https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1302

Jamii Telecommunication Limited v Suge (Appeal E181 of 2025) [2026] KEELRC 1302 (KLR) (18 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1302 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Appeal E181 of 2025 M Mbarũ, J May 18, 2026 Between Jamii Telecommunication Limited Appellant and Kipchumba Kipjiyai Suge Respondent (Being an appeal from the judgment of Hon. Christopher Yalwala delivered on 19 August 2025 in Mombasa CMELRC E025 of 2024) Judgment 1.The appeal arises from the judgment delivered on 19 August 2025 in Mombasa CMELRC E025 of 2024. The appellant is seeking that the judgment be set aside and replaced with a decision dismissing the claim with costs. 2.The background of the case is a claim filed by the respondent, asserting that he was employed by the appellant as a driver from 12 March 2018 to 26 November 2023, when his employment was terminated while he was on annual leave, and that notice was sent to his email address. His claim was that there was no notice to show cause before the termination of employment, and the due process under the law was not followed. This was in violation of sections 41, 43, and 44 of the Employment Act. he claimed the following:a.Notice pay Ksh. 26,000.b.12 months' compensation Ksh. 312,000.c.Salary for October 2023 Ksh. 26,000.d.Salary for December 2023 Ksh. 26,000.e.Certificate of service.f.Costs of the suit. 3.In response, the appellant admitted that the respondent was an employee under a written contract from 1 March 2018 to 18 October 2023. Termination of employment was preceded by a disciplinary committee held against the respondent for gross misconduct. The respondent was called from his annual leave to receive the communication and collect the notice maintaining his employment, which he declined. There was due process before termination of employment. On 4 September 2023, the appellant received complaints from its area manager in Mombasa regarding employees' malpractice and unlawful interception of the company network. Investigations revealed that the respondent was involved. On 26 September 2023, the respondent was invited to a disciplinary hearing for 28 September 2023. The communication was through a phone call at 0724866 ---, and he attended. The committee found that he had colluded with a colleague and a competitor, Telecoptics Solutions Limited (TSL), and hence summary dismissal was justified. Notice issued giving reasons and payment of terminal dues Ksh. 28,200, and a certificate of service was issued. The claims are without merit. 4.The learned magistrate heard the parties and held that the respondent’s employment was terminated unlawfully, contrary to section 41(2) of the Employment Act (the Act). There was no notice, warning or reasons for the termination of employment. The respondent was not issued a notice to show cause to attend and defend himself; hence, the ensuing termination of employment was unfair. The learned magistrate awarded the following dues:a.Compensation Ksh. 156,000.b.Notice pay Ksh. 26,000.c.Salary for October 2023 Ksh. 26,000.d.Costs of the suit. 5.Aggrieved by the judgment, the appellant has 8 grounds of appeal. that the learned magistrate erred in law and fact in finding that there was an unprocedural termination of employment and that there was no written notice to show cause, and thus failed to adhere to section 41 of the Act. There were disciplinary proceedings that the respondent did not challenge, yet the learned magistrate failed to take them into account. The awards were unjustified and a departure from the evidence. 6.On the appeal, parties agreed to file written submissions. Only the appellant complied. These are anlaysed in the body of the judgment. Determination 18.This is a first appeal. The court may review the record, reassess the finding, and reach a conclusion. However, consider that the trial court had the chance to see and hear the witnesses and hence, give this allowance. 19.Through a notice dated 18 October 2023, the application temporarily terminated the respondent’s employment through summary dismissal. The reasons were that he was in contravention of his employment contract by fraudulently colluding with his colleagues to work for a competitor, JSL, during working hours and by using company resources for personal gain. The respondent was also found to have had numerous unexplained M-Pesa transactions from one of JSL's directors, which were construed as proceeds of corrupt dealings. The respondent was found to have aided a competitor to unlawfully intercept JTL's internet infrastructure for the competitor’s use and advantage. More fundamentally, the respondent was found to have exceeded his mandate as a driver by engaging in an unauthorised assignment. 20.For these reasons, the appellant found the respondent to have been in breach of his contract of employment, which amounted to gross misconduct and fell within section 44 of the Act, allowing summary dismissal. 21.Sections 44(3) and (4) of the Act allow the employer to sanction summary dismissal where the employee is in breach of the employment contract or commits gross misconduct. The protection to the employee is section 41(2) of the Act, where he must be issued with notice, albeit short, to attend and make his representations, as held in Barclays Bank of Kenya Limited v Banking Insurance & Finance Union [2026] KECA 851 (KLR) and the case of Bamburi Cement Limited v William Kilonzi [2016] KECA 546 (KLR). 22.In the case of Standard Group Limited v Jenny Luesby [2018] KECA 353 (KLR), the court emphasised that, where the employee is found guilty of gross misconduct, and the employer invites the employee to a hearing and finds no justification for the misconduct, the sanction of summary dismissal is justified. 23.In this case, the respondent contended that he had not been issued a notice to show cause before the summary dismissal. However, his case revolved around a breach of his employment contract through collusion with a colleague and a competitor of the appellant, which facts he does not contest. He was invited to the disciplinary hearing on 28 September 2023, but he chose not to call another employee of his choice as guaranteed under section 41 of the Act. 24.The disciplinary committee minutes and the responses therein are not challenged. 25.Termination of employment by summary dismissal pursuant to section 44 of the Act, unlike an ordinary termination for misconduct under section 41(1) of the Act, allows for summary procedures. The employee can be called on short notice to respond to allegations of gross misconduct immediately upon their occurrence. In the case of a breach of the employment contract where the respondent was working for a competitor of the appellant, such a fundamental breach of the employment relationship allows summary dismissal. 26.In this case, the summary dismissal of the respondent was lawful and justified.The award of compensation and notice pay is not justified.The judgment of the trial court is set aside to this extent. 27.On the award of salary arrears for October 2023 at Ksh. 26,000, the termination of employment was with effect from 18 October 2023. The monthly wage was Ksh. 26,000. 28.For the 18 days worked in October 2023, the respondent was only entitled to Ksh. 15,600 only. In the notice terminating employment dated 18 October 2023, the appellant indicated that the respondent would be paid his terminal dues upon clearance and be issued with a Certificate of Service. 29.The appellant filed the last payment statement for October 2023 with the following dues:a.24 days' work in October 2023, Ksh. 24,000.b.6.5 leave days Ksh. 5,600.Gross pay Ksh. 29,600. 32.The appellant duly complied, and the appeal is found with merit and is hereby allowed. 33.As to costs, the appeal was successful on all fronts, and costs are due to the lower court and on this appeal. 34.Accordingly, judgment of the trial court in Mombasa CMLERC No. E025 of 2024 is set aside in its entirety. Costs for the trial court and appeal awarded to the appellant. DELIVERED IN OPEN COURT AT NAIROBI, THIS 18TH DAY OF MAY 2026M. MBARŨJUDGEIn the presence of:Court Assistants: Catherine, Kemboi and Omar……………………………………………… and…………………………………..…………..