Milambo v Furrer (Appeal E375 of 2025) [2026] KEELRC 1778 (KLR) (29 June 2026) (Judgment)

Milambo v Furrer (Appeal E375 of 2025) [2026] KEELRC 1778 (KLR) (29 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1778 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Appeal E375 of 2025 M Mbarũ, J June 29, 2026 Between Jane Mwikali Milambo Appellant and Samira Furrer Respondent (Being an appeal from the judgment of Hon. Lucy Ambasi delivered on 30 September 2025 in Nairobi MCELRC No. 176 of 2018) Judgment 1.The appeal herein arises from the judgment delivered on 30 September 2025, Nairobi Cause No. 176 of 2018. The appellant seeks that the judgment of the trial court be set aside and the prayers sought in the claim be allowed with costs. 2.The background to the appeal is a claim filed by the appellant. The case was that, in 2011, the respondent issued her a letter of appointment after she had been employed as a casual worker. There were clashes between the parties, and in 2002, the appellant left her employment with the respondent under acrimonious circumstances. In 2011, the respondent called the appellant through her brother to assist in running the consulate. The appellant's aged subject OT payment of Ksh. 15,000 per month for work at the Consulate of Gabon. The appellant worked well until 5 October 2015, when a robbery occurred at the Gabonese Consulate. Despite the appellant being a victim during the robbery, the respondent falsely accused her of orchestrating the event, leading to her arrest and 3 years' prosecution. This led to termination of employment, mental distress, loss and damage. The appellant had to pay legal fees for her defence in the amount of KSh. 100,000 in damages for her reputation and financial strain, and the respondent proceeded to destroy her documents, which were left at her workplace. Throughout the criminal prosecution, the respondent did not attend court. The case was dismissed on 26 February 2018 as there was no case to answer. This resulted in an unfair termination of employment devoid of notice or due process.The appellant claimed the following dues:a.Notice pay Ksh. 15,000.b.General damages for one year's salary for unlawful termination.c.Special damages Ksh. 100,000.d.Damages for breach of the appellant’s constitutional rights.e.Costs of the suit. 3.In response to the counterclaim, the respondent’s case was that the applicant was an employee and that, on 21 September 2015, a robbery occurred at the Gabonese consulate, which was reported to the authorities for investigation. A decision was taken to charge the appellant with 3 others in Chief Magistrate Milimani Criminal Case No. 1715 of 2015. The appellant deserted duty after being charged in Criminal Case No. 1715 of 2015, and the allegations of termination of employment have no basis. The police carried out investigations and preferred charges against the appellant. The matter was dismissed for lack of evidence, but it does not take into account the fact that the appellant deserted duty after the robbery. Upon desertion of duty, the claims made are without merit. The respondent counterclaimed. 4.The counterclaim is that the appellant deserted duty without notice and was thereupon paid in lieu thereof at Ksh. 15,000. Following the robbery aided by the appellant, the respondent incurred losses and claims the same in special damages from the appellant:a.Loss of $5,000.b.Loss of 2,000 Swiss Francsc.Loss of ksh. 200,000.d.Two Swiss watches.e.Binoculars.f.11 phones.g.Gold rings and necklaces.The respondent thus counterclaimed for these losses and seeks costs. 5.The learned magistrate heard the parties and held that the appellant was implicated in a robbery and that the summary dismissal was justified. The termination of employment was hence procedural and substantively lawful. The claim was dismissed. 6.The learned magistrate also found that the counterclaim had not been proved and hence dismissed it, and each party was to bear its costs. 7.Aggrieved by the judgment, the appellant argues that the learned trial magistrate erred in law and fact in finding that the appellant deserted duty while she was in police custody after her arrest and remand for two months. After the arrest, the respondent terminated her employment without due process or by failing to return her personal goods from the office. 8.Other grounds of appeal: the learned magistrate failed to find that, after her acquittal, she could not return to work since her employment had been unlawfully terminated. The finding that the appellant was implicated in the robbery and, hence, the justified summary dismissal, was in error, as there was an acquittal. There were contradictory findings that the appellant deserted duty and, on the other hand, that the summary dismissal was justified. Despite the summary dismissal, the appellant was entitled to due process under sections 41 and 44 of the Employment Act. 9.The learned magistrate erred in law and fact in failing to apply the principles set out in Digital Security Services v Angatia [2025] eKLR, namely that in cases of desertion or absenteeism, an employer is required to issue notice to the employee and to copy the Labour Officer. The procedures under section 41 of the Employment Act were not adhered to, and the appeal should be allowed with costs. 