DHL Global Forwarding Kenya Ltd v Ndung'u (Appeal E049 of 2025) [2026] KEELRC 2342 (KLR) (28 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **APPEALS DIVISION** **APPEAL NO. E049 OF 2025** BETWEEN DHL GLOBAL FORWARDING KENYA LIMITED …………..…………..APPELLANT AND MERCY WAIRIMU NDUNG'U …...………………………...……………. RESPONDENT (Being an appeal against the judgment of the Chief Magistrates Court at Mavoko, by the Honourable Barbara Ojoo, Chief Magistrate delivered on 22nd January 2025 in Mavoko CMELRC No. E188 of 2023) JUDGMENT *(Before Hon. Justice Abuodha Jorum Nelson)* 1. Through the Memorandum of Appeal dated 21st February, 2025, the Appellant appeals against the judgment of the Chief Magistrates Court at Mavoko, by the Honourable Barbara Ojoo, Chief Magistrate delivered on 22nd January 2025 in Mavoko CMELRC No. E188 of 2023 on grounds inter alia: 2. The learned trial magistrate erred in law and in fact by applying the wrong and inaccurate principles and/or considered erroneous, irrelevant and/or extraneous factors in determining the issue of termination of employment on the grounds of absconding duty and she erred by failing to consider or by dismissing out of hand, the issues and/or submissions raised by the Appellant. 3. The learned trial magistrate erred in law and in fact by holding that the accusations against the Claimant which accusations were absconding of duty from 7th August 2023 to 10th August 2023 merited warning before termination of employment. 4. The learned trial magistrate erred in law and fact by holding that the Respondent had not placed the employment handbook before the court and in failing to consider that it was produced as exhibit 8 and was therefore properly before the court. 5. The learned trial magistrate erred in law and in fact by failing to consider and should have considered the Respondent's admission that she was absent from work from 7th August 2023 to 10th August 2023 without leave or lawful cause and the Respondent's admission that she did not produce a sick sheet to account for the days she was away from work as required under internal policies. 6. The learned trial magistrate erred in law and in fact by failing to hold and should have held that the Claimant's absence from work without leave and failure to produce a sick sheet upon resuming work was a valid ground for summary dismissal under section 44 (4) (a) of the Employment Act, 2007. 7. The appellant therefore prayed before this court for orders that: 8. The appeal be allowed. 9. The judgment of the Honourable Magistrate delivered on 22nd January 2025 and the decree thereto be set aside and substituted with an order dismissing the suit against the Appellant with costs. 10. The costs of this Appeal be awarded to the Appellant. 11. This Honourable court makes such and further orders as it deems fit and just to meet the ends of justice. 12. The appeal was disposed of by written submissions. **APPELLANT’S SUBMISSION** 1. The appellant’s counsel Mr. Wangongo submitted among others that the respondent was employed as a Customs Operations Specialist with effect from 27th October 2016 and that she was summarily dismissed from employment on 9th October 2023 on account of absconding duty from 7th August 2023 to 10th August 2023 and failing to submit a sick off sheet to the employer to prove her allegation that she was sick during that period. Prior to termination the Respondent was issued with a show cause letter and thereafter she attended a disciplinary hearing during which she had the opportunity to make oral and written representations in response to the allegations in the show cause letter. 2. The Respondent's case before the trial court was that the absence was occasioned by illness and that she had communicated through informal channels. She stated that on the morning of 7th August 2023, she communicated that she was passing by the hospital in the work WhatsApp group. Clause 11 of the Appellant's Employee Handbook provided that: *“Sick leave must be certified by a qualified registered medical practitioner. This must be brought to the knowledge of the Human Resource (HR) department immediately and a sick off medical certificate received in the department within 48 hours. If no certificate is forwarded it will be assumed that the employee is absent without authority.”* 1. Counsel submitted that the Respondent confirmed that she was aware of the Company's policy, particularly the requirement to inform her line manager of her whereabouts and to submit a doctor's note upon resuming work. The Respondent did not inform the HR department of her absence from work. The Claimant's WhatsApp message sent on 7th August 2023 saying “*Nimepitia hosi”* was not addressed to the HR department as required in the policy. In any case, the message did not indicate that she was unwell or that she was taking sick leave. It was only an indication that she would pass by a hospital for unknown reasons. The Respondent did not inform the Human Resource Manager of her absence on account of illness as required under the policy. The Appellant's witness, who was the Human Resource Business Partner, testified that from a reading of the message and the fact that it was sent through an informal channel, the line manager believed that the Respondent would only be away for a few hours with no major disruptions in work and if there was need for her to be away for more than a few hours, she ought to have communicated to her employer or account for the time through a doctor's note as required under the policy. 