https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1387

Kiago v Roben Aberdare Limited (Employment and Labour Relations Appeal E033 of 2025) [2026] KEELRC 1387 (KLR) (21 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1387 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nyeri Employment and Labour Relations Appeal E033 of 2025 SC Rutto, J May 21, 2026 Between Jonah Muriithi Kiago Appellant and Roben Aberdare Limited Respondent (Being an Appeal from the Judgment delivered on 17th June 2025 by Hon. Faith Munyi Senior Principal Magistrate in Nyeri Chief Magistrate Employment and Labour Relations Cause No E039 of 2023) Judgment 1.The Appellant, Jonah Muriithi Kiago, instituted proceedings before the Chief Magistrate’s Court at Nyeri in CMELRC Cause No. E039 of 2023, namely Jonah Muriithi Kiago v Roben Aberdare Limited. In his Memorandum of Claim, the Appellant pleaded that he had been employed by the Respondent as a heavy commercial/truck driver from the year 2017 until 4th September 2022, when his employment was summarily terminated. He maintained that the termination was effected in disregard of the rules of natural justice. 2.The Appellant further asserted that he was neither furnished with reasons for the termination nor accorded any justification for the same. It was his case that the termination of his employment was unlawful, unprocedural, and unfair. Consequently, he sought payment in lieu of notice, underpayments, accrued leave, service pay, gratuity, compensation for unfair termination, as well as remittance of NSSF and NHIF contributions. 3.In response to the Claim, the Respondent contended that its fuel monitoring system detected that the Appellant had been siphoning fuel from motor vehicle registration number KCQ 373R, which had been assigned to him, during the months of August and September 2022. 4.The Respondent further averred that, on 7th September 2022, the Appellant was issued with a Notice to Show Cause requiring him to explain why disciplinary action should not be taken against him. Thereafter, he was subjected to a disciplinary hearing on 12th September 2022, during which he allegedly failed to exonerate himself, resulting in his summary dismissal on 13th September 2022. 5.According to the Respondent, the Appellant had engaged in gross misconduct, thereby justifying his summary dismissal from employment. 6.The Respondent further asserted that the Appellant was not entitled to the reliefs sought. It further contended that some of the claims, being in the nature of continuing injuries, were statute-barred pursuant to Section 90 of the Employment Act. 7.Consequently, the Respondent urged the trial Court to dismiss the Claim with costs and to issue a declaration affirming that the termination of the Appellant’s employment was lawful and fair. The Respondent also sought an order for payment of Kshs 57,820/- allegedly representing the value of lost fuel, and prayed that the same be set off against any sums found due to the Appellant. 8.The matter proceeded for hearing before the trial Court through oral testimony and production of documentary evidence, followed by the filing of written submissions. The Appellant testified in support of his case, while the Respondent called one witness, namely Ambrose Kinyua, its General Manager. 9.Upon evaluating the evidence and submissions tendered by the parties, the learned Trial Magistrate dismissed the Appellant’s claim with costs. In her judgment, the learned Trial Magistrate found that the Respondent had complied with Section 41 of the Employment Act and that the Appellant had been accorded an opportunity to respond to the allegations forming the basis of the contemplated termination. The trial Court further held that the Respondent had proved, on a balance of probabilities, the validity of the reason for termination. Conversely, the Trial Court found that the Appellant had failed to establish that the termination of his employment was unfair. Consequently, the trial Court held that the Appellant was not entitled to compensation for unfair termination. In dismissing the claim, the Court found that the Appellant was only entitled to the dues specified in the termination letter, namely salary in lieu of notice, salary earned up to 21st April 2022, and accrued leave days. The Appeal 10.Dissatisfied with the foregoing determination, the Appellant preferred the present Appeal and advanced the following seven (7) grounds in support thereof:1)That the Learned Honourable Magistrate erred in law and fact in applying the wrong principles of law and thus erroneously dismissing the appellant's