https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1123

Koppert Biological Systems Ltd v Chege (Civil Appeal E027 of 2020) [2026] KECA 1123 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1123 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E027 of 2020 WK Korir, L Ndolo & AI Hassan, JJA June 12, 2026 Between Koppert Biological Systems Limited Appellant and Peter Njoroge Chege Respondent (Appeal from the Judgment of the Employment and Labour Relations Court at Nairobi (Wasilwa, J.) delivered on 28th May 2020 in ELRC Cause No. 2188 of 2015 Cause 2188 of 2015 ) Judgment 1.On 28th May 2020, the Employment and Labour Relations Court (Wasilwa, J.) delivered judgment in favour of the respondent in the sum of Kshs. 765,000 made up of: 1 month’s salary in lieu of notice, salary for 6 days in July 2015, leave pay for 1 year and 8 months’ salary in compensation for unlawful and unfair termination of employment. 2.Aggrieved by this judgment, the appellant filed the present appeal. In its memorandum of appeal dated 17th July 2020, the appellant faults the trial court for: failing to consider the appellant’s counterclaim and submissions, as well as the respondent’s contribution in the breakdown of the employment relationship. The appellant further takes issue with the compensatory award, which it terms as excessive in the circumstances of the case. 3.This is a first appeal and, as restated by this Court in Abok James Odera & Associates vs. John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, the duty of a first appellate court is to re- consider, re-analyze and re-evaluate the evidence on record and draw its own conclusions, always bearing in mind that it has neither seen nor heard the witnesses. 4.In discharging this mandate, the appellate court is restricted to the evidence on record, and there is no leeway to introduce extraneous matters that were not canvassed at the trial. (See Kenya Ports Authority vs. Kuston (Kenya) Limited [2009] 2 EA 212). 5.Regarding the remit of a first appellate court, this Court in its decision in Musera vs. Mwechelesi & Another [2007] KLR 159 stated as follows:“We must at this stage remind ourselves that though this is a first appeal to us and while we are perfectly entitled to make our own findings on the evidence, the trial judge has in fact made clear and unequivocal findings and as an appellate court we must indeed be very slow to interfere with the trial judge’s findings unless we are satisfied that either there wasabsolutely no evidence to support the findings or that the trial judge must have misunderstood the weight and bearing of the evidence before him and thus arrived at an unsupportable conclusion.” 6.The employment history between the parties was uncontroverted; the respondent was employed by the appellant on 5th June 2014, in the position of Technical Sales Representative. He worked as such until 6th July 2015, when he left employment. There was, however, disagreement regarding the circumstances under which the separation occurred, and this is the subject of the appeal now before us. 7.The respondent’s case as presented before the trial court was that on 6th July 2015, the respondent was directed by the appellant’s General Manager, who was accompanied by other members of the management, to hand over company assets in his possession and leave the work premises instantly. The respondent therefore deemed himself dismissed without justifiable cause and without notice. 8.While denying the respondent’s claim, the appellant accused the respondent of deserting duty from 6th July 2015. Desertion is a grave administrative offence falling within the realm of gross misconduct, which places the offending employee within the crosshairs of summary dismissal. Nevertheless, like all other forms of misconduct, desertion must be proved. 9.In defining what constitutes desertion from employment, we draw from the South African decision in Seablo vs. Belgravia Hotel [1997] 6 BLLR 829 (CCMA) where it was held that:“…desertion is distinguishable from absence without leave, in that the employee who deserts his or her post does so with the intention of not returning or, having left his or her post, subsequently formulates the intention not to return. On the other hand…an employer may deduce the intention of not returning to work from the facts of the case and should demonstrate the same. The facts may include lack of communication from the employee, duration of absence and attempts made to reach out or establish the whereabouts of the employee. Show cause notice to explain the absence may also be a factor to consider.” 10.The significant point is that an employer fronting desertion as a defence against a claim of unlawful termination of employment must demonstrate efforts made to reach out to the employee, with a view to putting them on notice that termination on this account is under consideration. It is not enough for an employer to flaunt the term “desertion” without more. 11.In the case before the Employment and Labour Relations Court (ELRC) there was no proof of any attempt made by the appellant to reach out to the respondent; and certainly, no show cause notice was ever issued on this account. More significantly, the appellant’s actions after 6th July 2015 betray a clear intention formed as early as 6th July 2015, to terminate the respondent’s employment. First, in a response to a demand letter dated 21st September 2015, the appellant’s advocates wrote as follows:“That it is true that your client was an employee of our client until the 6th day of July 2015 when he was lawfully terminated from employment owing to the gross misconduct in violation of company rules and code of conduct and contrary to the groups of company’s terms and conditions of employment, facts which are within your client’s knowledge.” 12.This response letter, dated 6th October 2015, discloses the reason for termination of the respondent’s employment as gross misconduct; there was no mention of desertion by the respondent. We note that the appellant did not deny having issued the instructions forming the basis of this letter to its advocates. 13.Second, in August 2015, the appellant published a notice in the Daily Nation Newspaper indicating that the respondent had ceased being its employee from 6th July 2015, which coincides with the date of termination. 