2. According to Mr. Wangongu, the Appellant made efforts to trace the Respondent's whereabouts through phone calls and email messages sent by the Respondent's line manager. The Appellant's witness stated that when the Respondent failed to report to work and the company remained in the dark as to her whereabouts. The Respondent's line manager called her several times but she did not pick up her phone or return the calls. The line manager also wrote several email messages to her which she failed to respond to. It was then that a colleague who knew the Respondent's sibling reached out to the sibling who confirmed that the Claimant was okay and was not suffering from any illness. 3. Further, the Respondent failed to produce a sick off medical certificate within 48 hours of resuming work. She admitted in the disciplinary hearing and during her testimony in court under oath that she did not produce a sick off sheet. As of the date of the disciplinary hearing held on 5th October 2023, which was more than a month after the date of resumption to work, the Respondent had not produced any sick sheet to account for the days she was absent. Therefore, based on the provisions of the policy, the Appellant had reason to believe that the Claimant was absent from work without any lawful cause or authority. In this respect counsel relied on the case of ***Walter Ogal Anuro v Teachers Service Commission [2013] KEELRC 386 (KLR)*** where the Court held that for a termination to pass the fairness test, there must be both substantive justification and procedural fairness. 4. According to Counsel, the Appellant had a valid and justifiable reason for termination of the Claimant's employment. Section 43(2) of the Employment Act 2007 requires an employer to prove the reason for termination of employment to be deemed fair. It provides that: ***“The reason or reasons for termination of a 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.”*** 1. Further that section 44(4)(a) of the Employment Act, expressly provides that absence from work without leave or lawful cause constitutes gross misconduct warranting summary dismissal. The Respondent's defence at the trial court rested on the assertion that she was unwell and therefore had a lawful cause for absence under section 44(4)(a) as read with section 30 of the Employment Act. While it was not disputed that illness may constitute a lawful cause for absence from work, it must be properly invoked and demonstrated. An employee has an obligation to notify an employer and submit a certificate of incapacity 2. An employee's entitlement to sick leave was not an absolute right. It was subject to production of a certificate of incapacity from a qualified medical practitioner as required under Section 30 of the Employment Act. Section 30 of the Employment Act entitles an employee to sick leave. Section 30(1) and (2) specifically states; *(1) An employee shall be entitled to sick leave of not less than seven days with full pay and thereafter to sick leave of seven days with half pay, in each period of twelve consecutive months of service, subject to production by the employee of a certificate of incapacity to work signed by a duly qualified medical practitioner or a person acting on the practitioner's behalf in charge of a dispensary or medical aid centre.* *“(2) For an employee to be entitled to sick leave with full pay under subsection (1), the employee shall notify or cause to be notified as soon as is reasonably practicable his employer of his absence and the reasons for it.”* 1. The Respondent failed to substantiate her alleged illness at all. She did not produce any sick sheet during the disciplinary process. The alleged medical documentation was only introduced at the stage of litigation, long after the fact. This raises serious doubt as to its authenticity and evidentiary value. The learned trial magistrate therefore misdirected herself by treating the mere existence of an explanation as sufficient justification, without interrogating whether that explanation was legally sufficient, properly communicated and procedurally compliant. An employee cannot simply assert illness and thereby insulate themselves from disciplinary consequences without complying with the employer's reporting and authorization of absence from work. 2. The learned trial magistrate erred in both law and fact in finding that the Respondent's absence did not amount to abscondment. The court failed to interrogate the quality of the absence, the conduct of the Respondent and whether her absence was effectively communicated and authorized within the framework of the employment relationship and section 30 of the Employment Act. In this respect counsel relied on the case of **Mohammed Ali Iddow v. Highland Resources Limited [2021] eKLR**. The Respondent did not discharge the burden of proof on her obligation to notify the Appellant and to produce a certificate of incapacity. The Respondent merely posted in a WhatsApp group on 7th August 2023 that she was passing by a hospital, an indication that she would report to work later that day. However, she thereafter remained completely silent for four consecutive days without any further communication, explanation, or request for extension of leave. The Appellant tried to reach her but the Respondent could not be reached. **RESPONDENT'S WRITTEN SUBMISSIONS** 1. Respondent’s counsel, Mr. Kabene, submitted among others that this court sitting as a first appellate court as stated in **Abok James Odera t/a AJ Odera & Associates v John Patrick Machira t/a Machira e KLR** has a duty to:- *“this being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.”* Counsel therefore submitted that the learned judge did not err in law in finding that the respondent's termination was not one of summary dismissal and that it was also substantively unfair. The reasons used to terminate the Respondent could be found in her show cause and the letter inviting her to disciplinary hearing whereby they were framed as charges/offence as follows; *“Several alleged instances of tardiness and gross misconduct by absconding duty...”