parties in reaching his decision, counsel submitted that the record showed that the learned magistrate assessed the arguments of the Appellant regarding notice to show cause, disciplinary procedure, opportunity to respond and allegations of misconduct. Therefore, there was no merit in the Appellant’s assertions. **DETERMINATION** 1. The court has considered the record of appeal, the detailed submissions filed by the both parties herein as well as the authorities reaffirms that it is now 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 held in **Court of Appeal for East Africa in Peters –vs- Sunday Post Limited [1958] EA 424**. The appropriate standard of review established in cases of appeal can be stated in three complementary principles: *i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;* *ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and* *iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.* 1. The court has reframed the Appellant’s 11 grounds of appeal into three issues which are: - * 1. *Whether the trial magistrate erred in law and in fact in holding that the Appellant’s termination was fair, procedural and lawful.*WHEHWWwWhetherWhetherWhe 2. *Whether the trial court erred in law and in fact in finding by not finding that the Appeal process was unfair and biased.* 3. *Whether the trial court erred by not awarding the Appellant compensation for unfair termination terminal dues and reliefs sought* ***Whether the trial court erred in finding that the Appellant was lawfully terminated.*** 1. It is not in dispute that the Appellant was working as Security Guard in 2007 until 19th May 2023 when he was summarily dismissed by the Respondents for gross misconduct for allegedly stealing avocados. It is trite law that for a termination of employment to pass the fairness test the employer must prove that it had a substantive justification to do so and conducted the termination in accordance with a fair procedure and provided under section 45 of the Employment Act. 2. Regarding the reason for termination, the standard is set out in **Section 43 of the Employment Act**, which provides as follows: 3. *In any claim arising out of termination of contract, the employer shall be required 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.* 4. *The reason or reasons for termination of contract are the matters that the employer at the time of termination of the contract genuinely believed to exist, and which caused the employer to terminate the services of the employee.* 5. On whether the Respondents had a valid reason to dismiss the Appellant, the Respondents provided evidence of a statement written by the Appellant detailing the accounts for the event. In the said statement the Appellant was seeking forgiveness for having avocados. The court notes that the Appellant did not confess that he had stolen the avocados however, he does admit to having possession of the avocados. Was this enough to pass the reasonable test? The Court in the case of ***John Jaoko Othino v Intrahealth International [2022] eKLR***, while relying on the test of reasonableness set out by Lord Denning in the case of British ***Leyland UK Ltd vs Swift (1981)***, held that the test of reasonableness would be to answer the question, was it reasonable for the employer to dismiss the employee? And proceeded to state that if no reasonable employer would have dismissed the employee, the dismissal would be unfair, but if a reasonable employer might reasonably dismiss him, then the dismissal would be fair. Deducing from the above, the court is satisfied using the reasonable test that there was a valid reason upon which the Appellant’s dismissal was premised on. 6. Regarding procedure for termination, section 41 of the Employment Act outlines the minimum standards of a fair procedure that an employer ought to comply with. It provided as follows: - 7. *Subject to Section 42 (1), an employer shall before terminating the employment of an employee, on the grounds of misconduct; poor to performance or physical in capacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.”* 8. *Notwithstanding any other provision of this part, an employer shall, before terminating the employment of an employer or summarily dismissing an employee under Section 44 (3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, chosen by the employee within subsection (1) make.”* 9. Furthermore, to satisfy the requirements of Section 41 of the Employment Act, the court in ***Hosea Akunga Ombwori v Bidco Oil Refineries Limited (2017) eKLR*** had this to say: *“To satisfy the requirements of Section 41 of the Employment Act, 2007, an employer issues what is called in ordinary parlance a show cause notice/letter. Such a letter or notice should outline the allegations or charges against the employee and also request him to respond within a reasonable time. The notice also ought to inform the employee that disciplinary action which might lead to termination of employment is under consideration. In other words, the notice should be set out in clear terms”.* 1. It is the Appellant’s argument that before the Respondents conducted the disciplinary hearing on 18th May 2023, they never issued him a notice to show cause. This fact is not denied by the Respondent. However, what the Respondents believe was that the suspension letter was an adequate substitute to the notice show cause, a view that this court does not associate itself with. 2. The elements of procedural fairness have been itemized in a cache of decisions including the Court of Appeal decision in ***Postal Corporation of Kenya V Andrew K. Tanui [2019] eKLR*** where the court identified them as follows; explanation of the grounds of termination in a language understood by the employee, the reasons for which termination of employment was being considered, entitlement of the employee to the presence of another employee of his choice or shop floor representative when the explanation of the grounds of termination is made and hearing and considering any representations by the employee and the person chosen by the employee. 