https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1596

Wafula v Board of Management Moi Girls’ High School - Eldoret (Appeal E010 of 2024) [2026] KEELRC 1596 (KLR) (8 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1596 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Eldoret Appeal E010 of 2024 MA Onyango, J June 8, 2026 Between Jotham Wafula Appellant and The Board of Management Moi Girls’ High School - Eldoret Respondent (Being an appeal from the judgment of the Hon. B.K.Kiptoo, Principal Magistrate delivered on 23rd February 2024 in Eldoret CMELRC No. 185 of 2021) Judgment 1.The Appellant herein was the Claimant in Eldoret CMELRC No. 185 of 2021, wherein he instituted proceedings against the Respondent by way of a Statement of Claim dated 29th October 2021. In the said claim, he sought compensation for what he alleged to be the unfair termination of his employment by the Respondent. 2.Upon hearing the parties, the trial court delivered its judgment on 23rd February 2024 dismissing the Appellant’s suit with costs on the basis that the Appellant failed to demonstrate that the termination of his employment was unfair and unlawful. 3.Dissatisfied with the said judgement, the Appellant instituted the instant appeal vide his Memorandum of Appeal dated 13th March 2024 on the following grounds of appeal:i.That the learned magistrate erred in law and fact in dismissing, the Appellant’s claim on allegations of conspiracy to steal which offence was neither substantiated nor proved; even then, what was before the learned magistrate was not a criminal case but a civil one in its nature.ii.That the learned magistrate erred in law and fact by ignoring the evidence by the Appellant that during the disciplinary proceedings he was neither informed nor allowed to be represented by an advocate or to call witnesses hence a violation of the Appellant’s right to a fair hearing.iii.That the learned magistrate erred in law and fact in relying on the disciplinary Policy in the HR manual which was never produced in court to prove that the termination was procedurally sound.iv.That the trial magistrate erred in law and fact in dismissing the Appellant's claim despite finding the procedure to terminate the appellant was not followed.v.That the trial magistrate erred law and fact in failing, to find that failure to give the Appellant a chance to ask questions during the hearing was a violation of the Appellant’s right to a fair hearing.vi.That the trial magistrate erred in law and in fact in failing to find that the whole hearing process violated the rules of Natural Justice.vii.That the trial magistrate erred in law and in fact in finding, that the Appellant had not proved his case.viii.That the Learned Trial Magistrate applied the wrong and inaccurate principles and/or considered erroneous, irrelevant and/or extraneous factors in determining the issue of unlawful termination of employment.ix.That the Learned Trial Magistrate grossly misdirected himself in treating the evidence and submissions before him superficially and consequently coming to a wrong conclusion on the same. 4.Consequently, the Appellant prays for orders that:-i.The appeal be allowedii.The Judgment of the Honourable B.K. Kiptoo delivered on 23rd February, 2024 in the Eldoret Magistrate Court, ELRC No. E185 of 2021, be set aside in its entirety and this Honourable Court makes an order allowing the claim as pleaded in the trial court.iii.The costs of this Appeal be awarded to the Appellants. Analysis 5.This being a first appeal, this Court has the duty to analyze and re-examine the evidence adduced in the lower Court and reach its own conclusion bearing in mind that it neither saw nor heard the witnesses testify and make due allowance for that. 6.In Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, 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.” 7.Vide his Statement of Claim dated 29th October 2021, the Claimant (now the Appellant) averred that he was employed by the Respondent in the year 1997 as a lab assistant and worked in that capacity until 19th May 2021 when he alleges to have been unlawfully, unprocedurally and unfairly terminated from employment. He avers that at the time he left employment, he was earning a monthly salary of Kshs 15,380. 8.The Claimant contended that he served the Respondent diligently and without any lawful warning in his employment records until 19th May 2021 when his employment was unfairly terminated on allegations that he was an accomplice to theft of a television set from the School’s Mississippi Dining Hall which was removed from the compound through a section of the perimeter fence that had collapsed on the Dola Factory side of the school. 9.It was the Appellant’s case that the Respondent’s decision to terminate his employment was actuated by ill will and amounted to unfair termination on the basis that: -i.The Respondent terminated the Claimant’s employment without following the laid down procedure in the Employment Actii.The Respondent did not give the Claimant a termination letter notice as provided under section 35 of the Employment Actiii.The Respondent dismissed the Claimant without proving that the reason for the termination was valid.iv.The Respondent failed to pay leave allowances to the Claimant.v.The Respondent failed to pay the Claimant his 12 months Wages for loss of employment as provided for in the law.vi.The Respondent did not act in accordance with justice and equity in terminating his employment Contrary to the law.vii.The reason for termination was without basis, was unsubstantiated hence not a valid reason for termination 10.The Appellant further maintained that the Respondent terminated his employment without adhering to the procedure prescribed under the Employment Act and without affording him a valid and fair reason for the termination. 