prayers as contained in the statement of claim thereby occasioning a gross miscarriage of Justice.2)That the Learned Honourable Magistrate erred in law and fact in applying the wrong principles of law in arriving at a finding that a fair administrative action was followed in dismissing the appellant from his employment, thereby occasioning a gross miscarriage of justice.3)That the Learned Honourable Magistrate erred in law and fact in finding that the Appellant was only entitled to benefits offered vide the termination letter and further dismissing the claim occasioning a gross miscarriage of justice.4)That the Learned Honourable Magistrate erred in law and fact by taking into account irreverent (sic) arguments by the Respondent with total disregard to the laws and principles applicable to Employment and Labour Laws filed by the Appellant.5)That the Learned Honourable Magistrate erred in law and fact by taking into account irreverent (sic) considerations thus among (sic) at an erroneous finding in the Judgment occasioning a gross miscarriage of Justice to the Appellant.6)That the Learned Trial Magistrate erred in Law and in fact in ignoring the erudite input research and presentation in the course of the hearing and conclusion of this matter.7)That the Learned Honourable Magistrate erred in law and act in failing to consider conventional in cases of similar nature. 11.Consequently, the Appellant seeks the following orders from this Court:a)That this appeal herein be allowed.b)That the Judgment and decree thereto of the lower Court be quashed and set aside.c)That the Court do grant any other relief that it may deem fit and just to grant. The Submissions 12.The Appeal was canvassed by way of written submissions. On his part, the Appellant submitted that the lower court failed to resolve the evidential conflict and instead accepted the Respondent’s documents at face value without subjecting them to rigorous scrutiny, which, in his view, constituted a misdirection in law. 13.It was further submitted that the fuel monitoring report relied on by the Respondent was hearsay evidence as the analyst who prepared it did not testify, and no direct evidence linked the same to the Appellant. To this end, the Appellant contended that the lower court applied wrong legal principles by prioritizing uncorroborated documentary evidence over his testimony, thus occasioning a miscarriage of justice. 14.The Appellant further submitted that the lower court erred by confining the remedies due to him to those mentioned in the letter of termination, thereby disregarding Section 49 of the Employment Act. 15.It was further posited by the Appellant that the lower court took into account irrelevant arguments from the Respondent, such as the unsubstantiated fuel loss, while disregarding the mandatory provisions of Sections 43 and 45 of the Employment Act. 16.On the other hand, the Respondent submitted that it met the criteria under Sections 43 and 45 of the Employment Act. It was the Respondent’s position that the judgment meticulously analysed the evidence and the trial magistrate correctly found that it had discharged the dual burden of proving the reason for the dismissal and demonstrating compliance with fair procedure. 17.It was the Respondent’s further submission that the procedure followed was a legal adherence to Section 41 of the Employment Act. 18.The Respondent further posited that the entitlement to terminal benefits is strictly circumscribed by the nature of dismissal. In the same vein, the Respondent submitted that upon a valid finding of gross misconduct justifying summary dismissal, under Section 44(3) and (4) of the Employment Act, an employee is only entitled to accrued dues up to the date of dismissal. In this regard, the Respondent argued that to grant the Appellant further benefits would be to subvert the provisions of the Employment Act. Analysis and Determination 19.This being a first appellate Court, it is duty-bound to reconsider and re-evaluate the evidence on record alongside the impugned Judgment, and thereafter arrive at its own independent determination. In this regard, the Court must bear in mind that it neither saw nor heard the witnesses testify firsthand. This principle was reiterated in Abok James Odera t/a A.J Odera & Associates vs John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, where the Court stated as follows:“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” 20.Bearing in mind the Court’s mandate at this appellate stage, and upon considering the grounds set out in the Memorandum of Appeal, the entire record of appeal, and the respective submissions of the parties, the Court has isolated the following issues for determination:a)Whether the trial Court erred in finding that the Respondent had a valid and fair reason for terminating the Appellant’s employment;b)Whether the trial Court erred in holding that the Appellant was accorded a fair hearing prior to the termination of his employment; andc)Whether the Appellant is entitled to the reliefs sought before the trial Court. Valid and fair reason for termination? 