https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1597

Kimita v General Engineering Works Limited (Appeal E274 of 2025) [2026] KEELRC 1597 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1597 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Appeal E274 of 2025 NJ Abuodha, J June 12, 2026 Between Joseph Nganga Njaga Kimita Appellant and General Engineering Works Limited Respondent (Being an appeal from the judgment of the Hon. E. Riany Principal Magistrate delivered on 23rd July 2025 delivered in Magistrates Civil Employment and Labour Relations Cause No. E189 of 2022 Milimani Commercial Courts Nairobi) Judgment 1.Through the Memorandum of Appeal dated 22nd August 2025, the Appellant appeals against the whole of the Judgment of Hon. E. Riany Principal Magistrate. 2.The Appeal was based on the grounds that:i.That the learned Magistrate erred both in law and in fact in failing to properly or at all appreciate the Appellant’s case as presented in his Memorandum of Claim as amended on the 27th of April 2022.ii.That the learned Magistrate erred both in law and in fact in failing to properly or at all understand the purport and effect of the Appellant’s letter dated 12th July 2021.iii.That the learned Magistrate erred both in law and in fact in proceeding as if the Respondent had presented any case and or defence before when the record shows the Respondent closed its case without and or properly adducing any evidence thereby leaving the Appellant’s case unchallenged.iv.That the learned Magistrate erred both in law and in fact in improperly relying on testimony of a witness who was stood down before being given up to be cross examined by or on behalf of the Appellant thereby breaching the Appellant’s constitutional right of a fair trial under Article 50 of the Constitution of Kenya.v.That the learned Magistrate erred both in law and in fact in concluding without evidence that the Appellant’s alleged action was in clear violation of workplace policy thereby arriving at an erroneous judgment.vi.That the learned Magistrate erred both in law and in fact in misapprehending the purport and effect of the right to substantive and procedural fairness mandatorily required of an employer under the Employment Act.vii.That the learned Magistrate erred both in law and in fact in concluding that the Appellant’s written response to the notice to show cause obviated the need for a subsequent hearing thereby completely re-writing the statutory and contractual obligations of the Respondent.viii.That the learned Magistrate erred both in law and in fact in failing to find in terms of clause 22 of the Collective Bargaining Agreement, that the alleged conduct of the Appellant even if it were to be proved could only entitle the Respondent to enter a warning in the employment records and a notification to the shop steward and/or the union given the Appellant’s continued service between 24th June 2021 and 14th July 2021. 3.The Appellant consequently prayed that the appeal be allowed with costs and the whole of the judgment of Chief Magistrate’s Court at Nairobi (Honourable E. Riany (PM) delivered on 23rd July, 2025 in MCELRC E189 of 2022 be set aside and judgment entered in favour of the appellant as prayed in the amended memorandum of claim dated 27th April, 2022. 4.The Appeal was disposed of by written submission Appellant’s Submissions 5.The Appellant’s Advocate, Mr. Waithaka submitted among others that although the appellant admitted being in possession of alcoholic substance, there was no evidence presented before the court to demonstrate that he was drunk as well at the material time. In this regard counsel relied on the case of John Rioba Maugo v. Riley Falcon Security Services Ltd [2016]eKLR where the court held that drinking alone or smelling alcohol per se was not a ground for summary dismissal and that section 44 specifically provides that the employee was liable for dismissal only if during working hours he became intoxicated that renders him unwilling or incapable to perform his work properly. Counsel therefore submitted that the termination of the respondent on account of possession of an alcoholic substance alone was harsh, oppressive and substantively unfair. According to clause 22 of the CBA, the appellant’s conduct if were proved could have earned a warning and not a dismissal. 6.Regarding the evidence presented before the court, counsel submitted that on 24th June, 2025, Jagdeep Singh was testifying for the defence and upon adopting his witness statement as his evidence in chief, he purported to produce documents as exhibits but the appellant’s counsel objected on the ground that they had not been filed. The hearing was therefore adjourned to 2nd July, 2025 and on that date, the respondent’s counsel was absent and the defence case was closed without cross-examination. Counsel therefore submitted that the finding by the trial court that the nature of the appellant’s work as a machine operator required high level of alertness and a high standard of responsibility and that presence of alcohol posed a risk to both the respondent and others, thereby justify the dismissal was improper as the court relied on the evidence of a witness who had been stood down and not cross-examined by the appellant. This in the counsel’s view was erroneous since the defence case was closed without adducing evidence. In this regard counsel relied on the case of Kidero & 4 others v. Waititu [2014] KESC 11 where the Supreme Court struck out the direct examination of a returning officer who was not cross-examined. Counsel further submitted that for the termination of employment to pass the test of fairness, there must be both substantive justification and procedural fairness and relied on section 43 of the Employment Act and among others the cases of Evans Kamadi Misango v. Barclays Bank of Kenya [2015]eKLR and KRA v. Reuwel Waithaka Gitahi & 2 Others [2019]eKLR. 7.Regarding the reliefs sought, Counsel submitted that the appellant prayed for gratuity, service pay and damages. The appellant had sought for service pay for 12 years, per each complete year of service at Kshs. 759, 237.23 based on the ground that the CBA at clause 28 provided for payment of service gratuity for employees who had served more than 10 years, The appellant also prayed for payment of two months’ salary in lieu of notice as per clause 11 of the CBA totalling to Kshs. 156,668/- According to Counsel the trial court misapprehended the claimant’s suit and was therefore entitled to be awarded the same by this court. Respondent’s Submissions 8.The Court did not find submissions by the respondent in the file despite direction on 26th January, 2026 that they file the same within 14 days of the directions. Determination 9.The court has considered the grounds in the Memorandum of Appeal, the Record of Appeal and the submissions filed by the appellant and authorities relied on and would as usual state that it is now settled law that the duty of the first appellate court is to re-evaluate the evidence in the subordinate court both on points of law and facts and come up with its own findings and conclusions as was held in the often-cited case of Selle vs Associated Motor Boat Company Limited [1968] E.A 123 where it was stated thus:-An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities……..or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”And further in the case of Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, where it was stated that:-“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.” 