https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1306

Wanyonyi v Marina aka Pearl Beach Hotel Limited & another (Appeal E250 of 2025) [2026] KEELRC 1306 (KLR) (18 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1306 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Appeal E250 of 2025 M Mbarũ, J May 18, 2026 Between Linda Nanjala Wanyonyi Appellant and English Point Marina aka Pearl Beach Hotel Limited 1st Respondent The Receiver Manager, English Point Marina aka Pearl Beach Hotel Limited 2nd Respondent (Being an appeal from the judgment of Hon. G. Sogomo delivered on 5 December 2025 in Mombasa CMELRC No. E558 of 2024) Judgment 1The appeal arises from the judgment delivered on 5 December 2025 in Mombasa CMELRC No. 558 of 2024. The appellant seeks that the judgment be set aside or reviewed with reassessment of the claims. 2.The background of the appeal is a claim filed by the appellant before the trial court. The case was that the 1st respondent was a limited liability company, and the 2nd respondent was the receiver-manager appointed by the Kenya Commercial Bank (KCB) in receivership on 31 May 2022. 3.The appellant was employed by the 1st respondent on 1 October 2019 as a housekeeper supervisor at a wage of Ksh. 33,461.47 per month. Her employment was terminated on 1 August 2024 without reason. Employment was regulated by written contracts.Contract 1 October 2019 to 29 January 2020.Contract for 1 February 2020 to 30 March 2020.Contract for 1 April 2020 with renewals until 16 June 2024, ending on 31 October 2024. 4.The claim was that the salary was reviewed to Ksh. 28,489.67 per month. There were benefits for NSSF and NHIF registration. A service charge payment was included in the gross wage at Ksh. 33,461.67 per month. On 27 July 2024, the appellant applied for 9 days' leave from 24 July 2024 ending on 2 August 2024. Upon resuming duty on 3 August 2024, the appellant was issued with notice terminating employment. The 2nd respondent issued a Certificate of Service. There was no prior notice, hearing, or reasons given for the termination of employment. The subsisting contract had not lapsed. This was unlawful and unfair, and thus claimed the following:a.12 months' compensation Ksh. 401,540.04.b.Notice pay Ksh. 33,461.67.c.Service pay for 4 years Ksh. 66,923.34d.3 months' salary for August to October 2024 Ksh. 100,385.01e.Costs of the suit. 5.In reply, the respondents’ case is that the appellant was employed as a cleaner on 1 February 2020 on a fixed seasonal contract that terminated on 30 April 2020, earning KSh. 15,700. The contract was extended over time until a term contract from 1 May 2024 ending 31 October 2024 at a wage of Ksh. 25,000 per month. The wages paid had an additional provision for a house allowance of Ksh. 4,273.45 and was registered with NSSF. Service charge payment was not a term of the seasonal contract, and it remained a voluntary ex gratia payment. There was a summary dismissal of the appellant on account of gross misconduct, with reasons well explained after a hearing held on 23 July 2024, and these reasons were outlined in the notice terminating employment dated 1 August 2024. Salary for August 2024 was paid in full, and the claims made are without merit. 6.The learned magistrate heard the parties and held that the summary dismissal was justified, and the claims were dismissed with costs. 7.Aggrieved by the judgment, the appellant contends that the learned magistrate erred in law and fact by failing to find that no notice to show cause was issued before the employment was terminated by summary dismissal. There was an error in finding that the appellant was invited to a disciplinary hearing but failed to attend; hence, the minutes for 23 July 2024 were not genuine, and the evidence that the disciplinary panel found the appellant guilty of malfeasance was not true. There was no time or opportunity afforded to the appellant to prepare for the disciplinary hearing as alleged, which was contrary to sections 41 and 45 of the Employment Act (the Act), and the appeal should be allowed with a review of the claims. 8.On appeal, the appellant submitted that the trial court found her dismissal to be unprocedural and unfair. She claims that although the court recognised she underwent a disciplinary process, the record contains no evidence of a notice to show cause or an invitation to a disciplinary hearing. The only documents the Respondent relied on were minutes not signed by the Appellant and a termination letter, which the Appellant asserts were afterthoughts. She maintains that she was dismissed on 1 August 2024 without being afforded a hearing, notice, or an opportunity to defend herself, in breach of sections 41 and 45 of the Act. 9.In support of the requirement for a fair hearing, the Appellant relies on Assen & another v Khamunya (Employment and Labour Relations Appeal No. E135 of 2021) (2025) KEELRC 363 (KLR) (12 February 2025), where the court held that termination of employment without subjecting an employee to a disciplinary hearing as required under section 41 of the Act renders the termination unfair. 10.She further relies on Kimani v Rosslyn Academy (Cause E. 251 of 2022) (2025) KEELRC, where the court held that a disciplinary process must embody the elements of a fair hearing, including the right to access relevant information, materials, and evidence and to challenge the same, and that failure to observe these elements renders the termination procedurally unfair. 