https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1486

Grain Industries Limited v Amito (Appeal E044 of 2025) [2026] KEELRC 1486 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1486 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nakuru Appeal E044 of 2025 J Rika, J May 29, 2026 Between Grain Industries Limited Appellant and George Albert Ochieng Amito Respondent Judgment 1.The Respondent is a former Employee of the Appellant. 2.He filed a Claim at the Trial Court for unfair and unlawful termination. 3.He was granted compensation at Kshs. 270,000; pro-rata leave at Kshs. 22, 862; unpaid salary at Kshs. 30,484; costs; interest; and certificate of service. 4.The Appellant filed Memorandum of Appeal dated 26th August 2025, listing 11 related grounds of appeal. 5.These may be summarized as follows: -a.The Trial Court erred in finding that the Appellant failed give the Respondent a fair opportunity to present his case.b.The Trial Court erred in finding that the Respondent was never served with the letter to show cause and letter inviting him to disciplinary hearing, the Respondent having conceded service.c.The Trial Court erred in awarding compensation equivalent of 6 months‘ salary to the Respondent.d.The Trial Court erred by failing to consider and grant the Appellant’s Counterclaim which was undisputed by the Respondent. 6.The Appellant proposes that: -a.Award of Kshs. 270,000 in compensation to the Respondent is set aside and substituted with an award dismissing the same.b.The Counterclaim is awarded to the Appellant in the sum of Kshs, 635,053.c.In alternative to [b] above, the Counterclaim is remanded for trial before another Magistrate other than Hon. Priscah Wamucii Nyotah.d.Costs of the Claim, the Counterclaim and the Appeal to the Appellant. 7.Parties agreed to have the Appeal considered and determined on the strength of the Record of Appeal and Submissions. They confirmed filing and exchange of Submissions at the last appearance before the Court, on 17th March 2026. 8.The Appellant submits that the Trial Court concluded that termination was based on valid reason, but faulted procedure. The Trial Court held that the letter to show cause, and the invitation to the disciplinary hearing, were sent to a physical address, which happened to be the Appellant’s own physical address. 9.The Appellant submits that the documents were e-mailed to the Respondent, and that received the documents, because he had access to his e-mail. 10.On the Counterclaim, the Appellant states that there was no Response to the Counterclaim, filed by the Respondent. The Appellant produced an audit report and police abstract at the trial, to support its Counterclaim. The Trial Court did not mention the Counterclaim anywhere in its Judgment. 11.The Respondent submits that there were no established channels of communication between the Parties, during the disciplinary hearing. The Appellant addressed the communication to itself, rather than the Respondent. There was no explanation from the Appellant, why it did not serve the letters to show cause and the invitation to the disciplinary hearing personally upon the Respondent. The Respondent was kept out of the disciplinary process. The Court Finds: - 12.The Trial Court did not err, in faulting procedure. The Appellant did not communicate the letter to show cause and the letter inviting the Respondent to the disciplinary hearing effectively. 13.It was not clear how the Respondent, would receive and act on communication sent through an address housed by the Appellant, while he was not at the workplace. 14.The Appellant had an obligation to ensure that communication was received by the Respondent through his own address, which the Court would presume was retained by the Appellant in his personnel file. Why did the Appellant not for instance, call the Respondent through his known phone number, invite him to the workplace, and hand him the physical letters? 15.The witness for the Appellant, Mohammed Nabil, told the Court that the Respondent was served with notices through e-mail, and that he protested he only saw the notices after the disciplinary hearing. 16.There was evidence that the Respondent may have been in custody, having been involved in an accident, which led to traffic charges, at the time the Appellant sent notices through e-mail. 17.It was not a safe mode of communication, and it was never established that the Respondent had proper notice of the disciplinary hearing. The Trial Court correctly found that there was no evidence of delivery to the Respondent. The witness for the Appellant told the Trial Court that he was told, that the Respondent was invited for hearing verbally. 18.In the High Court decision, BOD County Referral Hospital Kitale & Another v. DN [suing through her next friend and Grandmother SK] KEHC 5344 [KLR], it was held that service of notices via e-mail address, must be evidenced by a delivery receipt, nor merely a copy of the e-mail sent. E-mail delivery receipt is a notification confirming that an e-mail has been delivered to the recipient address. It is different from an e-mail read receipt which confirms that the e-mail was opened and / or read by the recipient. 19.The Trial Court did not err, in faulting procedure and the grounds of appeal revolving around the subject, are declined. 20.The Appellant filed a Counterclaim, pleading a sum of Kshs. 635,053 from the Respondent. The amount represents the value of lost bales of flour, and costs of repairing the Appellant’s motor vehicle, following the accident which the Appellant felt was occasioned through the Respondent’s negligence. 21.It is true that the Respondent filed a Response to the Counterclaim, which is dated 21st August 2024. 22.It is also correct that the Trial Court did not deliberate on the Counterclaim, and consequently, made no mention or order in its Judgment, concerning the Counterclaim. 23.The Parties themselves do not appear to have paid adequate attention to the Counterclaim, in their evidence. Other than producing the audit report and the police abstract, the Appellant’s witness did not say anything about the Counterclaim. The audit report and the police abstract may have been exhibited in responding the Claim, rather than in supporting the Counterclaim. It was the Appellant’s duty to make the Trial Court understand its evidence. 24.No questions were put to the Appellant’s witness on cross-examination, by the Advocate for the Respondent on the Counterclaim, because the witness said nothing about the Counterclaim. 25.Ultimately, the Counterclaim was left dangling in the wind, in the Judgment of the Trial Court. 26.There is no evidence recorded by the Trial Court , that would allow the Court to allow the Counterclaim without further hearing, as proposed by the Appellant. 27.The Counterclaim is remitted to the Chief Magistrate’s E&LRC, for retrial. 28.Retrial may be conducted by the Trial Magistrate Hon. Priscah Wamucii Nyotah, or any other authorized Hon. Magistrate within Nakuru. 29.The decretal sum awarded to the Respondent shall be released to the Respondent.It Is Ordered: -a.The Appeal is partly allowed.b.The Counterclaim is remitted to the Chief Magistrate’s Court, to be retried by the Hon. Priscah Wamucii Nyotah, or any other authorized Magistrate.c.The decretal sum awarded by the Trial Court, to be released to the Respondent forthwith.d.No order on the costs of the Appeal. DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAKURU, UNDER RULE 68[5] OF THE E&LRC [PROCEDURE] RULES, 2024, THIS 29TH DAY OF MAY 2026.JAMES RIKAJUDGE