https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2390

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **APPEAL NO. E064 OF 2026** **KENNEY OTIENO APPELLANT** *VERSUS* **KENYATTA UNIVERSITY RESPONDENT** **[Being an appeal from the judgment and decree of Hon. Aziza Ajwang delivered on 22 February 2026 in Nairobi MCELRC No. E250 of 2022]** **JUDGMENT** The appeal arises from the judgment delivered on 22 February 2026 in Nairobi MCELRC No. E250 of 2022. The appeal is on 3 grounds: 1. The learned magistrate erred in fact and law in finding that there was substantive fairness leading to the dismissal of the appellant by the respondent. 2. The learned magistrate erred in fact and law in finding that there was procedural fairness leading to the dismissal of the appellant. 3. The learned magistrate erred in fact and law in dismissing the appellant’s claim. The appellant seeks that the judgment of the trial court be set aside and the claims assessed, with payment of compensation in the amount of Ksh. 284,424 and notice pay Ksh. 23,702 with costs. The background to the appeal is a claim filed by the appellant. His case was that on 27 June 2016, the respondent employed him as a security officer and stationed him at Gate A, the main gate of the University. However, on 2 August 2021 at 11.10 am, he allowed into the University a black Toyota Mark X vehicle registration No. KBN 761H ferrying former student, Joshua Ayika, who was dismissed from studying at the university and was not allowed into the university without authorisation of the Academic Registrar. Efforts to seek a hearing over the matter were fruitless. The claim was that there was no substantive or procedural justice. Due process was not observed, in contravention of articles 47 and 41 of the Constitution. The rights under section 35, 41, 43, 45 and 46 of the Employment Act were not protected. The appellant sought the following Orders: 1. One month's notice pay Ksh. 23,702. 2. 12 months' compensation Ksh. 284,424. 3. Certificate of service. 4. Costs and interest on the awards. In reply, the respondent admitted that the appellant was an employee from 27 June 2016 and that his employment was lawfully terminated on 2 August 2021. The notice terminating employment by summary dismissal stated the reasons for the same, for conduct that amounted to gross misconduct and negligence of duty. On 3 February 2020, while the appellant was serving at the respondent’s main gate A, at 11.30 am, he allowed into the university a black Toyota Mark X vehicle registration KBN 761H feryign a former student, Joshua Ayika registration No. L955/00000/2015. Joshua Ayika was suspended from studying at the respondent on 18 October 2019 and therefore was not allowed on the premises. There is criminal case pending in Makadara Chief Magistrate Court Criminal Case No. 3393 of 2019 – Republic v Joshua Otieno Ayika (Ayika) where a court order was issued barring him from accessing the respondent’s premises. A photo of Ayika was posted at every gate of the respondent’s premises and all security officers were informed not to allow him into the premises. This is because, prior to the criminal case, Ayika incited fellow students leading to student unrest ad riots which caused extensive damage to the respondent. He claimant willfully and negligently allowed Ayika into the premises having knowledge of the orders barring his access. Ayika proceeded to the respondent’s Central Administration Complex where he confronted several university employees including those who were working in the following offices: 1. Deputy Vice Chancellor, Academics, 2. Transcripts and certification, 3. Registrar, Academics. The response was also that Ayika had to be escorted off the premises by security officers. The appellant's actions amounted to a serious breach of security and negligence of duty. On 15 July 2021, the appellant was invited to a disciplinary hearing before the junior disciplinary board, and the reasons for the hearing were given. This was to allow the appellant to make his representations on his conduct and the incident on 3 February 2020. There was substantive and procedural fairness in addressing the appellant’s case. He was given a hearing on 21 July 2021 and in attendance was Dominic Ogari the shop steward as the union representative from KUDHEIHA. The appellant could not explain why he allowed a suspended student to access the respondent premises. His response that the student forced his way into the premises was not satisfactory since he left the student to enter and park his vehicle while on duty without seeking clearance or permission from the respondent. After the disciplinary hearing, the respondent decided to terminate the employment by dismissal for gross misconduct. The claim should be dismissed with costs. The learned magistrate heard the parties and, in judgment, held that there was both procedural and substantive