PJ Dave Flora Ltd v Nyongesa (Appeal E416 of 2025) [2026] KEELRC 2439 (KLR) (31 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **APPEAL NO. E416 OF 2025** **PJ DAVE FLORA LIMITED APPELLANT** *VERSUS* **DSIMAS WANYONYI NYONGESA RESPONDENT** **(Being an appeal of the Judgment of Hon R.A Oganyo in Kajiado MCELRC E021 of 2023 delivered on 18 November 2025)** **JUDGMENT** The appeal arises from the judgment delivered on 18 November 2025 in Kajiado MCELRC E021 of 2023. The appellant appeals against the judgment on the following grounds 1. The learned magistrate erred in law and fact by failing to consider fully the evidence adduced by the appellant and by awarding the respondent damages for unlawful termination at Kshs. 175,302 2. The learned magistrate erred in law and misdirected herself in finding that the respondent was paid 2 months in lieu of notice, but still proceeding to award one month in lieu of notice 3. The learned magistrate erred in law and fact by failing to properly consider the evidence adduced by the appellant by awarding the respondent costs and interests. The background to the appeal is the claim filed by the respondent in Kajiado MCELRC E021 of 2023. The respondent claimed that he was employed by the appellant as a security supervisor from 7 January 2013 until 13 January 2023, earning a gross salary of Kshs. 20,129 at the time of dismissal. On 13 January 2023, he was terminated from his employment by the appellant without warning, notice, reason or justification. Such was unfair, unjust, unreasonable and a blatant breach of Sections 35, 41, 43, 44, 45, 46 and 49 of the Employment Act (the Act). he claimed the following; 1. A declaration that the dismissal/termination of employment of the respondent is unfair, unlawful, and illegal, hence null and void 2. The payment of Kshs. 400,447: 3. 60 days' salary in lieu of notice Ksh. 28,063. 4. 12 months' compensation Ksh. 241,548. 5. Severance/gratuity pay at 23 days for 10 years Ksh. 107,596. 6. January 2023 salary Ksh. 14,229. 7. Pro rata level Ksh. 5,612. 8. Overtime pay Ksh. 3,400. 9. Issuance of certificate of service 10. Punitive and aggravated damages for breach of the constitutional rights 11. Costs of the cause In reply, the appellant admitted that the respondent, who was a supervisor, failed to carry out an investigation into an allegation of theft by one of the employees which was reported to him by another employee, but opted to conceal the offence by hiding the exhibit and releasing the suspect without any action being taken against him. On 9 January 2023, the respondent was issued a show-cause letter and tasked with explaining why disciplinary action should not be taken against him for failing to report the theft, a matter he acknowledged and addressed on the same day. His explanation was found to be unsatisfactory; he was issued with a letter inviting him to attend a disciplinary hearing meeting on 10 January 2023. He was advised in the letter to bring an employee of his choice to represent him at the meeting. A disciplinary hearing meeting was held, and the respondent was given the opportunity to explain why disciplinary action should not be taken against him. He admitted to having received the theft case and to having lied to his supervisor, Josephat Wabwile, that he had reported the issue to the Human Resource Manager and that the concerned employee had been issued a warning letter. The appellant decided that the respondent be terminated from employment for negligence in performing his duties. The learned magistrate assessed the evidence and held that the period accorded to the respondent to respond to the allegations against him did not amount to an adequate opportunity to prepare for his hearing. The person who allegedly caught the thief and reported it to the respondent never reported it to anyone else. Due process was therefore not followed, nor was the respondent given an opportunity to prepare for his defence. The termination was therefore unlawful and unfair. The learned magistrate held that although the appellant stated that the respondent was paid his damages of Kshs. 107,596, the same was indicated as a gratuity, which is different from compensation for unlawful termination. The respondent was awarded damages equivalent to 9 months' salary amounting to Kshs. 175,302 in line with the Supreme Court’s pronouncement in **Kenfreight E.A Ltd vs Benson K Nguti [2016] eKLR.