21.The record bears that, in her judgment, the learned Trial Magistrate found that the Respondent had proved its case on a balance of probabilities and that the reason for the Appellant’s termination from employment was valid. 22.Section 43(1) of the Employment Act places the burden of proving the reasons for termination upon the employer, failing which the termination is deemed unfair. Further, Section 45(2)(a) and (b) of the same Act provides that a termination is unfair where the employer fails to demonstrate that the reason is valid, fair, and related to the employee’s conduct, capacity, or compatibility, or to the employer’s operational requirements. 23.In the present case, it is evident that the Appellant was summarily dismissed from employment on allegations that he siphoned fuel from the Respondent’s motor vehicle, KCQ 373R, assigned to him. 24.At the trial, the Respondent produced a fuel report covering the period between 31st August 2022 and 4th September 2022 in respect of the said motor vehicle KCQ 373R assigned to the Appellant. 25.A review of the said report reveals notable variations in fuel consumption for the same vehicle over similar distances. For instance, on 31st August 2022 at 18:20 hours, the vehicle reportedly consumed 99.42 litres of fuel over a distance of 12.92 kilometres, whereas earlier the same day at 15:47 hours and 16:33 hours, it recorded consumption of 14.17 litres and 15.4 litres respectively over the same distance of 12.92 kilometres. 26.Similarly, on 2nd September 2022 at 10:39 hours, the records indicate a consumption of 207.27 litres of fuel over 81.65 kilometres, while at 12:22 hours the same day, the vehicle is shown to have consumed 13.47 litres over a slightly longer distance of 90.08 kilometres. 27.The foregoing inconsistencies between fuel consumption and distance travelled by the same vehicle on the same dates give rise to a reasonable inference that the Appellant was involved in the unexplained fuel discrepancies. 28.Pursuant to Section 43(2) of the Employment Act, the reasons for termination are those which the employer genuinely believed to exist at the time of termination and which prompted the decision to terminate the employment contract. In this regard, the applicable standard of proof in such cases is on a balance of probabilities, and not beyond reasonable doubt. 29.This position is reinforced by the Court of Appeal decision in Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others [2019] eKLR, where it was held that in employment disputes, the employer is only required to demonstrate the reasons it genuinely believed to exist at the time of termination, and not to prove misconduct beyond reasonable doubt. The Court further emphasized that it is not for the court to substitute its own view of “reasonable grounds” for that of the employer. I respectfully concur with this position. 30.Equally, guided by the foregoing authority, I find that in the present case, the Respondent was only required to demonstrate that the reasons for the Appellant’s termination were those it genuinely believed to exist at the time. In the present case, the reasons in question related directly to the Appellant’s honesty in the handling of the Respondent’s resources, specifically fuel. As such, the Respondent was not required to establish beyond reasonable doubt that the Appellant siphoned fuel from the said motor vehicle. 31.It is not in dispute that the Appellant was entrusted with the Respondent’s motor vehicle and, by extension, fuel resources, and was required to manage and account for the same. Honesty was therefore an essential element in sustaining the employment relationship. Once doubts arose from the fuel consumption records with respect to the motor vehicle assigned to the Appellant, the element of trust between the parties inevitably dwindled. 32.In the circumstances, the Court does not doubt that it would have been difficult for the Respondent to continue entrusting the Appellant with the same responsibilities of driving its motor vehicle. It can therefore be stated that the Appellant’s conduct contributed to a breakdown in the employment relationship. 