11.He contended that he was not paid his terminal dues which he particularized as hereunder:i.Two months’ salary in lieu of notice … Kshs. 30,760ii.12 months compensation forunfair termination ………………………. Kshs. 184,560iii.Service pay ………………….……………. Kshs. 353,740iv.Unpaid leave ……………………………… Kshs. 160,000v.Underpayment dues April2006 - 2008 ……………………..………. Kshs. 2,013,645Total………………………………………… Kshs. 2,576,605 12.The Appellant therefore sought the following reliefs:i.A declaration that the Claimant’s termination from employment was unlawful, unprocedural and unfairii.A declaration that during the Claimant’s employment with the Respondent, he was not duly remuneratediii.The sum of Kshs 2,576,605 as set out aboveiv.Costs of this suit and interests as court rates from time of filing suit until payment in full. 13.In response, the Respondent, through the Office of the Attorney General, filed a Response to the Memorandum of Claim dated 8th April 2022, denying the Appellant’s allegations that his employment had been unlawfully or unfairly terminated. The Respondent averred that the Appellant was lawfully summarily dismissed after he was allegedly caught red-handed while returning a television set which he had stolen from the Mississippi Dining Hall. The Respondent further maintained that the Appellant was accorded a fair disciplinary hearing and was duly informed of the reasons leading to his dismissal. 14.The Respondent therefore contended that, having been summarily dismissed for gross misconduct, the Appellant was not entitled to the terminal dues claimed. 15.Consequently, the Respondent urged the trial court to dismiss the Claim with costs. The Evidence adduced 16.At the hearing, the Claimant testified as CW1 and adopted his witness statement dated 29th October 2021 as part of his evidence in chief. He also produced the documents filed in support of his claim as exhibits before the Court. 17.The Claimant further testified that he was summoned to attend a disciplinary hearing and was informed that he could attend the hearing with a witness, but not with an advocate or a union representative. He stated that although he was a member of KUDHEIHA, the Union was not involved in the disciplinary process. He further testified that he remained on suspension from June 2020 until the date of his dismissal and that he was never charged with any offence. 18.Upon cross-examination, the Claimant testified that he informed the Union of the disciplinary proceedings. He further stated that no deductions were made from his salary towards Union dues. He confirmed that he appeared before the disciplinary committee and did not have a witness. 19.The record shows that on 29th November 2023, the trial court directed that the testimonies of RW1 and RW2 in CMELRC No. 186 of 2021, now Appeal No. E009 of 2024, would apply to the present case and form part of the evidentiary record herein. 20.The Respondent called two witnesses in furtherance of its case. Peter Kimeli Rotich, testified as RW1 and introduced himself as a security guard employed by the Respondent. He adopted his witness statement dated 22nd June 2022 as his evidence in chief. RW1 testified that as is the norm in the Respondent’s institution, any person intending to remove property from the school premises was required to obtain a gate pass. He further stated that the Claimant used an unofficial route when leaving the school premises. 21.During cross-examination, RW1 testified that he saw the Claimant carrying luggage. He further stated that he did not report the matter to the police. 22.Nancy Wanjiru Kariuki, testified as RW2 and introduced herself as a member of the Respondent's Board. She adopted her witness statement dated 5th December 2022 as her evidence in chief. 23.RW2 testified that the Claimant was summoned to appear before a disciplinary committee and was issued with a notice to show cause before being invited to the disciplinary hearing. She stated that the disciplinary committee made its findings, which were subsequently presented to the full Board for ratification. RW2 further testified that the Respondent had an HR Manual and had conducted sensitization sessions for members of staff. 24.According to RW2's testimony, the Appellant had orchestrated the theft of the television set and delivered it to one Francis Muya, the Claimant in CMELRC No. 186 of 2021, behind the school premises. She stated that the Appellant was present when the television set was returned. According to RW2, the Appellant was found culpable because he had been seen at Mississippi Dining Hall where the television set had allegedly been deposited after the theft. She further testified that security personnel had indicated that the Appellant was seen entering the compound carrying a sack and proceeding towards Mississippi Dining Hall. 25.RW2 further testified that the Claimant was a contributor to NSSF, that employees were required to apply for leave and that any unutilized leave days were forfeited. She also testified that employees continued to receive their salaries during school holidays. 26.On cross-examination, RW2 stated that the disciplinary process was governed by the HR Manual. She testified that the Claimant was informed of his right to be accompanied by an advocate and was allowed to ask questions during the proceedings. RW2 testified that there was no police report regarding the alleged theft. She also testified that it was not unlawful for an employee to have a bicycle within the school compound. She stated that there was no attendance register confirming the Claimant's presence in school. She further conceded that she did not have any leave records relating to the Claimant. 