11.The Appellant also argues that the trial court erred in concluding that she was bound by a fixed-term contract, without considering that the contract was prematurely terminated before its expiry on 31 October 2024. The court misdirected itself by dismissing her claim on this basis, despite clear evidence that the employment relationship remained ongoing. 12.In support of the principles governing termination, the appellant submitted that in Wanyera v Central Isiolo Investment Limited (Appeal E002 of 2023) [2024] KEELRC 596 (KLR) (8 March 2024), the court held that termination must be based on a valid and justifiable reason and must be carried out in accordance with a fair procedure, including informing the employee of the charges and affording them an opportunity to be heard. 13.On the matter of remedies, once it is established that the termination was unfair, compensation is available under section 49(1)(c) of the Act, and that the trial court’s reliance on the absence of a contractual provision for compensation was mistaken, as statutory provisions take precedence under section 3(6) of the Act. The denial of one month’s salary in lieu of notice was unjustified, since section 46 of the Act does not govern entitlement to notice pay. 14.The Appellant also contests the trial court’s omission in deciding her claim for severance pay and other entitlements, including salary for the remaining period of the contract, and argues that these should have been considered based on the evidence on record. The trial court erred in awarding costs to the Respondent and misapplied the law in denying her costs and interest. Consequently, the appellant urges the court to set aside the trial court's judgment and reassess the claims.The respondent did not file any written submissions. Determination 15.As this is a first appeal, the court may review the record, reassess the findings, and render its conclusion. However, consider that the trial court had the chance to hear the witnesses. 16.By a notice dated 1 August 2024, the respondents terminated the appellant's employment with immediate effect. The reasons were that:… your glaring bickering with your superior in the preceding meeting of 23/7/2024 showcased that you are not on the same page at all. This contravenes your employment contract and is a breach of responsibility and insubordination.Without prejudice, it was inevitable to save the hotel from further drama and embarrassment. This contravenes your employment contract and is a breach of responsibility and insubordination. 17.The appellant filed the minutes of the disciplinary meeting with her claim. She contests that these were not correct. She, however, did not explain how she obtained these minutes, which ordinarily should be produced by the employer, the respondents. 18.Summary dismissal from employment is allowed under the provisions of section 44 of the Act. However, before the employer can invoke such a mandate and right, the employee should be protected under section 41(2) of the Act. The employee should be notified of the allegations made against her and given a hearing was held in Masika v Fargo Courier Limited [2026] KEELRC 412 (KLR) and also reiterated in Mohamed v African Banking Corporation [2026] KEELRC 910 (KLR). The employee who is alleged to have committed gross misconduct must be invited to a hearing. However short the notice period, the requirement for a hearing is mandatory. 19.In this case, the appellant was accused of being insubordinate. She has produced the minutes of the disciplinary hearing held on 23 July 2024. She has not signed these minutes, but they are in her possession. Although she contested these records, possession indicates knowledge. 20.In her evidence, the appellant testified that, on 24 July 2024, she proceeded on her 9 leave days and resumed work on 3 August 2024, when she was served with notice terminating her employment. 21.Termination of employment by summary dismissal is lawful. This applies where the employer finds the employee guilty of gross misconduct after the employee is taken through a hearing as required under section 41(2) of the Act. 22.In this case, the learned magistrate analysed the facts and evidence and correctly applied the law. The principles under sections 41 and 45 of the Act were applied, thereby justifying the termination of employment. 23.Notice pay and compensation are to be available to an employee whose employment is terminated upon summary dismissal that is justified.The appellant was paid for August 2024. This is not denied. 24.Under the seasonal contract ending in October 2024, service pay is not an agreed term. Such was not due, and where paid, it was ex gratia. 25.Regarding the claim for payments for August to October 2024, the employment was terminated on justified grounds. The term contract was lawfully terminated due to the appellant's gross misconduct. The respondents have no responsibility to pay for the unexpired term of the contract. 26.On costs, the respondents did not attend these proceedings. No orders on costs. 27.Accordingly, the appeal is without merit and is hereby dismissed. Judgment in Mombasa CMELRC No. E558 of 2024 is hereby affirmed. No orders on costs. DELIVERED IN OPEN COURT AT NAIROBI, THIS 18TH DAY OF MAY 2026M. MBARŨJUDGEIn the presence of:Court Assistants: Catherine, Kemboi and Omar……………………………………………… and…………………………………..…………..