33.In the Canadian decision of McKinley v BC Tel (2001) 2 S.C.R. 161, the Court held as follows:“Whether an employer is justified in dismissing an employee on the grounds of dishonesty is a question that requires an assessment of the context of the alleged misconduct. More specifically, the test is whether the employee’s dishonesty gave rise to a breakdown in the employment relationship. This test can be expressed in different ways. One could say, for example, that just cause for dismissal exists where the dishonesty violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or directly inconsistent with the employee’s obligations to his or her employer.” 34.In my considered view, the circumstances of this case do not portray the Appellant as an honest and trustworthy employee. 35.In light of the foregoing, the Court finds that the Respondent had a fair and valid reason to subject the Appellant to disciplinary proceedings and, ultimately, terminate his employment. 36.In arriving at this conclusion, I am guided by the holding of Ngcobo JA in Nampak Corrugated Wadeville v Khoza (JA 14/98) [1998] ZALAC 24 to the effect that the determination of an appropriate sanction is a matter which is largely within the discretion of the employer and a court should, therefore, not lightly interfere with the sanction imposed by the employer unless the employer acted unfairly in imposing the sanction. 37.In the final analysis, this Court finds no basis upon which to interfere with the finding of the learned Trial Magistrate. Whether the trial Court erred in finding that the Appellant was accorded a fair hearing prior to the termination of his employment 38.In its judgment, the trial Court found that the Respondent had complied with the requirements of Section 41 of the Employment Act, having accorded the Appellant an opportunity to be heard regarding the allegations that informed the contemplated termination of his employment. 39.The obligation to observe procedural fairness is generally anchored under Section 45(2)(c) of the Employment Act. More specifically, Section 41 sets out the procedure an employer must follow before terminating employment on grounds of misconduct, poor performance, or physical incapacity. The provision requires the employer to notify the employee of the allegations facing him or her and to accord the employee an opportunity to respond in the presence of either a fellow employee or a shop floor union representative of his or her choice. 40.At the trial Court, the Respondent produced a Notice to Show Cause dated 7th September 2022, in which it was alleged that the Appellant had siphoned fuel from the motor vehicle assigned to him. The Appellant was required to submit a written response by 9th September 2022. 41.The Respondent further produced a letter dated 10th September 2022 inviting the Appellant to attend a disciplinary hearing scheduled for 12th September 2022. Further exhibited were minutes said to have emanated from the disciplinary hearing conducted on that date. 42.In his Memorandum of Claim, however, the Appellant specifically pleaded that he was never issued with a Notice to Show Cause and that no disciplinary hearing was conducted prior to the decision to dismiss him from employment. 43.Notably, the Respondent did not indicate or suggest the manner in which the Notice to Show Cause dated 7th September 2022 was served upon the Appellant. Equally, there is no indication as to how the invitation to the disciplinary hearing was transmitted to him. This is particularly significant given that neither document bears the Appellant’s signature acknowledging receipt. 44.Further, despite the Appellant’s contention that he never received the Notice to Show Cause or the invitation to the disciplinary hearing, DW1 (Ambrose Kinyua) did not address the issue in his witness statement, which he adopted as his evidence-in-chief during the trial. 45.It is also notable that during cross-examination, the Appellant maintained that he had not been served with the Notice to Show Cause and stated that he was merely contacted by phone and requested to attend the disciplinary hearing. 46.In light of the foregoing, the Court finds that the Respondent did not rebut the Appellant’s assertions regarding non-service of the Notice to Show Cause and invitation to the disciplinary hearing. 47.A review of Section 45(2)(c) of the Employment Act reveals that the burden rests upon the employer to demonstrate that the termination of employment was carried out in accordance with a fair procedure. 