* According to counsel, for the offence of tardiness or lateness, the Appellant did not prove this reason to be valid. The law required an employer to keep employee records pursuant to section 74 of the Employment Act. Nothing would have been easier than the Respondent to provide work attendance sheets confirming that position or even a warning letter on account of tardiness. This offence fell entirely on its back for want of justification. 1. The second offence was the one of absconding duty. It was true the Respondent was absent from work from 7th August to 10th August, 2023. Based on this reason, the Respondent was summarily dismissed pursuant to section 44 of the Employment Act. Counsel however submitted that the appellant did not appreciate fully the provisions of section 44, particularly section 44 (4)(a) which provides; *“Any of the following matters may amount to gross misconduct so as to justify summary dismissal of an employee* *(a) Without leave or other lawful cause, an employee an employee absents himself from the place appointed for the performance of his work'* 1. Counsel urged the court to take note of how the section is worded and that it only becomes a ground for summary dismissal if an employee is absent from work without leave or lawful cause. So, was the Respondent absent from work without lawful cause? The Respondent was absent because she fell ill. She did post on the work WhatsApp group that she is visiting the hospital. She also provided a medical sheet. All these could be found in the Respondent's bundle of documents as exhibits. The Respondent ratified the lawfulness of her absence once she applied for the days to be deducted from her leave days. The same was approved by the Appellant on 14/08/2023 as it could be seen in the Respondent's bundle of documents. Surprisingly, even after ratifying as demonstrated above, the Appellant proceeded and dismissed the Respondent on that ground. The trial court did not therefore err in finding that the Respondent's termination did not warrant a summary dismissal and that the Appellant had no substantive justification to initiate a termination 2. Regarding cross appeal, counsel submitted that for termination of employment to pass the test of lawfulness, it must pass both the procedural test and substantive test and that the courts have buttressed this position in the case of **Walter Ogal Anuro -v- Teachers Service Commission [2013] e KLR** the court held that: “*For a termination of employment to pass the fairness test, there must be both substantive justification and procedural fairness. Substantive justification has to do with establishment of a valid reason for the termination while procedural fairness addresses the procedure adopted by the employer to effect the termination.”* And in the case of **Pamela Nelima Lutta -v- Mumias Sugar Co. Ltd [2017) e KLR** where Onyango J held that; *“What constitutes fair termination is a matter that is well settled by wealth of jurisprudence of this court and the court of appeal. There are two elements that must be satisfied by the employer, fair procedure and valid reason.”* Flowing from the above provisions of the law, it was a grave error for the lower court to separate the two sets. The trial court found that Respondent's termination lacked substantive justification and failed to declare it as unfair and unlawful. The trial court despite making above finding, did not award compensation for unfair termination as pleaded by the Respondent. The trial court also did not issue reasons for the lack of the award thereof. Consequently counsel urged the court to declare that the Respondent's termination was unfair and unlawful and award compensation for unfair and unlawful termination to the Respondent as pleaded in the Statement of Claim. The respondent further prayed for the costs of the cross appeal. **DETERMINATION.** 1. This appeal seems to turn around whether the trial court erred in law and fact allowing the claimants claim and making the awards contained in the judgment delivered on 22nd January, 2025. As stated above, the respondent was employed as a Customs Operations Specialist with effect from 27th October 2016 and that she was summarily dismissed from employment on 9th October 2023 on account of absconding duty from 7th August 2023 to 10th August 2023 and failing to submit a sick off sheet to the employer to prove her allegation that she was sick during that period. Prior to termination the Respondent was issued with a show cause letter and thereafter she attended a disciplinary hearing during which she had the opportunity to make oral and written representations in response to the allegations in the show cause letter. 2. In her judgment, the trial court found that the termination of the respondent’s service was procedurally in accordance with the law but substantively unjustifiable. The appellant appealed against the findings of the trial court and urged the court to set aside the same and substitute it with an order dismissing the claim while the respondent cross-appealed against the finding and contended that the trial court erred in finding that the termination of the respondent’s service was procedurally in accordance with the law but substantively unjustifiable. Counsel contended that for the termination to be upheld, it must be both substantive and procedural and that the two principles cannot be split. 