10.The Judgment of the trial court was that the appellant’s claim before the trial court was dismissed after that court found that the respondent was justified in dismissing the appellant for being in possession of alcoholic substance while at work. On the issue the trial court observed:“…the facts presented show that the claimant was found in possession of a bottle of liquid while on duty, which he insisted was a herbal remedy. The respondent took steps to test the substance which was confirmed to be alcoholic. The claimant was thereafter summarily dismissed for gross misconduct…the claimant did not dispute being in possession of the liquid while on duty, which he insisted was a herbal in nature…the employer followed up by testing it and confirmed presence of alcohol, which was a clear violation of workplace policy…the claimant argues that he was not subjected to a disciplinary hearing. However, this must be weighed against the seriousness and immediacy of the misconduct putting into consideration the nature of the claimant’s job as a machine operator, which required high level of alertness and high standard of responsibility…the presence of alcohol posed a risk to both the claimant and others… although section 41 of the Employment Act requires that an employee be notified of the reasons for termination and given an opportunity to be heard, the issuance of the show cause letter and employees reply in the form of apology indicate the claimant was accorded opportunity to explain himself. There is no evidence that he requested for a hearing or representation by a union or colleague” 11.From the above, it is evidently clear that the trial court did not take into account the fact that the respondent’s witness was stood down after adopting his statement but rejection of the exhibits since they were not filed and the fact that the respondent’s case was closed without according the appellant the opportunity to cross examine the respondent’s witness on the allegation that a test was carried out and established that the liquid the appellant had in his possession was not herbal remedy as alleged but alcohol. Further, no report of such test was produced before the court. The issue therefore remained the appellant’s word against the untested testimony by the respondent. It was there erroneous for the trial court to believe untested facts and based its decision on the same. 12.Even if it were true that the substance was alcoholic, that alone was not sufficient ground for dismissal since there was no allegation that the appellant was intoxicated to the extent that he was unable to perfor his duties. As rightfully submitted by counsel for the appellant and as was held in the case of John Rioba Maugo v. Riley Falcon Security Services Ltd [2016]eKLR, that drinking alone or smelling alcohol per se is not a ground for summary dismissal and that section 44 of the Employment Act specifically provided that an employee was liable for summary dismissal only if during working hours he became intoxicated that renders him unwilling or incapable to perform his work properly. Possession of alcohol alone was not a justifiable ground for dismissal. If at all it was against workplace policy, stern warning could have been sufficient and proportional in the circumstances and not a summary dismissal. 13.Regarding procedure adopted in dismissing the appellant, it was erroneous for the court aquo to hold that the exigency of the situation, which in any event as already found, was not sufficiently proved before the trial court, exonerated the respondent from complying with the procedural requirements under section 41 read together with section 43 of the Employment Act. These provisions as was held in the case of Chege v. Unilever Kenya Ltd [2024] eKLR are not mere suggestions but are mandatory. Simply because an employee is found red handed committing an offence contrary to workplace procedure and policy, does not absolve an employer from complying even minimally, with the mandatory requirements of section 41. It was further erroneous for the trial court to state that the appellant never requested for a hearing or representation by a union or colleague. The law is that it is not the duty of the employee to request. All the employer needs to do is to notify the employee of the right to be represented by a union official or a colleague of his choice and leave it to the employee to elect to be represented or proceed alone. 14.Regarding the remedies sought and considering the respondent never tendered any evidence to dispute the same, they will be awarded as prayed except for the prayer for 12 months’ salary as compensation for unfair termination which will be awarded at three months’ salary based on the fact that the appellant placed himself in a situation that triggered the disciplinary action against him. The nature of his work as a machine operator required sobriety and although not proved by the appellant but by placing himself in a situation of suspicion, he jeopardised his relationship with the respondent and save for procedural lapses in adducing evidence, this court could have reached a different finding. 15.In conclusion the court in disposing of this appeal, finds and holds as follows:i.The appeal is allowed and the judgment of the trial court dismissing the suit in the lower court is set aside and replaced with a judgment allowing the claim as set out hereafter.ii.The appellant was unfairly terminated from employment and is hereby awarded Kshs. 235,002/- being three months’ salary as compensation for unfair termination of service.iii.Two months’ salary in lieu of notice of termination… Kshs. 156,668/-iv.Service pay at Kshs. 759,237/-v.Total award is therefore Kshs. 1,150,907/-vi.Costs of the appeal.vii.Item (iv) shall be subject to taxes and statutory deductions but shall attract interest at court rates from the date of this judgment until payment in full. 16.It is so ordered. DATED AT NAIROBI THIS 12TH DAY OF JUNE, 2026DELIVERED VIRTUALLY THIS 12TH DAY OF JUNE, 2026ABUODHA NELSON JORUMPRESIDING JUDGE-APPEALS DIVISION