https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2300

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **ELRC APPEAL NO. E353 OF 2025** *(Before D. K. N. Marete)* **MAISHA STEEL (E.A) LIMITED………………………………………APPELLANT** VERSUS **ABDULKARIM MUSSAH…………………………………………………RESPONDENT** **JUDGMENT** This matter was originated by way of a Memorandum of Appeal dated 19th August, 2025. This arises from a judgment delivered on 18th July, 2025 in Mavoko, in MCELRC No. E276 of 2024. The Appeal is laid out on the following grounds: 1. *THAT the Learned Magistrate erred in law and fact by deeming the Respondent's termination to be unfair;* 2. *THAT the Esteemed Magistrate erred in relying on the test of substantive fairness which is foreign to the provisions of Section 45 of the Employment Act which stipulates that the relevant test is the test of procedural fairness;* 3. *THAT the learned Magistrate misapplied the law in her application and interpretation of Section 41 of the Employment Act;* 4. *THAT the Learned Magistrate's decision was marred with material inconsistencies and contradictions, to wit, she found that there was no evidence of any communication sent to the Respondent explaining his rights-during the hearing yet she clearly refers to the stated documents at Paragraph 10 of her Judgment.* 5. *THAT the Learned Magistrate erred in law and fact by failing to take into consideration the evidence adduced by the Appellant;* 6. *THAT the learned Magistrate erred in law and fact by issuing orders in her final disposition that were not supported by evidence;* 7. *THAT the Learned Magistrate erred in law and fact in failing to be guided by the relevant provisions of law on examination of evidence and secondly on the burden of proof placed on the party who instituted the suit. The decision to award unpaid dues is unreasonable, excessive and a judicial overreach,* The Appellant prays thus; 1. *The Appeal herein be allowed.* 2. *The Ruling and Orders of the Lower Court made on 18th July, 2025 be set aside and this Honourable Court be pleased to substitute with the following order:* 3. *That the Respondent's termination was fair and met all legal requirements set out in the Employment Act.* 4. *That the suit against the Appellant be dismissed with costs.* 5. *The costs of the Appeal be granted to the Appellant* It is the Appellant’s case and submission that the Respondent was employed as a turnboy tasked with transporting goods. On 25th July, 2024 goods that had been loaded on the Appellant’s vehicle for delivery were found to be missing upon the vehicle’s return. The Respondent was issued with a show cause letter dated 26th July, 2024 setting out the allegation of loss of goods, suspended on the same date and invited to a disciplinary hearing. He attended the hearing and elected not to bring a witness or representative, and offered an explanation which the Appellant found unsatisfactory. A summary dismissal letter dated 12th August, 2024 was thereafter issued. The Appellant submits that it discharged the four elements required under the Court of Appeal’s articulation in **Postal Corporation of Kenya v Andrew Njoroge [2013] eKLR** and that the trial court erred in finding the termination unfair. The Respondent’s case and submission is that the trial court correctly found the termination unfair. The Respondent maintains that he was not the one responsible for the missing goods and that the disciplinary process was tainted. He relies on Section 43 of the Employment Act, 2007 on the duty of the employer to prove the reason for termination and the procedural requirements set out in Section 41. After a considered look and scrutiny of the Memorandum of Appeal, the Record of Appeal, the proceedings and evidence on record and the submissions of the parties the issues for determination therefore become; 1. Whether the trial court correctly distinguished between substantive and procedural fairness in arriving at her finding of unfair termination. 2. Whether the termination of the Respondent’s employment was substantively fair. 3. Whether the termination was procedurally fair. 4. Whether the reliefs granted by the trial court were properly founded. The 1st issue for determination is whether the trial court correctly distinguished between substantive and procedural fairness in arriving at her finding of unfair termination. It is necessary at the outset to correct a misapprehension shared by both parties on appeal. The Appellant argues that the trial court relied on a test of substantive fairness foreign to Section 45 of the Employment Act, 2007. A careful reading of the impugned judgment shows that the trial court found in terms, that the Appellant had proved a valid reason for termination but that