https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/156

Kipyegon v Siginon Group Ltd (Cause E573 of 2025) [2026] KEMC 156 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEMC 156 (KLR) Republic of Kenya In the Mombasa Law Courts Cause E573 of 2025 EM Mwamuye, SRM June 25, 2026 Between Bernard Kitur Kipyegon Claimant and Siginon Group Limited Respondent Judgment Introduction 1.The Claimant instituted this claim vide a Memorandum of Claim dated 26th August 2025 and filed on 28th August 2025 seeking reliefs arising from what he alleges was an unfair and unlawful termination of his employment by the Respondent. 2.The Respondent entered appearance and filed a Response to the Claim together with witness statements and documents. The matter subsequently proceeded by way of written submissions pursuant to Rule 59 of the Employment and Labour Relations Court (Procedure) Rules. The Claimant duly filed written submissions while the Respondent, despite having participated in the proceedings and filed pleadings, did not file written submissions. 3.The Court has considered the pleadings, witness statements, documentary evidence and the Claimant's submissions. 4.Undisputed Facts- The following facts are not disputeda.The Claimant was employed by the Respondent as a Logistics Driver.b.He was initially employed on 17th September 2018 and was confirmed on permanent and pensionable terms on 1st March 2019.c.At the time of separation, he earned a gross monthly salary of Kshs.40,877.52/=.d.On 19th June 2024, the Respondent issued the Claimant with a Notice to Show Cause alleging that on 15th June 2024 while driving motor vehicle registration number KDH 753P, he deviated from the designated route and participated in the illegal sale of client cargo.e.The Claimant responded to the Notice to Show Cause denying the allegations.f.His employment was terminated vide a letter dated 19th July 2024. 5.The dispute revolves around whether the Respondent had a valid and fair reason to terminate the Claimant's employment and whether due process was followed. Issues For Determination 6.The issues arising for determination are:a.Whether the Respondent had a valid and fair reason to terminate the Claimant's employment.b.Whether the termination complied with the procedural requirements of the Employment Act.c.Whether the Claimant established a claim for defamation.d.Whether the Claimant is entitled to the remedies sought. Whether the respondent had a valid and fair reason for termination 7.Sections 43 and 45 of the Employment Act place the burden upon an employer to prove the reasons for termination and demonstrate that the reasons were valid and fair. 8.The Respondent's case was that the Claimant: Deviated from the designated route. Stopped at an unauthorized location at Masimba. Participated in the illegal sale of client cargo. Colluded with third parties in the theft of cargo. 9.The Respondent relied principally on GPS records, investigations and a statement allegedly recorded from one James Njuguna Maina. 10.The Claimant denied involvement in any theft or sale of cargo and explained that the deviation was occasioned by traffic congestion and safety considerations. He further produced delivery records, a consignment note and weighbridge documents showing that the consignment reached its destination. 11.A careful review of the Respondent's own evidence reveals a significant weakness. The statement of James Njuguna Maina, which the Respondent relied upon as direct evidence of the alleged theft, states that while truck KDH 753P stopped at the location, it did not offload any cargo because security officers arrived before any offloading could occur. 12.That evidence falls short of establishing that the Claimant actually sold or stole cargo. Further, no inventory report was produced showing any shortage of cargo attributable to the Claimant. No customer complaint was produced. No evidence was tendered demonstrating that any quantity of cargo entrusted to the Claimant was missing upon delivery. 13.The Court accepts that the GPS records may have demonstrated route deviation and an unauthorized stop. However, route deviation by itself is not equivalent to theft. 14.The Respondent bore the statutory burden of proving the specific misconduct relied upon. The accusation against the Claimant was not merely route deviation; it was participation in theft and illegal sale of cargo. 15.The evidence placed before Court does not establish on a balance of probabilities that the Claimant stole or sold any cargo. 16.Accordingly, the Court finds that the Respondent failed to discharge its burden under Section 43 of the Employment Act. 17.The termination therefore lacked a valid and fair reason within the meaning of Sections 43 and 45 of the Employment Act. Whether procedural fairness was observed 18.Section 41 of the Employment Act requires an employer contemplating termination on grounds of misconduct to: Explain the allegations to the employee in a language he understands; Permit the employee to be accompanied by a fellow employee or union representative; Hear and consider the employee's representations before arriving at a decision. 19.The record shows that: The Claimant received a Notice to Show Cause. He submitted a written response. He was invited to a disciplinary hearing. Minutes of the hearing were generated. The Claimant attended the hearing and participated. 20.Although the Claimant contended that the process was predetermined, the evidence on record demonstrates that the Respondent afforded him an opportunity to respond both in writing and orally. 21.The Court is therefore satisfied that the Respondent substantially complied with the procedural requirements of Section 41 of the Employment Act. The termination was procedurally fair but substantively unfair. Whether the claimant proved defamation 22.The Claimant sought damages for defamation alleging that the accusations of theft and sale of cargo damaged his reputation within the transport and logistics industry. 23.Defamation is a distinct tort requiring proof of: Publication; Falsity; Injury to reputation; and Publication to third parties. 24.While the Claimant alleges that the accusations were communicated to other employees and third parties, no independent evidence was placed before Court identifying the persons to whom the statements were published, the exact words used, or the resulting reputational loss. 25.The Court notes that allegations made within disciplinary proceedings are ordinarily privileged where they are made in the context of investigating workplace misconduct. 26.Although the Court has found that the Respondent failed to prove the allegations against the Claimant, that finding alone does not automatically establish the tort of defamation. 27.The Court therefore finds that the claim for defamation was not proved to the required standard and is declined. Remedies 28.Declaration- The Court declares that the termination of the Claimant's employment was substantively unfair and unlawful for want of a valid and fair reason. 29.Compensation for Unfair Termination- Under Section 49(1)(c) of the Employment Act, the Court may award compensation of up to twelve months' salary. In assessing compensation, the Court has considered: The Claimant served for approximately five years. He had no proven previous disciplinary record. The Respondent failed to prove the allegations forming the basis of termination. The Claimant contributed to the events leading to the disciplinary process by admittedly deviating from the designated route and stopping at an unauthorized location. 30.Balancing all relevant considerations under Section 49(4) of the Employment Act, the Court finds that an award equivalent to five (5) months' gross salary is fair and reasonable. Kshs.40,877.52 × 5 = Kshs.204,387.60/=. 31.Terminal Dues- The Claimant prayed generally for accrued and unpaid terminal dues. No specific claim was pleaded or proved regarding: Leave days; Overtime; Underpayments; Notice pay; or Any quantified terminal entitlement. Special employment claims must be specifically pleaded and strictly proved. This prayer is therefore declined. 32.Certificate of Service- Under Section 51 of the Employment Act, every employee whose employment terminates is entitled to a Certificate of Service.The Respondent shall issue the Claimant with a Certificate of Service within thirty (30) days of this Judgment. 33.Defamation Damages- Declined. 34.Costs- The Claimant has substantially succeeded in his claim and is awarded costs. 35.Interest- The award shall attract interest at court rates from the date of judgment until payment in full. Final Orders 36.Accordingly, judgment is entered for the Claimant against the Respondent as follows:a.A declaration is hereby issued that the termination of the Claimant's employment was unfair and unlawful.b.The Claimant is awarded compensation for unfair termination equivalent to five (5) months' gross salary: Kshs.204,387.60/=c.The claim for defamation is dismissed.d.The claim for unspecified terminal dues is dismissed.e.The Respondent shall issue the Claimant with a Certificate of Service within thirty (30) days.f.The Claimant shall have costs of the suit.g.The award shall attract interest at court rates from the date of judgment until payment in full. It is so ordered. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOSFT TEAMS AT MOMBASA THIS 25TH JUNE 2026.……………………………………………….EMILY M. MWAMUYESENIOR RESIDENT MAGISTRATE