14.From the foregoing, it is clear that the appellant terminated the respondent’s employment verbally on 6th July 2015, the same day he is accused of having deserted duty. We therefore agree with the respondent that the narrative of desertion was a feeble attempt to circumvent the ramifications of an unlawful termination. 15.If indeed the respondent was guilty of gross misconduct as alleged, he ought to have been given an opportunity to respond to the relevant charges at the shop floor. In its decision in Kenfreight (E.A) Limited vs. Nguti [2019] KESC, the Supreme Court affirmed that the requirement for due process at the shop floor is mandatory. 16.Notably, the appellant did not issue any termination letter to the respondent nor was he subjected to any disciplinary process. We therefore agree with the learned trial Judge that termination of the respondent’s employment was in violation of the procedural fairness requirements established by section 41 of the Employment Act. 17.The appellant complained that the judgment of the trial court was arrived at without the benefit of its final submissions. The respondent’s response is that the submissions were filed outside the timeframe given by the ELRC. While the appellant does not deny having filed its submissions after the deadline given by the trial court, we have, on our part, agonised over the question whether there was any tangible prejudice occasioned by the omission. 18.In his submissions dated 25th March 2021, the respondent referred to this Court’s decision in Carolyne Nasimiyu vs. Agricultural Finance Corporation Limited [2020] eKLR where it was held that failure to consider submissions per se does not nullify an otherwise sound judgment. Looking at the judgment by the learned trial Judge, we are satisfied that all relevant factors regarding the rival allegations of unlawful termination and desertion were taken into account. 19.With regard to the appellant’s averment that the learned trial Judge failed to consider the counterclaim and set-off, we agree with the respondent that there can be no basis for such an allegation. We say so because the judgment expressly indicates that the learned trial Judge, after considering the appellant’s counterclaim, allowed it partially in the sum of Kshs. 7,219, which is deductible from the decree issued in favour of the respondent. 20.We now turn to the final question whether the compensatory award issued by the trial court was excessive. An award in compensation for unlawful termination of employment is one of the remedies provided under section 49(4) of the Employment Act. Such an award is discretionary, and we must therefore consider this part of the appeal in light of established principles regarding the setting aside of decisions arising from the exercise of discretion. 21.In its submissions dated 22nd February 2021, the appellant relies on this Court’s decision in United India Insurance Co. Ltd & 2 Others vs. East African Underwriters (Kenya) Ltd [1985] eKLR where it was held that:“The Court of Appeal is only entitled to interfere with (set aside a trial court judgment) if one or more of the following matters are established: first, that the judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took into account considerations of which he should not have taken account; fourthly, that he failed to take account of considerations of which he should have taken account or fifthly, that his decision, albeit a discretionary one, is plainly wrong.” 22.The appellant further relies on the decision in Idi Ayub Omari Shabani vs. City Council of Nairobi [1985] eKLR where this Court stated the following:“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.” 23.Regarding awards in compensation for unlawful termination of employment, section 49(1) of the Employment Act sets out the factors to be taken into account in reaching an award, including:a.The wishes of the employee;b.The circumstances in which the termination took place, including the extent, if any, to which the employee caused or contributed to the termination;c.The employee’s length of service with the employer;d.The reasonable expectation of the employee as to the length of time for which his employment with that employer might have continued but for the termination;e.The opportunities available to the employee for securing comparable or suitable employment with another employer;f.Any conduct of the employee which to any extent caused or contributed to the termination;g.Any failure by the employee to reasonably mitigate the losses attributable to the unjustified termination; andh.Any compensation, including ex gratia payment, in respect of termination of employment paid by the employer and received by the employee. 24.On this score, the Supreme Court in Kenfreight vs. Nguti (supra) rendered itself thus:“On an award on damages, the Act limits the award a court of law can make to a maximum of 12 months’ salary. In as much as the trial court therefore does have discretion in the quantum of damages to award for unfair or wrongful termination of employment, it must be guided by the principles and parameters set under sub-section 4 of section 49 of the Employment Act.” 25.The trial court awarded eight (8) months’ salary as compensation, which the appellant deems to be excessive. While the judgment did not set out the factors considered by the trial Judge in making the award, none of the factors justifying the disturbance of an award borne out of the exercise of discretion was established before us. We therefore find no reason to cause us to interfere with the award. 26.We must, however, stress the importance of supporting every award under section 49 of the Employment Act, by pointing out the factors taken into account in reaching the decision. This is not only a requirement of judicial accountability but also serves to create stability and predictability in compensatory awards. 27.Ultimately, we find this appeal to be without merit and proceed to dismiss it with costs to the respondent. DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE 2026.W. KORIR............................... JUDGE OF APPEALL. M. NDOLO............................... JUDGE OF APPEALAHMED ISSACK................................ JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR.