https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1629

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KAKAMEGA** **APPEAL NO. E020 OF 2025** ***(Being an appeal arising from the judgment of Hon. Reuben S. Kipng’eno (Principal Magistrate) delivered on 31st July 2025 in Butali Principal Magistrates’ Court ELRC No. E006 of 2024)*** **GEOFFREY WEKATI CHITIAVI …………….…. APPELLANT** **-VERSUS –** **BUTALI SUGAR MILLS…………………..…… RESPONDENT** **(BEFORE HON. JUSTICE DAVID NDERITU)** **JUDGMENT** 1. **INTRODUCTION** 2. In a judgment dated and delivered on 31st July 2025,the lower trial court dismissed the Appellant’s claim in its entirety. 3. Dissatisfied with the judgment, the Appellant acting in person filed a memorandum of appeal dated 15th August 2025 seeking that the entire judgment of the lower trial court be set aside and asking this court to grant to him the reliefs sought in the claim with costs. 4. The appeal is based on the following grounds – 5. *THAT the learned magistrate erred in law and facts by holding that appellant was dismissed lawfully and fairly by the Respondent merely because he was paid his terminal dues and certificate of service issued to him, failing to consider the procedural fairness of the termination process, as the Appellant was not granted a chance to produce his documents against the falsification and forgery allegations by the Respondent.* 6. *THAT the learned magistrate erred in law and in fact by holding that the procedural safeguards at the disciplinary hearing met the legal standards when the appellant was not in attendance during the 23rd April disciplinary hearing, where the decision to terminate him was made in absentia, contrary to the principles of natural justice.* 7. *THAT the learned magistrate erred in law and in fact by relying on unsubstantiated allegations made by the Respondent over falsification and forgery of figures on sick sheet No.0142 and receipt NO. 14 which documents do not depict any material alteration and falsification of figures. 4. THAT the learned magistrate erred in law and in fact in wholly disregarding the evidence adduced on behalf of the Appellant and /or properly analyzes the evidence on record thereby arriving at an erroneous decision.* 8. *THAT the learned magistrate erred both in law and in fact, thereby doing an injustice to the Appellant by failing to find and acknowledge that the disputed. Receipt No. 14, produced by the Appellant as document No. 3 in the Appellant's list of documents, bears the doctor's signature and rubber stamp contrary to the Respondent’s averments.* 9. *THAT the learned magistrate erred in law by failing to exercise his discretionary power to summon the doctor who is a key witness to the case to testify on the authenticity and veracity of the disputed receipt No. 14 issued to the Appellant and duplicate receipts No. 14 and 23 issued to the Respondent by him.* 10. *THAT the learned magistrate incorrectly found that the Appellant was not entitled to reliefs as prayed in the statement of claim.* 11. *THAT the learned magistrate erred in law and in fact by totally failing to consider submissions filed by the Appellant and the authorities cited therein, thus occasioning a miscarriage of justice.* 12. The appeal is opposed by the Respondent through Mbeka & Associates Advocates. 13. By consent, the court directed that the appeal be canvassed by way of written submissions. The Appellant filed his written submissions dated 15th November 2025, and Mr Mbeka for the Respondent filed written submissions dated 18th December 2025. 14. **SUBMISSIONS** 15. The Appellant submitted on two issues - ***Whether the appellant proved his case on a balance of probability,*** and, ***Whether the appellant was entitled to compensation for unfair termination.*** 16. The Appellant submitted that the trial court erred in finding that he had failed to prove his case and in upholding the termination of his employment. It is argued that the Appellant adduced sufficient documentary evidence showing that the disciplinary process was both procedurally and substantively unfair. 17. He contends that the decision to terminate him was arrived at in a disciplinary committee meeting of 23rd April 2024 in his absence, thereby denying him a fair hearing and offending the rules of natural justice. It is further submitted that the Respondent failed to prove the allegations of forgery and alteration of Sick Sheet No. 0142 and Receipt No. 14, which formed the basis of the dismissal. The trial court is also faulted for failing to summon the doctor who allegedly issued the disputed documents or ordering for expert evidence to establish the alleged forgery. 18. The Appellant further submits that under ***section 47(5) of the Employment Act***, the Respondent bore the burden of justifying the reasons for the termination once the Appellant established a *prima facie* case of unfair dismissal, which burden was not discharged. 19. The Appellant cited ***Naima Khamisi v Oxford University (E.A.) Limited* *[2017] eKLR*,** in support of the proposition that an employer must prove valid reasons for termination under ***Section 43*** ***of the Employment Act*** and comply with fair procedure under ***Section 45 of the Act***, failing which the termination should be deemed is unfair. The Appellant also cited ***Kenfreight (E.A.) Limited v Benson K. Nguti (2019) eKLR,*** wherein the Supreme Court held that failure to comply with ***Sections 41 and 45 of the Employment Act*** renders a dismissal unfair. Further the Appellant relied on ***Kenya Electrical Trade and Allied Workers Union v Kenya Power & Lighting Co. Ltd, Cause No. 86(N) of 2009****,* wherein the Court emphasized an employee's right to be heard before termination in line with the principle of *audi alteram partem*. 20. Consequently, the Appellant submitted that the termination violated ***Articles 27, 28, 41, 47 and 50 of the Constitution*** and ***sections 41, 45 and 47(5) of the Employment Act***, and urged the Court to allow the appeal, set aside the judgment, declare the termination unfair, and grant the remedies sought. 21. On the other hand, counsel for the Respondent submitted on two issues – ***Whether the trial court erred in finding that the Appellant’s termination was fair, lawful and procedural;*** and, ***Whether the trial court erred in law in finding that the Appellant was not entitled to the reliefs sought.*** 22. On the first issue, Counsel submitted that the trial court correctly found that the Appellant’s termination was lawful, fair, and procedural. It is argued that the Appellant was dismissed for gross misconduct after altering Sick Sheet No. 0142 and presenting a forged receipt for Kshs. 12,200/= with the intention of obtaining an unlawful reimbursement from the Respondent. Counsel maintains that this constituted a valid reason for termination under ***Sections 43, 44(4)(g) & 45 of the Employment Act.*** 23. Counsel further submitted that the requirements of ***Section 41 of the Employment Act*** were fully complied with before termination in that, the Appellant was issued with a show cause letter, responded to the allegations in writing, attended the disciplinary hearing with the union representatives, and he participated in the verification exercise at the hospital. It is submitted that the subsequent disciplinary committee meeting of 23rd April 2024 was merely for deliberation on the verification of the findings and did not require the attendance of the Appellant. 24. It is further submitted that the allegations of falsification were proved by a letter from Optical Eye Clinic confirming that it had issued a receipt only for Kshs8,200/= only and not Kshs12,200/=, alongside the findings of the verification exercise and disciplinary proceedings. Counsel therefore contends that the Respondent established a valid and fair reason for termination and adhered to the due process. 25. Counsel citing ***Selle & Another v Associated Motor Boat Co. Ltd (1968) EA 123***, submitting that upon re-evaluating the evidence, this Court should uphold the trial court’s findings. Counsel further cited ***Evans Kamadi Misango v Barclays Bank of Kenya Ltd [2015] eKLR***, wherein the Court held that it is not the role of the Court to re-enact an employer’s disciplinary process but only to examine its legality and reasonableness. 26. On the issue of remedies, counsel submitted that the Appellant was not entitled to compensation, reinstatement or any other relief since the termination was substantively and procedurally fair. It is submitted that reinstatement is inappropriate given the Appellant’s fraudulent conduct that directly contributed to his dismissal. 27. Counsel further submits that the claim for exemplary damages for loss of eyesight falls outside the Court’s jurisdiction and does not meet the threshold for such an award as it was held in ***D.K. Njagi Marete v Teachers Service Commission [2020] eKLR*.** 28. Regarding the claims for loss of future earnings and general damages for defamation, counsel argued that such remedies are not available in the circumstances of this case. Counsel cited ***Kenya Commercial Bank Ltd v Obae [2023] KENSC 18594 (KLR)*, *Total (Kenya) Ltd v Janevams Ltd [2015] eKLR;* and** ***Consolata Anyango Ouma v South Nyanza Sugar Co. Ltd [2015] eKLR*** in the argument that general damages are ordinarily not awarded for breach of a contract of employment. 29. Accordingly, counsel urges the Court to find that the trial court properly applied the law and evidence, and to dismiss the appeal with costs. 30. **ISSUES FOR DETERMINATION** 31. Briefly, at all material times the Appellant (the claimant in the lower court) was an employee of the Respondent (the Respondent in the lower court) as a mechanic from January 2017 until his dismissal on 26th April 2024. 32. In the statement of claim filed in the lower court – pgs. 4 and 7 of the Record of Appeal – and Reply to Statement of response (Pgs. 42-43), the Appellant pleaded that during his employment he sustained occupational injuries to his right eye that resulted in permanent visual impairment requiring continuous medical treatment and the use of spectacles. He pleaded that the Respondent falsely accused him of altering medical documents, namely Receipt No. 14 and Sick Sheet No. 0142, relating to his treatment at Friends Lugulu Mission Hospital. He maintains that those allegations were malicious, unfounded, and intended to portray him as dishonest. 33. The Appellant pleaded that he attended a disciplinary hearing on 21st March 2024 but the matter was adjourned to allow verification of the disputed documents. Thereafter, he was neither invited nor notified of the subsequent proceedings held on 23rd April 2024 wherein the decision to terminate his employment was made. He pleaded that he was denied an opportunity to participate in the verification and deliberation process or to present his defence, contrary to ***Sections 41 & 45 of the Employment Act (the Act)*** and ***Articles 47 & 50(1) of the Constitution***. 34. According to the Appellant, the termination was therefore procedurally and substantively unfair, malicious, and unlawful. He pleaded and maintained that the dismissal damaged his reputation, caused him mental anguish, and adversely affected his future employment prospects due to his impaired vision. 35. Consequently, the appellant sought a declaration that the termination was unfair and unlawful, reinstatement or, in the alternative, compensation for unfair termination, damages for loss of future earning capacity, exemplary damages for the eye injury, and general damages for defamation and mental suffering. 36. In the response to the claim in the lower court – pgs. 38 – 41 of the Record of Appeal – it was pleaded that the Appellant was lawfully and fairly dismissed for gross misconduct after he allegedly altered medical documents submitted for reimbursement. It was pleaded that the Claimant was issued with a show cause letter, that he responded to the allegations, attended a disciplinary hearing with a union representative, that the disputed documents were found not to be authenticate, before the disciplinary committee resolved to terminate his employment. The Respondent pleaded that the requirements of the ***Act*** were fully complied with, that the termination was procedurally and substantively fair, and that the Appellant was not entitled to compensation, exemplary damages, or loss of future earnings. 37. From the evidence placed before the trial court, the Respondent availed sick sheet No. 0142 dated 13/02/2024 and receipt No. 14 dated 13/2/2024 (pgs. 60 & 62 of the record) as the allegedly forged documents. The sick sheet No. 0115 dated 6/2/2024 (pg56) and receipt no. 14 dated 13/02/2024(pg. 58), were availed as the authentic documents. A letter allegedly issued by the optician who authored the authentic documents dated 27/2/2024 was also produced purportedly to prove that the Appellant falsified documents to claim reimbursement from the Respondent. 38. It is the above allegations that led to the termination of the Appellant. The trial court affirmed the termination and dismissed the claim by the Appellant. 39. In my considered view, the issues for determination in this appeal are the following – 40. ***Whether the Appellant was unfairly and unlawfully terminated.*** 41. ***Did the lower trial court arrive at the right finding and holding in that regard?*** 42. ***If (i) is not in the affirmative, was the Appellant entitled to the reliefs sought?*** 43. ***What orders should this court make in disposal of this appeal?*** 44. ***Costs.*** 45. **SUBSTANTIVE FAIRNESS** 46. The court has been invited to determine whether the trial court arrived at the proper finding on the termination of the appellant. The trial court found that the Appellant engaged in misconduct of falsifying documents for financial gain and that the misconduct eroded the trust of the Respondent and thus, his termination was fair. 47. Lord Denning in ***British Leyland UK Limited v Swift (1981) I.R.L.R. 91*** held that – ***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, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view.*** 48. The Respondent reasonably believed that the Appellant falsified the sick sheets note and receipt for financial gain. The court notes that the sick sheet number 0115 dated 6th February 2024 is for a sum of Kshs8,200. The other sick sheet No. 0142 dated 13th February 2024 is for a sum of Kshs12,200/=. There is no visible alteration on the face of the two sick sheets. The allegedly authentic receipt No. 14 was issued on 13th February 2024 for Kshs8,200/=. The other receipt alleged to have been forged was also issued on 13th February 2024 for a sum of Kshs12,200/=. There is no indication as to who made the entries in sick sheet No. 0115 for Kshs8,200/= or the other for Kshs12,200/=. Both documents bear the stamp of Friends Lugulu Mission Hospital. No evidence was called from the hospital, and more so by the Respondent, who alleged forgery, to prove the authenticity of the documents. 49. The letter dated 27th February 2024 from one Samson Onwar for Optical Eye Clinic alleged that the sick sheets were manipulated. No basis was laid as to why the said person, whose name did not appear on the sick sheets, alleged that the same were manipulated. The Respondent case for forgery was based on the allegations of the said individual who was not called to verify those allegations in court. The letter could have been issued by any person to suit the Respondent’s case. The Respondent ought to have called the said optician to attend the disciplinary hearing to verify the facts alleged in the letter and to give the Appellant an opportunity to cross-examine or question him. Moreover, the respondent had a second opportunity to call the said optician to testify in support of its defence in court to prove the forgery at least on a balance of probabilities. 50. The court finds and holds that the trial court failed to appreciate that there was no proof that the documents adduced by the Respondent were forged, as there was no visible alteration on the face of the said documents. A reasonable employer in the circumstances ought to have invited the alleged maker of the purportedly authentic documents to testify in regard to the alleged falsification, rather than relying on a letter that was not produced by the maker in arriving at the decision to terminate the Appellant. 51. The court finds and holds that the trial court arrived at the wrong finding that the Respondent had reasonable grounds for the termination in line with ***Section 43 of the Act***. The Respondent clearly denied the Appellant to test the validity and felicity if the documentary evidence. Further, since the allegations were based on the documentary evidence, the Respondent ought to have been accurate and specific in using documents as the basis for termination. 52. **PROCEDURAL FAIRNESS** 53. The Appellant challenged the procedural steps leading to his termination claiming that the initial disciplinary hearing slated for 21st March 2024 was deferred to await verification of the allegedly falsified documents. The Respondent held another hearing on 23rd April 2024 without inviting him. The Respondent claimed that the subsequent hearing of 23rd April 2024 was only to deliberate on the findings after verification of the documents and that the same was not a disciplinary hearing. 54. The court has examined the minutes of the meeting held on 21st March 2024 (pgs. 26 – 28 of the record) and notes that the disciplinary hearing was deferred for verification of the receipts at the hospital. It was indicated that the Appellant and the union representative would accompany the chairman of the board for the verification. 55. In plain English the term “defer” ordinarilyrefers to the act of postponing or delaying an action or decision. It is therefore clear that the disciplinary hearing was postponed to await the verification. The disciplinary hearing was to thereafter proceed, upon the invitation and presence of the Appellant. The Respondents have not denied the fact that the Appellant was not invited to this second meeting. 56. Procedural fairness is mandatory even where the employer contemplates summary dismissal for gross misconduct under ***Section 44 of the Act.*** The procedural fairness is described under ***Section 41(2) of the Act*** as – ***‘41(2) Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee 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, if any, chosen by the employee within subsection (1), make.’*** 1. The court finds and holds that the carbon copy receipt introduced in the second disciplinary hearing meeting was produced in the absence of the Appellant thereby, denying him the opportunity to present his defence in that regard. Procedurally, therefore, the Appellant was denied the opportunity to be heard and to present his defence within the meaning and context of the provisions of the law, and more so ***Sections 41, 43, 44, & 45 of the Act***. This rendered the termination unfair and unlawful for lack of procedural compliance. 2. The trial court thus misdirected itself in this regard as the Appellant was neither denied a fair hearing both in substance and procedure. 3. **RELIEFS AWARDED** 4. Having found that the trial court arrived at the wrong finding on the termination of the Appellant, the court shall consider whether the Appellant was entitled to the reliefs sought in the claim. The Appellant sought for the following reliefs in his claim – 5. ***A declaration that the termination of employment was unfair, contrary to the Constitution of Kenya, 2010 and the Employment Act No. 11 of 2007.*** 6. ***Reinstatement without loss of benefits.