27.Upon re-examination, RW2 testified that the Appellant conspired with another person by taking a bicycle to Mr. Francis Muya which bicycle was allegedly used to transport the television set. She told the trial court that although the Claimant had been informed of his right to be accompanied by an advocate, the advocate was not permitted to participate because the matter was considered an internal disciplinary process. RW2 maintained that the Claimant had been afforded an opportunity to ask questions, although the questions and answers were not recorded verbatim in the minutes. She further testified that there was a report concerning the theft incident and maintained that the Claimant and the other employees were on duty at the material time, as evidenced by the fact that they had completed their assigned tasks and had interacted with the security guards. 28.After hearing the parties, the trial court delivered its judgment on 23rd February 2024 dismissing the Claimant’s suit. 29.It is the said judgment that is now the subject of this appeal. The Appeal 30.The appeal was disposed of by way of written submissions pursuant to the directions of this court issued on 4th February 2026.Both parties filed their submissions. The Appellant’s submissions are dated 9th February 2026 while the Respondent’s submissions are dated 24th April 2026. Appellant’s submissions 31.The Appellant submitted on the following issues:i.Whether the trial court erred by ignoring mandatory procedural requirements under section 41 of the Employment Actii.Whether the trial court erred in finding substantive justification for dismissal in the absence of proven evidence of misconductiii.Whether the trial court erred in its framing of the issues leading to a miscarriage of justice. 32.On the first issue, the Appellant submitted that the trial court in its judgment erred in concluding that the disciplinary process was substantially compliant despite acknowledging procedural shortcomings. It is the Appellant’s submission that the trial court fell into error when it held that the procedure might not have been followed to the letter but was nevertheless sufficient. According to the Appellant, this amounted to a fatal error of law, particularly in light of the Respondent's own evidence, through its witness RW2, who admitted during re-examination that the Appellant was not permitted legal representation during the disciplinary hearing on the basis that the matter was considered an internal affair. 33.The Appellant thus submitted that the failure to inform him of his right to representation constituted a material violation of his right to a fair hearing. In support of this position, reliance was placed in the case of Pius Machafu Isindu v Lavington Security Guards Ltd [2017] eKLR and Postal Corporation of Kenya v Andrew K. Tanui [2019] eKLR. 34.It was therefore submitted that the provisions of Section 41 are couched in mandatory terms and are not amenable to waiver or partial compliance and that the trial court could not excuse non-compliance on the basis that substantial procedural steps had been taken. 35.In addition, the Appellant submitted that the Respondent’s position that his advocate could not accompany or represent him during the disciplinary hearing was in violation of Article 50 of the Constitution. He argued that, given that the allegations levelled against him were criminal in nature, the denial of legal representation amounted to a serious infringement of his constitutional right to a fair hearing. 36.The Appellant further submitted that he was denied the opportunity to cross-examine his accusers during the disciplinary proceedings and also, that none of the individuals who allegedly testified before the disciplinary committee testified before the trial court or recorded witness statements in support of the Respondent’s case. 37.Consequently, the Appellant submitted that, having acknowledged that due procedure was not followed, the trial court ought to have found that the disciplinary process was unlawful and incapable of sustaining the dismissal. 38.On the second issue, the Appellant submitted that the trial court erred in finding that there was substantive justification for his dismissal. According to the Appellant, the trial court's finding that he had conspired with one Francis Muya to steal a television set was not supported by the evidence on record and was therefore erroneous. 39.The Appellant further contended that the allegations against him were criminal in nature and ought, at a minimum, to have been subjected to proper criminal investigation. He submitted that a fair process would have required a report of the incident to the police; recording of statements from eyewitnesses by the police and institution of criminal proceedings upon completion of investigations, if warranted. The Appellant maintained that the Respondent’s witnesses confirmed that no report was made to the police. 40.According to the Appellant, the Respondent improperly assumed the roles of investigator, complainant, witness and adjudicator in the same process, thereby predetermining the outcome. 41.The Appellant further argued that the trial court relied on evidence that had not been formally produced and particularly, that the Respondent referred to a Human Resource Manual that was never produced in evidence despite allegedly guiding the disciplinary process. 