48.It was therefore incumbent upon the Respondent not only to produce the Notice to Show Cause and the invitation to the disciplinary hearing, but also to establish that the same had been duly served upon the Appellant within a reasonable time ahead of the hearing. 49.Consequently, although the Appellant may have attended the disciplinary hearing, the critical question remains whether he had prior knowledge of the allegations against him and whether he was afforded adequate time and opportunity to prepare and respond to them. 50.In this regard, the Court agrees with the holding of the Court of Appeal in Nebert Mandala Ombajo v Institute of Certified Public Accountants of Kenya (ICPAK), Nakuru Civil Appeal No. 62 of 2018, that disciplinary proceedings carry potentially grave consequences for an employee. The Appellate Court further held that, where serious allegations are involved, an employee must be granted adequate time to prepare psychologically and, where necessary, seek appropriate representation or advice. 51.In addition to the foregoing, despite the minutes of the disciplinary hearing indicating that the Appellant was taken through the system and shown the fuel refilling dates alongside the dates on which fuel was drained from his truck, it is unclear whether the fuel report and related documentation were furnished to him prior to the hearing to enable him adequately consider the allegations and prepare an appropriate response. 52.Having considered the totality of the circumstances herein, the Court is not persuaded that the process adopted by the Respondent in terminating the Appellant’s employment embodied the essential ingredients of a fair hearing, specifically, prior and adequate notice, sufficient disclosure of the allegations, and access to the documentary material relied upon during the disciplinary hearing. 53.In the end, the Court finds that the Appellant was not accorded a fair hearing prior to his summary dismissal from employment. To that extent, the learned trial magistrate fell into error in finding otherwise. Remedies? 54.Having found that the Appellant’s employment was terminated on the basis of a valid and fair reason, albeit through a procedurally unfair process, this Court awards him one (1) month’s salary in lieu of notice together with compensation equivalent to three (3) months’ gross salary. In making this award, the Court has taken into account the duration of the employment relationship as well as the Appellant’s own contribution to the termination. 55.Before the trial Court, the Appellant sought compensation for 34 accrued leave days. Notably, the Respondent neither disclosed the Appellant’s outstanding leave balance nor produced his leave records, despite the statutory obligation imposed under Section 74(1)(f) of the Employment Act requiring employers to maintain such records. As it is, the Respondent’s only response to the claim was that the outstanding leave days had been offset against the value of the allegedly siphoned fuel. In effect, the claim for accrued leave remained substantially uncontroverted. 56.That notwithstanding, Section 28(4) of the Employment Act prescribes the period within which annual leave ought to be taken and thereby limits indefinite accumulation of leave days. The provision requires annual leave to be taken within 12 consecutive months after it falls due, while any deferred leave must be utilised within 18 months following the end of the relevant leave-earning period. 57.Accordingly, and applying Section 28(4) to the present case, the Appellant is only entitled to recover accrued leave for a maximum period of 18 months, translating to 31.5 leave days, as opposed to the 34 days claimed before the trial Court. 58.The Appellant also sought payment of Kshs 109,118.00 on account of alleged salary underpayment over a period of 67 months. The Respondent stated that the Appellant was employed with effect from 1st March 2017. It is noteworthy that, in his Memorandum of Claim, the Appellant did not plead the specific monthly salary he earned during the subsistence of the employment relationship. However, during cross-examination, he stated that he earned Kshs 20,000.00 per month. 59.It is further evident that the Appellant computed the alleged underpayment using a flat monthly rate of Kshs 30,267.00 based on Legal Notice No. 2 of 2018 applicable to heavy commercial drivers stationed in Nairobi, Kisumu, and Mombasa cities. That approach was erroneous, as statutory minimum wages are periodically reviewed and vary depending on both the employee’s job classification and geographical location. 