3. The court has examined the contents of the suspension notice dated 15th May 2023 and noted that while it sets out the reasons for the suspension, it did not call upon the Appellant to respond to the issues informing his suspension or invite the Appellant to a disciplinary hearing despite the Respondents claiming the same. It completely falls short of a notice to show cause. The purpose of a notice to show cause as explained in the case of ***Modern Mail Ltd v Otieno (Appeal E085 of 2025) [2026] KEELRC 145 (KLR) (28 January 2026) (Judgment)*** is; *“to provoke the employee to reduce his/her response into writing and it is the basis on which the employer determines whether or not a hearing is necessary. Indeed, a response to the notice to show cause often terminates the contemplated disciplinary process. It is therefore essential for the employer to accord the employee reasonable time to respond to the notice to show cause and prepare for the hearing****.*** 1. It is the court’s finding that the learned magistrate erred in fact and in law in failing to find that the disciplinary process was procedurally unfair, owing to the absence of a Notice to Show Cause. Furthermore, the court has reviewed the evidence on record, the chronology of events ensuing the entire disciplinary process conducted by the Respondents showed that the Appellant was found to have allegedly stolen avocados on 12th May 2023, he was issued a suspension notice on 15th May 2023, on 17th May 2023 he was notified of a disciplinary hearing through a call by one Ms. Julia Kemairu, the Respondents’ Investigating officer, a fact she admitted during the trial then consequently, conducted a hearing the following day on 18th May 2023. 2. The question that therefore falls for determination is whether, the hearing component of the disciplinary process complied with the requirements of **Section 41 of the Employment Act**, the **Fair Administrative Action Act**, **Article 50 of the Constitution**, and the rules of natural justice. The court record bears minutes dated 18th May 2023, and an investigation report on the charges levelled against the Appellant. Court has observed that that the Respondents’ investigation report was concluded on 20th May 2024 yet the same was relied upon in the hearing done on 18th May 2023 and also relied upon in dismissing the Appellant on the 19th of May 2023. 3. While this in itself raises major concerns on the integrity of the process, the real issue, however, is whether the Appellant was afforded adequate time to prepare for the hearing. The court finds that not only did the Respondents not inform the Appellant beforehand of the intended disciplinary proceedings, but when they eventually did decide to conduct a hearing, they called the Appellant on the 17th of May 2023 to inform him that the hearing that was to be conducted the next day on 18th May 2023. It is difficult for this court to conceive how the Appellant could, within such a short period, organise a defence, secure any representation, gather any relevant witnesses or documents, and attend the hearing mentally prepared. I therefore align myself with the sentiments in ***Omondi v Technical University of Kenya (Employment and Labour Relations Cause 589 of 2018) [2024] KEELRC 2421 (KLR) (26 September 2024) (Judgment)*** where it was held; *“I have really agonized over what informed the Respondent’s decision to bring forward the hearing date suddenly without prior information to the Claimant, I see none, and I hold that the one that the Respondent’s witness attempted to advance with due respect, makes sense. The decision was arbitrary, and one that cared not, that a disciplinary hearing requires mental preparedness on the part of the affected employee. Employers shouldn’t therefore be allowed to ambush employees with disciplinary hearings.”* 1. Similarly in ***Modern Mail Ltd v Otieno (Appeal E085 of 2025) [2026] KEELRC 145 (KLR) (28 January 2026) (Judgment)*** it was held that; *“The disciplinary is not a mechanical process nor is it conducted to tick the boxes. It is a legally prescribed process designed to ensure fairness of termination of the employment contract. In this case, the Respondent was accorded less than one (1) day to respond, prepare and attend a hearing which implicated the procedural fairness of the process.* *In the court’s view, and as already observed elsewhere in this judgment, the trial court cannot be faulted for having stated that the process was conducted hurriedly as it was a factual observation. Relatedly, the notice to show cause dated 23rd February 2026 did not inform the Respondent that he had the right to be accompanied by a fellow employee of his choice, could call witness and had the right to cross-examine witnesses, if any. This was a serious omission and again implicated the fairness of the process and in particular the right to be heard of which fair hearing is part. The fact that the appellant did not inform the Respondent of his rights and did not accord him reasonable time to respond to the notice to show cause, the nature of the charge notwithstanding, impaired his right to fair hearing.”