*** 7. ***In the alternative –*** 8. ***Maximum compensation as per Section 49 (1) (c) of the Employment Act.*** 9. ***An order that the respondent pay the claimant Kshs648,252/ (Kenya Shillings Six Hundred and Forty-Eight Thousand Two Hundred and Fifty-Two shillings only) as per paragraph 15(a) hereinabove.*** 10. ***The respondent to pay exemplary damages for loss of eyesight and eye damage at Kshs2,500,000/=*** 11. ***General damages for defamation and torture of mind as a result of unfair termination.*** 12. ***Costs and interests of this suit.*** 13. ***Any other relief(s) this Honourable Court may deem just and fit to grant.*** 14. Prayer (a) was for a declaration that the Appellant’s termination was unfair. The court has found above that the termination of the Appellant was unlawful and unfair. An order shall issue accordingly. 15. Prayer (b) was for reinstatement. The trial court rightly found that reinstatement was not available to the appellant, but urged the Respondent to consider reengaging the Appellant due to his long service. The court finds and holds trust having been broken down on allegations of falsification of documents, reinstatement shall not be an appropriate remedy. 16. Prayer (c)(i) was for maximum compensation under ***Section 49 (1) (c) of the Act***. The court has found that the termination of the Appellant was unfair and unlawful, and thus the Appellant is entitled to some compensation under ***Section 49 of the Act.*** 17. In making and award, some of the factors for consideration under ***Section 49 of the Act*** include – **(a)*****the wishes of the employee;*** ***(b) the circumstances in which the termination took place, including the extent, if any, to which the employee caused or contributed to the termination;*** ***(e) the employee's length of service with the employer;*** ***(f) the reasonable expectation of the employee as to the length of time for which his employment with that employer might have continued but for the termination;*** ***(g) the opportunities available to the employee for securing comparable or suitable employment with another employer;*** ***(k) any conduct of the employee which to any extent caused or contributed to the termination; and*** ***(l) any failure by the employee to reasonably mitigate the losses attributable to the unjustified termination.*** 1. Compensation is intended to remedy the loss or damage that an employee suffers upon unfair and unlawful termination or dismissal as evidence in the loss of income or earnings that should have been due and payable to him were it not for the termination or dismissal. It is not intended for the undue enrichment. 2. The Appellant worked for the Respondent for over six years. There was no indication whether the Appellant was able to secure an alternate occupation. The court finds that the award equivalent to ten months’ (10) after the termination gross salary is appropriate in the circumstances considering the length of his service. The Appellant’s last gross pay was Kshs54,021 as per the pay slips March and April 2024 (pgs 87 & 88 of the record). Therefore, the Appellant is awarded Kshs54,021x 10 = Kshs540,210/= in compensation of the unfair and unlawful termination. 3. On the claim for exemplary damages for loss of eyesight and eye damage at Kshs2,500,000/=, the trial magistrate rightly found that the alleged occupational injury fell within the jurisdiction of the Director of Occupational Safety and health and (DOSH). This court shall not disturb that finding. 4. On the claim for general damages for defamation and torture of mind as a result of unfair termination, the trial magistrate found that the same had not been proved and declined to grant. The court agrees with the trial court that the particulars of defamation were neither specifically pleaded not was the defamation proved. The court shall not interfere with the finding and holding of the trial court in that regard. 5. **COSTS** 6. Costs follow the event and, the Appellant is awarded costs for the trial in the lower court and for this appeal. 7. The appeal thus succeeds to the extent delineated in the foregoing parts of this judgment. 8. **ORDERS** 9. Flowing from the foregoing, the court makes the following orders– 10. ***The Judgment of Hon. Reuben S. Kipng’eno (Principal Magistrate) delivered on 31st July 2025 dismissing Butali Principal Magistrates’ Court ELRC No. E006 of 2024) is hereby set aside and substituted with the following orders –*** 11. ***A declaration be and is hereby issued that the termination of the Appellant was unfair and unlawful.*** 12. ***The Appellant is awarded a sum of Kshs540,210/= in Compensation for the unfair and unlawful termination.*** ***\*This award is subject to statutory deductions*** 1. ***The Appellant is awarded costs of the trial in the lower court and the costs of this Appeal.*** **DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 11TH DAY OF JUNE 2026.** **……………………** **DAVID NDERITU** **JUDGE**