3. This court agrees that the two principles cannot be split. That is to say a termination cannot be found to be procedurally fair but lacking in justification hence reduced to a normal termination. The court will further go ahead and state that there is no such thing as a normal termination when one of the two principles is not met. They are either both met as required by law hence a normal or fair termination or not both not met hence an unfair termination. This was elucidated in the often-cited case of **Walter Ogal Anuro -v- Teachers Service Commission [2013] eKLR** where the courtheld that: “*For a termination of employment to pass the fairness test, there must be both substantive justification and procedural fairness. Substantive justification has to do with establishment of a valid reason for the termination while procedural fairness addresses the procedure adopted by the employer to effect the termination.”* 1. It was not contested that the respondent absented herself from work without permission. According to the respondent, she fell ill and posted on the office WhatsApp Group that she would be passing through hospital. This was taken by the Appellant to mean that the respondent would be coming to work late after hospital but she did not and only resumed work after about four days. According to the appellant, the line manager tried to reach the respondent severally on phone and sent her email messages but she did not respond. The respondent further alleged that when she resumed duty and wanted to explain her absence during the material time, her line manager was away on sick off. 2. The show cause letter to the respondent dated 7th September, 2023 stated in part that:- *“ It has come to the management’s attention that there have been several alleged instances of tardiness and gross misconduct with most recent absconding of duty from 7th August, 2023 to 10th August, 2023… You are hereby required to show cause giving explanation in view of the alleged gross misconduct why disciplinary action should not be taken against you…”* * + - 1. In her response to the show cause letter dated 11th September, 2023, the respondent stated *inter alia* that she had gone upcountry that weekend and fell sick in her remote village, she took some medication that did not go well with her and on 7th passed through a dispensary on her way to work. She further stated that she communicated to her boss and her colleagues on their WhatsApp group indicating she was unwell and that she was seeing a doctor that morning, she was treated and went home. She further stated that she did not get a sick leave because she knew she would feel better within hours of treatment however she got worse and stayed at home for three days. 2. 24. At the disciplinary hearing the respondent repeated the same explanation and further acknowledged seeing missed calls from her manager and did not respond because she thought she would be okay. At the hearing in Court, the respondent produced as exhibit 12, treatment note dated 7th August, 2023 (page 30 of the record, date not clear). Curiously, this document was neither produced or alluded to during the disciplinary hearing. The respondent’s absence from work was the subject of disciplinary hearing and it is the view of the court that everything that could justify her absence such as the treatment notes produced during the court trial, was material for her defence during the disciplinary hearing. It is therefore possible that this document could have been contrived as an afterthought to make up the respondent’s claim for unfair termination before the trial court. 3. 25. This court has stated in its several decisions that its not its responsibility to second guess or indulge in merit review of management decision to terminate the service of an employee. The concern of the court is to satisfy itself that a reasonable employer faced with a similar situation would consider termination of service as the most appropriate disciplinary action to take against the infraction committed by the employee. This has been stated judicially in the case of **Kenya Revenue Authority Vs Menginya Salim Murgani, Civil Appeal No. 108 of 2009** *(per Justice Prof J.B Ojwang as he then was)*as cited in ***Republic Vs National Police Service Commission Exparte Daniel Chacha Chacha JR 36 of 2016 (2016) eKLR-*** *“There is ample authority that decision making bodies other than courts and bodies whose procedures are laid down by statute are masters of their own procedures. Provided that they achieve the degree of fairness appropriate to their tasks. It is for them to decide how they will proceed”* * + - 1. Further in the often-cited English case of **British Leyland UK Ltd v. Swift [1981]IRLR 91** per Lord Dening: 1. ‘*The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair, but if a reasonable employer might reasonably have dismissed him, the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which an employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair even though some other employers may not have dismissed him”* 2. 26. **From the foregoing, it evidently clear that the trial court erred in reaching a finding that there was no valid and or justifiable reason to summarily dismiss the respondent. In the same vein, the court having so found, the cross-appeal fails.** 3. **27. In conclusion this court finds and holds that there existed valid reasons to summarily dismiss the respondent and that the dismissal was carried out through a fair procedure. Consequently, the orders of the trial court allowing the claim are hereby substituted with an order dismissing the suit in the lower court with costs.** 4. **28. Each party shall bear their costs of this appeal** 5. **29. It is so ordered.** **Dated at Nairobi this 28th day of July, 2026** **Delivered virtually this 28th day of July, 2026** **Abuodha Nelson Jorum** **Presiding Judge-Appeals Division**