42.Citing sections 43 and 45 of the Employment Act, the Appellant submitted that the Respondent relied on suspicion and hearsay rather than cogent evidence. In support of this position, the Appellant cited the decisions in CMC Aviation Limited v Mohammed Noor and Stanbic Bank Kenya Limited v Danson Mwashako Mwakuwona [2015] eKLR for the proposition that both substantive and procedural fairness must be established and that misconduct must be proved on a balance of probabilities. 43.The Appellant therefore submitted that the trial magistrate improperly shifted the burden of proof onto the Appellant. He argued that once the dismissal was challenged, the Respondent bore the legal burden of proving the alleged misconduct. 44.On the third issue, the Appellant submitted that the trial court improperly framed issues that did not arise from the pleadings. Relying on Order 15 of the Civil Procedure Rules, the Appellant argued that issues for determination must arise from material propositions of fact or law affirmed by one party and denied by the other. 45.The Appellant contended that the trial court in its judgment introduced the issue of conspiracy to steal despite the same not having been pleaded by the Respondent. Reliance was placed on the decision in Kahora v Ng'ang'a [2025]eKLR 46.The Appellant further submitted that the trial court improperly focused on what it termed minor procedural defects while overlooking the substantive merits of the dispute, contrary to Article 159(2)(d) of the Constitution. 47.The Appellant submitted that although the trial court described the allegations as sufficiently serious to justify dismissal, it failed to appreciate that the gravity of an allegation does not relieve an employer of its statutory burden of proving the allegation through a lawful and fair process. 48.The Appellant also submitted that the trial court failed to consider that the Appellant had served the Respondent as a permanent and pensionable employee since 2004 and had maintained a clean disciplinary record for approximately fifteen years which ought to have weighed in his favour. 49.In conclusion, the Appellant submitted that the trial court misdirected itself both on the law and the evidence. He submitted that the finding that there was substantive justification for dismissal was inconsistent with the evidence demonstrating that no theft had been reported to the police and that no witness had seen the Appellant in possession of the allegedly stolen television. 50.The Court was accordingly urged to allow the appeal, set aside the judgment of the trial court in its entirety and grant the reliefs sought in the original claim together with the costs of the appeal. The Respondent’s submissions 51.In its submissions, the Respondent identified the following issues for determination.i.Whether the trial court erred in law and fact by finding that there was a procedural lapse but nonetheless upholding the Appellant’s termination as lawfulii.Whether the trial court erred in finding that the Appellant’s termination was substantively justified.iii.Whether the Appellant is entitled to the reliefs sought 52.On the first issue, the Respondent submitted that the Appellant was subjected to a disciplinary hearing founded upon valid reasons. The Respondent averred that it received a report concerning the theft of a television set within the school and consequently undertook investigations into the matter. According to the Respondent, the preliminary investigations pointed to the Appellant having colluded with one Francis Muya in the theft of the television set. 53.The Respondent submitted that the disciplinary process was initiated by a letter of suspension dated 4th June 2020, which set out the allegations levelled against the Appellant and the reasons for his suspension. The Respondent further submitted that, subsequently, the Appellant was issued with a notice to show cause dated 22nd October 2020 requiring him to respond to the allegations and to explain why disciplinary action should not be taken against him. According to the Respondent, the Appellant duly responded to the notice through a letter dated 26th October 2020. 54.The Respondent further submitted that, by a letter dated 30th October 2020, the Appellant was invited to appear before the disciplinary committee for a hearing scheduled for 4th November 2020. According to the Respondent, the invitation expressly informed the Appellant of his right to attend the hearing in the company of a witness of his choice. 55.The Respondent submitted that the Appellant testified during trial that he attended the disciplinary hearing, responded to the allegations levelled against him and asked questions of other employees which evidence according to the Respondent was corroborated by both RW1 and RW2. It was therefore submitted that the steps undertaken by the Respondent demonstrate compliance with the requirements of Section 41 of the Employment Act. 56.In response to the Appellant’s averment that he was denied legal representation during the disciplinary hearing, the Respondent submitted that this issue was never pleaded before the trial court. According to the Respondent, if the Appellant intended to rely on the assertion that he was not advised of his right to legal representation, he ought to have specifically pleaded the same in his Statement of Claim. 