* 1. The Court now turns to the question of whether the Appellant was entitled to cross-examine witnesses during the disciplinary hearing. It is the court’s view that an allegation was brought against the Appellant by a fellow colleague which formed the basis of the charges preferred against him, therefore the Appellant had every right to cross-examine his accuser. I am guided by the case of ***BATUK Unit Kenya v Mutahi (Civil Appeal 214 of 2018) [2023] KECA 1417 (KLR) (24 November 2023) (Judgment)*** where it was held that; “*The rules of natural justice apply at any level where a person’s fundamental rights are likely to be violated. The Respondent was put through a process that was to determine whether his right to earn a livelihood would be taken away from him, yet he was not given an opportunity to face his accusers at the disciplinary hearing.* *The decision to terminate him was arrived at in total disregard of his right to due process. In view of this, we are persuaded that the reason for the termination was not proved to be valid. We further find that the process followed to arrive at that decision was un procedural and unfair.”* 1. In the upshot the court finds that the trial court was not justified in finding that the Appellant was lawfully terminated both substantively and procedurally. ***Whether the trial court erred in law and in fact in not finding that the Appeal process was unfair and biased.*** 1. The Court has carefully considered the manner in which the appeal was conducted. It is not disputed that once the Appellant was dismissed on 19th May 2023, he appealed against the decision. However, it is the Appellant’s claim that that Learned trial magistrate completely ignored this as an issue and the fact that the appeal was considered in his absence, without notice of when it would be heard, he was not told that the panel would meet and deliberate on his appeal and that the decision was only communicated to him six months after he lodged his appeal. 2. The court has considered this as an issue. An appeal by its very right is intended to provide an employee with an independent review of the disciplinary decision. Handling of any appeal, carries the same test of procedural fairness, as the primary hearing. After a careful review of the evidence of the minutes of the Appeal, it is the court’s finding that the appellant was not afforded a fair opportunity to prosecute his appeal. 3. Furthermore, the appeal was heard by persons who had participated in the disciplinary process. For example, Ms. Robina Janet, who sat on the disciplinary panel, also sat on the appeal panel, while Ms. Julia Kemairu, who investigated the allegations against the Appellant, was likewise a member of the appeal panel. In those circumstances, the Court cannot find that the Appellant was accorded a fair and independent appeal. This regard I am guided by the case of ***Ithai v Kenyatta National Hospital (Cause 225 of 2019) [2024] KEELRC 387 (KLR) (29 February 2024) (Judgment) - Cause 225 of 2019*** where the court held as follows; *“Section 45 [5] of the*[*Employment Act*](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2007/11)*states that in determining, if an Employer acted justly and equitably in terminating an Employee's contract, the Court [or Labour Officer] shall consider the procedure adopted by the Employer in reaching the decision, and in handling of any appeal against the decision.* *Handling of any appeal, carries the same test of procedural fairness, as the primary hearing. An Employer cannot be cavalier in its conduct of appellate proceedings as the Respondent was, after receiving the Claimant's appeal.”* 1. The Court further notes that the appeal panel did not address the propriety of the disciplinary decision. Instead, what was put forth were comments such the Appellant’s file not being clean, and other matters such as prior theft incidents that had not formed part of the charges the Appellant had been called upon to answer during the disciplinary hearing. Therefore, the court finds that the learned magistrate erred in fact and in law in failing to find that the appeal process fell short of the standards of fairness required under Section 45 of the Employment Act. ***Whether the Appellant is entitled to compensation for unfair termination.*** 1. Having found that the Respondents failed to comply with the mandatory procedural requirements under the Employment Act, the Court finds that the Appellant's termination was procedurally unfair. The Appellant is therefore entitled to compensation for unfair termination. In determining the appropriate award, the Court has considered the circumstances of this case and the factors set out under **Section 49(4) of the Employment Act**. The Court has, taken into account the Appellant's long service of approximately sixteen (16) years and the reasons and manner of termination as set out above and is satisfied that an award equivalent to 12 months’ salary justifiable in the circumstances 2. **Consequently, the appeal succeeds as follows;** 3. **the Judgment of the learned trial Magistrate is set aside as regards the finding that the termination of the Claimant’s service was lawful on account of gross misconduct.** 4. **It is declared that the Appellant’s termination of service was unlawful and in total contravention of the Constitution of Kenya 2010, Employment Act 2007 and the rules of natural justice;** 5. **the Appellant is granted 12 months compensation being the sum of Kshs. 24,648 x 10 months=Kshs. 295,776/-** 6. **The appellant is further awarded the costs of this appeal as well as costs in the trial court.** 7. **It is so ordered.** **Dated at Nairobi this 12th day of August 2026** **Delivered virtually this 12th day of August 2026** **Abuodha Nelson Jorum** **Presiding Judge-Appeals Division**