10.On the appeal, the parties filed written submissions, which are analysed in the findings. Determination 11.This being a first appeal, the court is called upon to review the entire record, reassess the trial court's findings, and reach a conclusion. However, take into account that the trial court had the chance to see the witnesses. 12.It is undisputed that the appellant was an employee of the respondent, earning KSh. 15,000 per month. 13.It is also uncontested that on 5 October 2015, a robbery took place at the Gabonese Consulate, and the appellant was arrested together with other persons and charged in Milimani Magistrates' Court in Criminal Case No. 1715 of 2015.The appellant was acquitted of the offence. 14.The claim was that the respondent terminated employment on 5 October 2015 without due process. No party has filed the notice terminating employment. 15.The respondent asserted that the appellant deserted duty. There is a counterclaim claiming notice pay and the loss following the robbery at the Gabonese consulate. 16.The uncontested fact is that the appellant was last on the shop floor on 5 October 2015 when the robbery occurred, and she was arrested and remained in custody for two months. 17.The learned magistrate considered these facts and held that the appellant was employed as a house help by the respondent, such that it was an intimate position that required a high degree of fidelity. The appellant was implicated in a robbery, and the summary dismissal was justifiable. 18.However, summary dismissal is allowed under section 44 of the Employment Act (the Act) for gross misconduct. The employer is permitted to impose such a sanction, subject to compliance with section 41(2) of the Act. It requires that: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 be dismissed on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), make. 19.The employee is entitled to notice and a hearing. Even in a case where the employee has deserted duty and fails to attend work due to arrest and incarceration, the due process under section 41(2) of the Act is mandatory. 20.Indeed, as referenced by the appellant in the case of Digital Security Services v Angatia [2025] eKLR, where the employee is alleged to have deserted duty, under section 18(5)(b) of the Act, the employer must issue notice severing the employment relationship and copy the Labour Office of such fact. This position is reiterated inAbleey v Kenya Airports Authority [2024] KEELRC 1410 (KLR), where the court emphasized that an employer who terminates the services of an employee on grounds of abscondment or desertion has to demonstrate and prove that the employee had no intention of resuming work. 21.In Evans Ochieng Oluoch v Njimia Pharmaceuticals Limited [2016] eKLR, the court held that it is not enough for an employer to state that an employee has deserted duty. The law is that an employer alleging desertion against an employee must show efforts to reach out to the employee and to put them on notice that termination of employment on this ground is under consideration. 22.Despite the respondent’s knowledge that the appellant had been arrested and was facing criminal charges, no notice was issued requiring attendance on the shop floor to respond to any allegations. Equally, there is no notice formally ending the employment relationship. The employer has the duty to end the employment relationship and give reasons. 23.Although the respondent employed the appellant as a household member, the due process under sections 41 and 44 of the Act was imperative. 24.In this regard, the employment was terminated unlawfully. Without the respondent following due process or issuing a notice to bring the employment relationship to a close, there was no justification for the termination of the employment.Notice pay is due at the last wage of Ksh. 15,000. 25.Compensation is also due. The appellant worked for the respondent from 2011 to 2015, a period of 4 years. Compensation of 4 months is hereby found appropriate at the wage of Ksh. 15,000 per month, the total due is Ksh. 60,000. 26.On the claim for special damages of Ksh. 100,000, the criminal report was made to the police, who investigated and charged the appellant. The respondent fulfilled their civic duty by reporting a robbery. 27.Also, a claim of special damages is based on the profession. There is no evidence of such expense. 28.In the claim for damages for breach of constitutional rights, the unlawful and unfair termination of employment is addressed and redressed as analysed above. 29.Regarding the claim for costs, the analysis above demonstrates that the appellant’s claim before the trial court was well-founded. The costs of the trial court proceedings and the appeal are justified. 30.Accordingly, judgment in Nairobi Cause No. 176 of 2018 is hereby set aside. Judgment is entered for the appellant against the respondent in the following terms:a.There was an unlawful and unfair termination of employment.b.Compensation Ksh. 60,000.c.Notice pay Ksh. 15,000.d.Costs of the appeal and the trial court proceedings. DELIVERED IN OPEN COURT THIS 29TH DAY OF JUNE 2026M. MBARŨJUDGEIn the presence of:Court Assistant: Samuel Maruga………………………………….… and ……………………………………..