** The Court found that the respondent was not issued with a termination notice nor paid in lieu thereof, but a perusal of his final pay slip indicated he was paid Kshs. 28,062 being his 2 months' salary in lieu of notice. The claim under this head was therefore not established. But in the final prayers granted by the court, salary in lieu of notice is stated to have been awarded. The court also awarded the respondent costs of the claim and interest from the date of entry of judgment till payment in full. On the appeal, there are no Submissions by the Appellant. The respondent submitted that, since the trial court had found that the respondent had proved the termination was wrongful, unlawful, and procedurally unfair, the court had discretion to award compensation up to 12 months' salary, and, in its wisdom, awarded compensation equivalent to 9 months' salary. The respondent also submitted that the trial court, in its judgment, found that the claim for 2 months’ pay in lieu of notice was not established. The appellant cannot, therefore, appeal on the ground that was declined, as what is reflected in the final reliefs is a typographical error that could be addressed under review by the court. The respondent relies on the case of **Orix Oil Kenya Ltd v Paul Kabeu & 2 Others [2014] eKLR, which holds** that costs follow the event, and the ground of appeal on costs has no basis. **Determination** This being a first appeal, the court may review the record, reassess the findings, and reach its own conclusions. However, consider that the trial court had the opportunity to see and hear the witnesses and thus grant this allowance. Although the appellant did not file any written submissions on the appeal, the grounds of appeal are clear insofar as they relate to the award of damages, two months' pay in lieu of notice, costs of the suit plus interest, and the review of the evidence. The respondent’s case was that the appellant unfairly terminated his employment as security supervisor. The appellant’s case is that the respondent was negligent in the performance of his duties. He was invited to a disciplinary hearing and admitted to the misconduct that led to his termination. In the notice to show cause dated 9 January 2023, the appellant required the respondent to explain his conduct regarding a reported theft, but the respondent failed to address it as the supervisor. On the same day, 9 January 2023, the respondent replied to the show cause notice and stated that: *… it was on 3/1/2023 when the harvester, while clocking out the machines, was found with a small piece of polythene paper by Joseph … for me, I saw it was not something big, so I decided to forgive him. It's today, 9/1/2023, when Joseph Lolel wants to … ask about the matter.* *I, Dismus, accept all that I have said towards that harvester and nothing I was given or bribed, as it is being said by Joseph Lolel …* The respondent admitted to his mistake. He wrote it in his hand. The burden was on the appellant to decide on the sanction to issue. The invitation to the disciplinary hearing upon the admission was immaterial, as held in [**Galgalo Jarso Jillo v Agricultural Finance Corporation [2021] KEELRC 323 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/323/eng%402021-11-25). Where the employee has admitted to the charge(s), a disciplinary hearing is unnecessary. However, a diligent employer, keen to ensure due process, may conduct a hearing to determine whether the employee engaged in misconduct or gross misconduct. In **Evans Kamadi Misango v Barclays Bank of Kenya Limited [2015] KEELRC 1189 (KLR),** the court held that where the employee admitted that he did not follow the procedures provided in undertaking his duties, the employer was justified in issuing the sanction of summary dismissal. In **Onyango v Watu Credit Limited [2026] KEELRC 1305 (KLR),** the court emphasized that where the employee admitted lapse in being diligent in his duty, this is not only a dereliction of duty but also a breach of his employment contract and constitutes negligence as defined under section 44(3) and (4) of the Act. The admission upon the notice to show cause allowed the respondent the option for a sanction. The findings by the learned magistrate that the respondent was not accorded sufficient time to respond to the show-cause notice and the disciplinary hearing, on the face of his admission, were in error. There was due process, and the resulting termination of employment was based on the admission of dereliction of duty. The appeal is with merit in this regard. The award of notice pay and compensation is not justified. These are set aside. On costs and interest awarded, under section 12(4) of the Employment and Labour Relations Court Act, costs or interest do not follow the cause. Justification for the award of costs must issue. Although discretionary, upon award, reasons for such award should suffice. The foundation of the appeal thus addressed, costs awarded, and interest are also set aside. **Accordingly, the appeal is with merit and is hereby allowed. Judgment in Kajiado MCELRC E021 of 2023 is hereby set aside in its entirety. The appellant did not file submissions. No Order on costs.** **Delivered in open court this 31st day of August 2026** **M. MBARŨ** **JUDGE** **In the presence of:** **Court Assistant: Kemboi** **……………………………………………… and …………………………………..………**