57.The Respondent submitted that the right to representation in quasi-judicial proceedings is not absolute and that the mere absence of legal representation does not invalidate such proceedings. It was further submitted that the Appellant did not adduce any evidence during the trial to demonstrate that he requested legal representation and that such request was declined by the Respondent. In support of this position, the Respondent relied on Khamasi v Paramount Bank Limited (Appeal No. E033 of 2021) [2023] KEELRC 910 (KLR). 58.The Respondent accordingly urged the Court to be guided by the foregoing decision and to find that the absence of counsel during the disciplinary hearing did not invalidate the disciplinary process or render the termination unfair. 59.On the issue of whether the Respondent had sufficient reason to dismiss the Appellant, the Respondent submitted that the evidence of misconduct against the Appellant was overwhelming and remained uncontroverted both before the disciplinary committee and during the trial. 60.The Respondent submitted that preliminary investigations were conducted and revealed that the Claimant had been summoned to the Bursar's office to explain his whereabouts at around lunchtime on 2nd May 2020. In response, the Claimant reportedly stated that he had taken his bicycle to one Francis Muya and that he was unaware that Muya intended to use it to transport a stolen television set. The Claimant further indicated that he had handed over the bicycle to Muya at the Dola area and that Muya later passed through a panya route carrying a sack. The Respondent further submitted that, during the disciplinary hearing, RW1 testified that at about 5.30 a.m. on the material day, he saw Francis Muya within the school compound carrying a heavy sack towards the kitchen. 61.The Respondent further submitted that, in his undated statement, Francis Muya indicated that he had carried a tabletop and that the Appellant had instructed him to take the bicycle through the Dola route. According to the Respondent, the Appellant admitted during the disciplinary hearing that he had taken the bicycle to Muya, who was waiting at the panya route side of Dola. It was submitted that it was not a mere coincidence that the circumstances surrounding the disappearance of the television coincided with the Appellant having lent his bicycle to Muya, who subsequently returned it through the back route. 62.The Respondent contended that the foregoing circumstances led the Board to reasonably conclude that the Appellant had colluded with Francis Muya in the theft of the television set. Relying on the decision in Galgalo Jarso Jillo v Agricultural Finance Corporation, the Respondent submitted that the evidence on record justified the termination of the Appellant's employment on the ground that he had conspired with Francis Muya to steal the television. 63.Consequently, it was argued that the trial court correctly found that the Appellant had failed to establish that his termination was unlawful. 64.Lastly on the issue whether the Appellant is entitled to the reliefs sought, the Respondent submitted that, having demonstrated that the Appellant was neither unfairly nor unlawfully terminated from employment, the remedies provided under Section 49 of the Employment Act were unavailable to him. 65.On the prayer for a declaration that his termination from employment was unlawful and unfair, the Respondent urged the Court to find that it fully complied with both the substantive and procedural requirements of the Employment Act and that as such, the Appellant was not entitled to a declaration that his termination was unlawful, unfair or procedurally defective. 66.With regard to the prayer for two months’ salary in lieu of notice, the Respondent submitted that since the Appellant was not unfairly or unlawfully dismissed, he was not entitled to payment in lieu of notice. The Court was therefore urged to disallow that claim. 67.On service pay, the Respondent submitted the Appellant was a contributor to the National Social Security Fund (NSSF) which contributions were regularly remitted by the Respondent on behalf of the Appellant. The Respondent therefore argued that pursuant to Section 35 of the Employment Act, an employee who is a member of NSSF is not entitled to service pay. The Court was accordingly urged to disallow the claim for service pay. 68.Regarding the claim for compensation for unfair termination, the Respondent submitted that the Appellant's dismissal had not been shown to be unfair and that he was therefore not entitled to any compensatory award under Section 49 of the Employment Act. 69.In respect to the prayer for unpaid leave, the Respondent submitted that the Appellant failed to adduce any evidence demonstrating that he had accrued leave days that remained outstanding at the time of termination. The Respondent submitted that the Appellant testified that it was only during the year 2020 that he did not proceed on leave. The Respondent invited the Court to take judicial notice of the fact that 2020 was a year significantly affected by the COVID-19 pandemic and that schools remained closed for a substantial part of that period. According to the Respondent, the Appellant acknowledged during his testimony that schools remained closed for most of the year 2020.The Respondent thus submitted that the claim for unpaid leave was not proved and ought to be dismissed. 70.As regards the claim for underpayment, the Respondent submitted that the Appellant failed to adduce any evidence in support of his allegations. It was argued that apart from setting out particulars of underpayment in his Statement of Claim, the Appellant did not address the issue in his oral testimony. 