60.What’s more, the record bears that the Appellant was stationed in Mukurweini and was therefore not entitled to the minimum wage applicable to drivers operating within Nairobi, Kisumu, and Mombasa cities. 61.It must also be appreciated that the applicable statutory minimum wage changed from time to time during the Appellant’s employment and could not therefore be applied uniformly throughout the entire period. 62.With that being said, the Court now proceeds to determine whether the Appellant was underpaid as alleged in the Memorandum of Claim. 63.Since the Appellant was employed as a driver with effect from 1st March 2017 and stationed in Mukurweini, he was entitled, pursuant to Legal Notice No. 117 of 2015, to a consolidated monthly salary of Kshs 17,524.96. As he was earning Kshs 20,000.00 per month, it follows that he was not underpaid during the period between 1st March 2017 and 1st May 2017 when the minimum wage was subsequently revised upwards. 64.For the period between 1st May 2017 and 30th April 2018, the applicable statutory minimum wage for an employee in the Appellant’s category working in Mukurweini was Kshs 17,982.10. Upon inclusion of 15% house allowance, the applicable consolidated salary amounted to Kshs 20,679.42 pursuant to Legal Notice No. 112 of 2017. Given that the Appellant earned Kshs 20,000.00 per month, the Court finds that he was underpaid by Kshs 679.42 monthly during the said period. 65.With respect to the period between 1st May 2018 and 30th April 2022, the statutory minimum wage applicable to the employees in the Appellant’s category in Mukurweini stood at Kshs 18,881.21. Inclusive of the 15% house allowance, the applicable consolidated salary came to Kshs 21,713.39 pursuant to Legal Notice No. 2 of 2018. Since the Appellant continued earning Kshs 20,000.00 per month, the Court finds that he was underpaid by Kshs 1,713.39 monthly during the said period and is therefore entitled to the resultant shortfall. 66.For the period commencing 1st May 2022 up to 4th September 2022, the statutory minimum wage applicable to employees in the Appellant’s category in Mukurweini was Kshs 21,147.00 pursuant to Legal Notice No. 125 of 2022. Upon factoring in 15% house allowance, the applicable consolidated monthly salary rose to Kshs 24,319.05. Consequently, it is evident that the Appellant was underpaid by Kshs 4,319.05 per month during this period. 67.In the premises, the Court is satisfied that the Appellant suffered salary underpayments during certain periods of his employment and is entitled to compensation equivalent to the established underpayments. 68.The claim for service pay is declined in view of the Appellant’s admission during cross-examination that deductions towards the National Social Security Fund (NSSF) were made from his monthly salary. He therefore falls within the exclusion contemplated under Section 35(6) of the Employment Act. 69.The claim for gratuity equally fails for want of evidence demonstrating any contractual entitlement to such payment. Orders 70.In the final analysis, the Court allows the Appeal and makes the following orders:-a)The order of the trial Court dismissing the Appellant’s Claim is hereby set aside.b)The Appellant is awarded the sum of Kshs 24,319.05, being one (1) month’s salary in lieu of notice.c)The Appellant is further awarded compensation for unfair termination equivalent to three (3) months’ salary, amounting to Kshs 72,957.15.d)The Appellant is awarded unpaid leave for a period of eighteen (18) months in the sum of Kshs 25,535.00.e)The Appellant is awarded Kshs 8,152.92 (Kshs 679.41 × 12 months) in respect of underpayments from 1st May 2017 to 30th April 2018.f)The Appellant is awarded Kshs 82,242.72(Kshs 1,713.39 × 48 months) in respect of underpayments from 1st May 2018 to 30th April 2022.g)The Appellant is awarded Kshs 17,276.20 (Kshs 4,319.05 × 4 months) in respect of underpayments from 1st May 2022 to 4th September 2022, the date of termination of his employment.h)The total decretal sum of Kshs 230,483.04.i)Interest on the amount in (h) shall accrue at court rates from the date of this Judgment until payment in full. 71.The costs in this Court and at the trial Court shall be borne by the Respondent and shall be calculated based on the final award. DATED, SIGNED AND DELIVERED AT NYERI THIS 21ST DAY OF MAY 2026.………………………………STELLA RUTTOJUDGEIn the presence of:For the Appellant Mr. WambuguFor the Respondent Mrs. MaguaCourt Assistant NdatiOrderIn view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent direction of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court had been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.STELLA RUTTOJUDGE