the termination was procedurally deficient. The trial court therefore correctly applied the dual-limb framework of substantive and procedural fairness. This distinction matters because Ground No. 2 of the appeal, premised on the assertion that the trial court relied on an incorrect test, is misconceived. The trial court applied the correct test. As to Ground No. 4, concerning an alleged contradiction in the trial court’s treatment of whether the Respondent attended the hearing, this court is satisfied that the alleged inconsistency is one of expression rather than of substance the trial court having found that the hearing was held but that its conduct was deficient. There is no material contradiction on this. The 2nd issue for determination is whether the termination of the Respondent’s employment was substantively fair. Section 45(2)(a) and (b) of the Employment Act, 2007 requires an employer to prove that the reason for termination was valid and that it was a sufficient reason in all the circumstances. The record discloses that the Respondent was a turnboy whose duty was to ensure that goods loaded for delivery were delivered and accounted for. On 25th July, 2024 goods valued at Kshs. 50,000.00 were found to be missing upon the vehicle’s return. The summary dismissal letter records that the Respondent, during the disciplinary hearing, admitted that he had knowledge of the missing goods but failed to report the matter to his supervisor. This court is guided by the Court of Appeal’s in its articulation in **Postal Corporation of Kenya v Andrew Njoroge [2013] eKLR** that a reason for termination be assessed against the standard of what a reasonable employer, acting within the range of reasonable responses, would have done in the same circumstances. The loss of goods entrusted to the Respondent’s care, coupled with his admitted failure to report the loss, constitutes a valid and fair reason for termination. This answers the 2nd issue for determination. The 3rd issue for determination is whether the termination was procedurally fair. Having found that the trial court correctly determined the procedural limb in the Appellant’s favour at the trial level, this court examines the record independently. Section 41(1) of the Employment Act, 2007 requires an employer, before terminating an employee for misconduct, to explain the reason for the intended termination to the employee in a language the employee understands and to hear and consider any representations by the employee or his representative. The record shows that the Respondent was served with a show cause letter dated 26th July, 2024 particularising the allegation(s) against him, was suspended, was notified of the disciplinary hearing, attended it, and offered an explanation. This court notes an inconsistency on the face of the documents in that the suspension letter is dated the same day as the show cause letter, raising a question as to whether the suspension preceded or followed the opportunity to respond. However, this procedural curiosity does not, in the totality of the circumstances, displace the finding that the Respondent was given a hearing. No separate letter was issued inviting the Respondent to a hearing with a formal notice of his right to a representative, and this is a procedural imperfection. However, the Respondent attended the hearing and elected not to bring a representative which on the facts of this case amounts to a waiver of that right. This court accordingly finds that the termination of the Respondent’s employment was both substantively and procedurally fair. The 3rd issue is so answered. The 4th issue for determination is whether the reliefs granted by the trial court were properly founded. Having found that the termination was fair both substantively and procedurally, it follows that the reliefs granted by the trial court, being compensation for unfair termination and notice pay, were not properly founded and must be set aside. On the question of unpaid dues specifically, this court has independently examined the record and finds no basis for any award of unpaid terminal dues separate from those already addressed by the trial court’s orders, and none is made. I am therefore inclined to allow the appeal and order as follows; 1. The judgment of the trial court delivered on 18th July 2025 in MCELRC No. E276 of 2024 is set aside. 2. The Respondent’s claim before the trial court be and is hereby dismissed. 3. Each party shall bear their costs of this cause. Delivered, dated and signed this **29th** day of **July** 2026. **D. K. Njagi Marete** **JUDGE** Appearances: 1. Miss Muthoni instructed by K. Michuki Law Advocates for the Appellants. 2. Mr. Kuyoh instructed by Kuyoh & Company Advocates for the Respondent.