71.The Respondent further submitted that although the Appellant adopted his witness statement as part of his evidence in chief, the statement did not contain any particulars or evidence supporting the claim for underpayment. The Respondent therefore submitted that the claim for underpayment remained wholly unsubstantiated. 72.It was therefore the Respondent's position that there was no factual or legal basis for the claim of underpayment as the pay slips produced by the Appellant demonstrated that his remuneration remained within the legal parameters and above the prescribed statutory minimum wages throughout the relevant period. 73.In the end, the court was urged to uphold the trial court’s judgment dismissing the Appellant’s claim. Determination 74.I have considered the Appellant’s Record of Appeal and the submissions by both parties. The issues that fall for this court’s determination are: -i.Whether the Respondent had a valid and fair reason to terminate the Appellant's employment.ii.Whether the Respondent complied with the procedural requirements set out under the Employment Act.iii.Whether the Appellant is entitled to the reliefs sought. Whether the Respondent had a valid and fair reason to terminate the Appellant's employment. 75.The Appellant contends that his employment was unfairly and unlawfully terminated on the basis of allegations that were neither substantiated nor supported by evidence. It is his case that no evidence was adduced linking him to the theft of the television set and that the Respondent's decision was founded on mere suspicion. 76.The Respondent, on the other hand, maintains that the Appellant's dismissal was justified. According to the Respondent, investigations conducted following the disappearance of the television set revealed that the Appellant had lent his bicycle to one Francis Muya who was allegedly involved in the theft. The Respondent contends that the circumstances surrounding the disappearance of the television and the use of the Appellant's bicycle justified the conclusion that the Appellant had colluded with Francis Muya in the commission of the theft. 77.Sections 43 and 45 of the Employment Act require an employer to establish the reason for termination and to demonstrate that such reason was valid and fair. The employer is not required to prove misconduct beyond reasonable doubt as would be required in criminal proceedings. It must, however, demonstrate that it genuinely believed on reasonable grounds that the employee had committed the misconduct complained of. 78.The Court has carefully re-evaluated the evidence on record. It is not disputed that the Appellant admitted having borrowed a bicycle from Francis Muya to on the material day. The Respondent relies heavily on the that fact together with the evidence that Francis Muya was allegedly seen carrying a sack and that the Appellant subsequently returned the bicycle through a route considered suspicious. 79.Other than the fact that the Appellant borrowed Francis Muya’s bicycle, no evidence was adduced demonstrating that the Appellant participated in the theft of the television set, assisted in its transportation or had prior knowledge of Francis Muya’s intentions. No witness testified to having seen the Appellant remove, carry or possess the television set. In addition, there was no evidence that the television set was returned to the dining hall by the Appellant. 80.The Respondent urged the Court to infer collusion from the circumstances surrounding the lending of the bicycle. However, the fact that the Appellant borrowed Francis Muya’s bicycle which he returned to Muya and which Muya is accused of having used in the commission of the alleged theft does not, without more, establish that the Appellant was involved in or aware of the unlawful enterprise. 81.While the circumstances may have aroused suspicion, suspicion alone, however strong, cannot constitute a valid and fair reason for termination within the meaning of sections 43 and 45 of the Employment Act. 82.Having carefully considered the totality of the evidence, this Court is not satisfied that the Respondent demonstrated reasonable and sufficient grounds upon which it could genuinely conclude that the Appellant had participated in the theft of the television set. The evidence relied upon by the Respondent established no more than the fact that the Appellant lent his bicycle to Francis Muya. In the Court's view, that evidence fell short of establishing a valid and fair reason for dismissal. 83.Accordingly, this Court finds that the Respondent failed to discharge the burden imposed upon it by sections 43 and 45 of the Employment Act. Consequently, the termination of the Appellant's employment was substantively unfair. Whether the Respondent complied with the procedural requirements set out under the Employment Act. 84.Having found that the Respondent failed to establish a valid and fair reason for terminating the Appellant’s employment, the next issue for determination is whether the procedure leading to the Appellant’s dismissal complied with the requirements of the Employment Act. 85.The Appellant contends that the disciplinary process was procedurally flawed. He submitted that he was denied an opportunity to effectively challenge the allegations levelled against him, was not permitted legal representation despite the criminal nature of the accusations, and was not afforded an opportunity to cross-examine the witnesses whose evidence was relied upon by the disciplinary committee. 