justice in terminating employment, and hence dismissed the claim, a certificate of service be issued, and each party to bear its costs. On the appeal, the appellant submitted that he was alleged to have committed acts of gross misconduct without proof. He was the only one subjected to disciplinary hearing and dismissed. this was discriminatory since the security officers were involved in the incident. The process lacked fairness and justification. Under section 41 and 43 of the Employment Act (the Act), the termination of employment was not justified. The findings by the trial court that there was substantive and procedural justice were without proof. The appellant was not furnished with the documents relied upon during the disciplinary hearing. Crucial details were not within his knowledge and hence under section 41 of the Act, he could not adequately defend himself. In **Naomi Wangui Kung’u v Board of Governors S.C.L.P Samaj Schools [2022] eKLR**, the court held that sections 41, 43, and 45 of the Act are mandatory. The employee must be issued with a notice to show cause before the disciplinary hearing. In **Nicholas Muasya Kyula v Farmchem Ltd [2012] eKLR**, the court held that a notice to show cause and invitation to a disciplinary hearing are different. Each must issue before the other. In this case, there was no notice to show cause before the disciplinary hearing. The appellant did not know the allegations he faced before the hearing. In **Regent Management Limited v Wilberforce Ojiambo Oundo [2018] eKLR,** the court emphasised the importance of providing copies of the evidence to the employee before the disciplinary hearing. In this case, the appellant had no way of knowing what to respond to at the disciplinary hearing without knowledge of the allegation he faced. This led to unfair termination of employment. The appellant submitted that, under section 45 of the Act, the termination of employment was unfair and that the appellant is entitled to notice pay and compensation. The appeal should be allowed with costs. In reply, the respondent submitted that the appellant’s employment was lawfully terminated due to gross misconduct. On 3 February 2020, he allowed a former student who was suspended and charged in Makadara Criminal Case No. 3833 of 2019 – Republic v Joshua Ayika & others to enter the respondent’s premises using motor vehicle KBN 761H. there was an order barring the student from accessing the premises, and his photo had been circulated to all security gates including where the appellant was manning. Through a letter dated 4 February 2020, the appellant was suspended from duty to allow for investigations. The letter set out the allegation facing the appellant. He was invited before the disciplinary panel through letter dated 15 July 2021 and he attended on 21 July 2021 with a shop steward from his trade union, KUDHEIHA. The appellant could not explain his conduct leading to termination of employment upon the due process. On the appeal, the respondent submitted that the appellant has not attached a decree of the trial court to the Record of Appeal, which is mandatory. Section 65(1)(b) of the Civil Procedure Act and Order 42 rule 13(4)(f) of the Civil Procedure Rules require production of the decree. Without it, the Record of Appeal is incomplete. In **Mburu & 6 others v Kirubi Civil Appeal E246 of 2021**, the court held that the omission of a decree in the record of appeal makes the appeal incompetent. The respondent submitted that the termination of employment was lawful and fair. In **Walter Ogal Anuro v Teachers Service Commission,** the court held that for a termination of employment to pass, there must be procedural fairness and substantive fairness. This gives effect to section 41, 43 and 45 of the Act. thus, under section 44 of the Act, summary dismissal is allowed where the employee commits gross misconduct. In **Prof. Macha Isunde v Lavington Security [2017] eKLR**, the court held that before summary dismissal, the employer must meet the mandatory provisions of section 41, 43 and 45 of the Act. In this case, the appellant was served with a suspension notice giving reasons, a disciplinary hearing and a decision was taken to terminate his employment. He failed to give satisfactory responses to his conduct. There was a valid reason and due process that was subjected to a disciplinary hearing. The resulting termination of employment was for valid reasons hence lawful. The appeal is without merit and should be dismissed with costs. **Determination.** This being a first appeal, the court may review the records, read the findings, and reach a conclusion. Also take into account that the trial court had the chance to see and hear the witnesses and hence gave this provision. The respondent has raised a preliminary issue with regard to the failure by the appellant to file a decree in the Record of Appeal as required under Section 65(1) (b) of the Civil Procedure Act and Order 42 Rule 13(4)(f) of the Civil Procedure Rules. There was no response in this regard. Under Rule 15 of the Employment and Labour Relations Court (Procedure) Rules, the mandatory records that must form the Record of Appeal are addressed: ***15.