86.The Respondent, on the other hand, maintains that it complied with the requirements of Section 41 of the Employment Act. It submits that the Appellant was issued with a suspension letter, served with a notice to show cause, invited to attend a disciplinary hearing and accorded an opportunity to respond to the allegations levelled against him before the decision to dismiss him was made. 87.Section 41 of the Employment Act provides the minimum standards of a fair procedure that an employer ought to comply with. It provides: -“(1)Subject to Section 42 (1), an employer shall before terminating the employment of an employee, on the grounds of misconduct; poor to performance or physical in capacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.”“(2)Notwithstanding any other provision of this part, an employer shall, before terminating the employment of an employer or summarily dismissing an employee under Section 44 (3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, chosen by the employee within subsection (1) make.” 88.The Court of Appeal in Postal Corporation of Kenya v Andrew K. Tanui [2019] KECA 489 (KLR) (19 July 2019) (Judgment) underscored the mandatory nature of the procedural safeguards set out under Section 41 of the Employment Act and held as follows: -“43.Section 42 (1) referred to in Sub-section (1) relates to employees on probation. Four elements must thus be discernible for the procedure to pass muster: -i.an explanation of the grounds of termination in a language understood by the employee;ii.the reason for which the employer is considering termination;iii.entitlement of an employee to the presence of another employee of his choice when the explanation of grounds of termination is made;iv.hearing and considering any representations made by the employee and the person chosen by the employee.44.In this case, the letter inviting the respondent to appear before the Board was only two lines containing the date and venue. It said nothing about the reasons for such invitation. It said nothing about the respondent appearing with another employee of his choice. The retort that an employer has no obligation to ask the employee to be accompanied does not avail the appellant because the law requires that such other person be present to hear the grounds of termination and if so inclined, make representations thereon. A hearing not so conducted is irregular. At the Board meeting, there is no evidence that an explanation of the grounds of termination was made to the respondent, and if so, in what language. The Board had in its possession the very document that formed the basis of the charges framed against the respondent but kept it away from him. Even in criminal trials, which are more serious in nature, an accused is entitled to the statements that support the charges laid against him. That is the essence of fairness even outside a judicial setting. The respondent faced serious indictments which could torpedo his entire career and destroy his future. In our view, this was a matter in which oral hearing was necessary, but none was held. Instead, all the respondent had was a technical appearance of less than five minutes with the Board, which evidence was not seriously challenged. For all those reasons, we agree with the trial court that the procedure adopted by the appellant was short of a fair one. We so find.” 89.In the instant case, the record shows that the Appellant was initially suspended by a letter dated 4th June 2020. Thereafter, he was issued with a notice to show cause dated 22nd October 2020 to which he responded by a letter dated 26th October 2020. He was subsequently invited to appear before the disciplinary committee on 4th November 2020. 90.While the foregoing demonstrates that the Appellant was notified of the allegations facing him and was invited to attend a disciplinary hearing, compliance with Section 41 requires more than the issuance of notices and invitations. The Respondent bears the burden of demonstrating that the hearing itself complied with the procedural safeguards prescribed by the Act. 91.A perusal of the disciplinary proceedings at page 85 and 86 of the Record of Appeal reveals that several witnesses allegedly appeared before the disciplinary committee and gave evidence implicating the Appellant. However, beyond a narration of the allegations and summaries of the statements attributed to those witnesses, the minutes do not disclose whether the witnesses testified in the presence of the Appellant, whether he was afforded an opportunity to challenge or rebut their evidence, or whether he was invited to respond to the accusations made against him. 92.The Appellant in his submissions maintained that he was denied an opportunity to cross-examine the witnesses whose evidence formed the basis of the disciplinary committee's findings. Although RW2 testified that the Appellant was allowed to ask questions and that such questions were not recorded verbatim, no evidence was produced to demonstrate that the Appellant was in fact afforded a meaningful opportunity to confront the evidence presented against him. 93.Further, evidence on record shows that the Appellant was a member of KUDHEIHA. There is no indication on the record that he was informed of his right to have a union representative present during the hearing. The Respondent, upon whom the burden rested, did not place before the Court evidence demonstrating compliance with this aspect of Section 41. 94.In the circumstances, this Court is not satisfied that the Respondent fully complied with the mandatory procedural requirements prescribed under Section 41 of the Employment Act. While the Appellant was notified of the allegations against him and invited to attend a disciplinary hearing, the Respondent failed to demonstrate that he was accorded the procedural safeguards contemplated by the statute. 