(1) A memorandum of appeal shall be accompanied by a record of appeal comprising a certified copy of pleadings, the proceedings, any documentary evidence relied on, and the judgment, ruling, decision, order, decree or award appealed against.*** A Decree is a crucial record. It is mandatory. The hearing of the appeal was adjourned severally for one reason or the other including to allow the appellant file the Full Record of Appeal. The Decree was not attached. This renders a fatal blow to the appeal. The appeal without the core record particularly the Decree that outline the dispute and the outcome orders. Section 2 of the Civil Procedure Act defines a decree to include: ***"decree" means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final; it includes the striking out of a plaint and the determination of any question within section 34 or section 91, but does not include—*** ***(a)any adjudication from which an appeal lies as an appeal from an order; or*** ***(b)any order of dismissal for default:*** ***Provided that, for the purposes of appeal, "decree" includes judgment, and a judgment shall be appealable notwithstanding the fact that a formal decree in pursuance of such judgment may not have been drawn up or may not be capable of being drawn up;*** Thus, a decree is a necessary record on appeal. Without it, the Record of Appeal is incomplete. The appellant had the liberty to apply Rule 15(2) of the Court Rules and file a Supplementary Record of Appeal. this was not applied. In **Syala Consortium v Ochama & another [2026] KEELRC 143 (KLR)** the court held that an appeal without a full record is fatally defective. This position is reiterated in **Ready Consultancy Co. Ltd v Charo & another [2024] KEELRC 166 (KLR),** which held that filing an appeal without the full record invites a dismissal with costs. On the substantive issues raised in the appeal, the appellant’s employment was terminated for gross misconduct and negligence of duty. This sanction is permitted under sections 44(3) and 44 (4) of the Act due to a fundamental breach of the employment contract and gross misconduct. The employer is also allowed to add reasons that may justify summary dismissal, based on its policy and unique business. The safeguard for the employee is set out in section 41(2) of the Act. The employee facing possible termination of employment for breach of contract and gross misconduct must be issued notice, invited to attend a hearing, and allowed to have another employee present. In **Pamela Nelima Lutta v Mumias Sugar Co. Ltd [2017] eKLR**, the court held that the twin issues to be adhered to before termination of employment are fair procedure and substantive fairness. The appellant does not contest events that took place on 3 February 2020 at the Gate A of the respondent premises. He allowed a suspended student gain access to the premises while there was notice and information that the student was barred through a court order from accessing the premises. In response, the appellant asserts that he was not supplied with the necessary records during the hearing. The court has gone through the notice of suspension dated 4 February 2020. It has an outline of the allegations facing the appellant. The details include the fact that he allowed Vehicle Registration KBN 761H to ferry former student Joshua Ayika onto the university premises. The student had been barred after being charged in Makadara Criminal case No. 3833 of 2019, Republic v Ayika Oteno & others. The photo of the former student was posted at the entrances. Through notice dated 15 July 2021, the appellant was invited to a disciplinary hearing on 21 July 2021. The allegations made against him were again reiterated. The appellant was invited to the disciplinary hearing, and he attended together with the shop steward. He was allowed to make his representations. From the record, the appellant did not fault the disciplinary committee or seek any records. The finding that he was of gross misconduct and negligent in duty was thus procedural and lawful. The summary dismissal from employment was justified. The orders sought for payment of notice and compensation are not available. The learned magistrate well assessed the facts and the law, and applied them accordingly. The court finds no merit in the appeal. **The appeal being fatally defective for want of a Decree appealed against as outlined above, the same is dismissed with costs to the respondent.** **Delivered in open court this 14th day of August 2026** **M. MBARŨ,** **JUDGE** **In the presence of:** Court Assistant: Kemboi ……………………………………………… and …………………………………..………