95.Accordingly, the Court finds that the disciplinary process culminating in the Appellant’s dismissal was procedurally unfair and in contravention of Section 41 of the Employment Act. Consequently, the termination of the Appellant’s employment was procedurally unfair Whether the Appellant is entitled to the reliefs sought 96.Having found that the Appellant was unfairly and unlawfully terminated from employment, he is entitled to compensation and payment of his terminal dues. In his Statement of Claim, the Appellant prayed for several remedies which I will address under separate heads.i.A declaration that the Claimant’s termination from employment was unlawful, unprocedural and unfairHaving found that the termination of the Appellant’s employment was unfair and unlawful, a declaration is hereby issued that the termination of the Appellant's employment by the Respondent was unfair and unlawful.ii.A declaration that during the Claimant’s employment with the Respondent, he was not duly remuneratedThis head of claim is considered below under the claim of underpayment.iii.Terminal dues and damages as per the calculations under paragraph 11.a.Two months salary in lieu of noticeThe record shows that the Appellant's employment was terminated through summary dismissal. Having found that the dismissal was unfair, the Appellant became entitled to notice pay. The Respondent’s Human Resources Policy Manual at Document No. 16 of the Respondent’s List and Bundle of Documents provides that an employee who has completed 3 months service is entitled to 3 months’ notice or pay in lieu at paragraph 5.9.4.1. Consequently, the Court awards the Appellant three months salary in lieu of notice calculated on the basis of his last salary of Kshs. 46,140.b.Compensation for unfair terminationHaving found that the termination of the employment of the Appellant was unlawful and unfair, this court is clothed with jurisdiction to award compensation. Section 49 of the Employment Act provides for remedies for wrongful dismissal and unfair termination. The Appellant worked for the Respondent for about 24 years. From the record he had no previous instances of misconduct or disciplinary issues. In the present case the only reason for terminating his employment was that he borrowed a bicycle from a colleague suspected of stealing the school TV from the dinning hall. Taking into account the length of the Appellant’s service and relevant factors under section 49(4) of the Act and applying the same to the facts of this case, I award the Appellant maximum compensation equivalent to 12 months’ salary amounting to Kshs.184,560.c.Service paySection 35(6) of the Employment Act excludes employees who are members of a registered pension or provident fund or who are otherwise covered under the NSSF from claiming service pay. The evidence on record demonstrates that the Appellant was a contributor to the National Social Security Fund (NSSF). He is therefore not entitled to payment of service pay as per section 35(5) of the act.The court however notes that under the Respondent’s Human Resources Policy Manual at paragraph 5.2 service gratuity is provided for at the rate of 6% of basic salary for every month worked. The Respondent is directed to tabulate and pay the same to the Appellant as part of his terminal dues from the date he started working in the Respondent.d.Unpaid leave duesThe Appellant testified that the only year in which he did not proceed on leave was the year 2020. No leave records were produced by the Respondent to prove that the Claimant took leave. Under section 10 and 74 of the Employment Act it is the employer’s obligation to keep employment records including particulars of, “entitlement to annual leave, including public holidays, and holiday pay (the particulars given being sufficient to enable the employee’s entitlement, including any entitlement to accrued holiday pay on the termination of employment, to be precisely calculated)”. Where the employer fails to do so there will be a presumption in favour of the employee. I thus find that the Appellant is entitled to annual leave for 2020 and for 2021 up to the date of termination on 19th May, 2021, in the sum of Kshs. 20,506.70.e.Underpayment duesAlthough the Appellant particularized the alleged underpayments in his Statement of Claim, he did not tender any evidence demonstrating the applicable minimum wages, the salary paid to him during the relevant periods or the computations giving rise to the sums claimed. Consequently, the claim for underpayment was not proved and is dismissed. 107.In conclusion, the appeal succeeds. Accordingly, the Court makes the following orders:i.The appeal is hereby allowedii.The judgment of the trial court delivered on 23rd February 2024 in Eldoret CMELRC No. 185 of 2021 is hereby set aside.iii.A declaration is hereby issued that the termination of the Appellant's employment was unfair and unlawful.iv.The Appellant is awarded one (3) months salary in lieu of notice being Kshs. 46,140.v.The Appellant is awarded compensation for unfair termination184,560.vi.The Appellant is awarded unpaid leave for 2020 and 4 months of 2021 Kshs. 20,506.70vii.The Appellant is awarded service gratuity at 6% for every month worked.viii.The total award shall attract interest at court rates from the date of this judgment until payment in full.ix.The Appellant shall have the costs of the suit before the trial court and the costs of this appeal. 108.Orders accordingly DATED, DELIVERED AND SIGNEDON THIS 8TH DAY OF JUNE 2026.M. ONYANGOJUDGE