https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2340

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **ELRC APPEAL NO. E354 OF 2025** *(Before D. K. N. Marete)* **MAISHA STEEL (E.A) LIMITED…………………………….......…………APPELLANT** VERSUS **HARRISON MUTUNE MUNYAO…………………………...……………RESPONDENT** **JUDGMENT** This matter was originated by way of a Memorandum of Appeal from a Judgment delivered on 18th July, 2025 in Ruiru, in MCELRC No. E275 of 2024. It comes out as follows; 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 loader with effect from on or about May, 2023. On 26th June, 2024 the Appellant issued an internal memo addressed to its drivers and turnboys, including the Respondent, prohibiting the loading of any goods onto company vehicles without a loading order duly authorised by management. The Respondent was among those who signed the memo, confirming receipt and understanding of this directive. On 20th July, 2024 an unauthorised extra bundle of iron sheets was loaded onto the Appellant’s motor vehicle by the Respondent and his crew, contrary to the memo. The Appellant submits that following this incident it issued a show cause letter on 26th July, 2024 suspended the Respondent on 1st August, 2024. It held a disciplinary hearing on 6th August, 2024 at which the Respondent attended and chose not to bring a representative and was thereafter issued with a summary dismissal letter on 12th August, 2024. The Appellant submits that the four elements of a fair procedure identified in the authority of **Postal Corporation of Kenya v Andrew Njoroge [2013] eKLR** were satisfied and that the trial court erred in finding the termination unfair. The Appellant further submits that the Respondent did not discharge the burden placed on him under Section 47(5) of the Employment Act, 2007 to demonstrate that the termination was unjustified. The Respondent’s case and submission is that the trial court correctly found the termination unfair. The Respondent contends that he was never informed of his rights during the disciplinary hearing and that the process was deficient. He urges this court to affirm the trial court’s finding of unfair termination and to uphold the award of Kshs. 144,740.00 as unpaid dues. After a considered look and scrutiny of the Memorandum of Appeal, the Record of Appeal, the proceedings and evidence on record including the submissions of the parties the issues for determination therefore are; 1. Whether the termination of the Respondent’s employment was wrongful, unfair and unlawful. 2. Whether the termination was substantively fair. 3. Whether the award of Kshs. 144,740.00 as unpaid dues was supported by evidence. 4. Who bears the costs of this cause. The 1st issue for determination is whether the termination of the Respondent’s employment was wrongful, unfair and unlawful. This being a first appeal, this court is under a duty to reconsider, re-evaluate and re-analyse the evidence on record and arrive at its own independent conclusions. Section 41 of the Employment Act, 2007 obliges an employer, before terminating an employee’s services on grounds of misconduct, poor performance or physical incapacity, to explain to the employee in a language the employee understands the reasons why termination is being considered, and to afford the employee an opportunity to have a representative present and to be heard. In **Postal Corporation of Kenya v Andrew Njoroge [2013] eKLR**, the Court of Appeal identified four elements that an employer must satisfy to establish procedural compliance. On the record, the show cause letter of 26th July, 2024 set out, in clear terms, the specific allegation against the Respondent, namely the loading of an unauthorised extra bundle of iron sheets contrary to the memo of 26th June, 2024. The letter invited the Respondent to respond within three days. The Respondent responded on 29th July, 2024 demonstrating that he understood both the language in which the letter was written and the allegation made against him. This satisfies the legal requirements set out for this initial exercise, to wit, Section 41 of the Employment Act, 2007. Ground 4 of the Memorandum of Appeal takes issue with an apparent inconsistency in the impugned Judgment, namely that the trial court found that the Appellant had complied with the procedural requirements of Section 41 of the Employment Act, 2007 and thereafter went on to find the termination unfair. This court is satisfied that the trial court’s procedural finding was correct. It was not disputed that the Respondent attended the disciplinary hearing of 6th August 2024 and elected, of his own volition, not to bring a witness or representative. An employee who attends a disciplinary hearing and freely chooses not to avail himself of the right to a representative cannot thereafter complain that he was denied that right. The Appellant satisfied the third and fourth elements of the procedural test. The impugned judgment itself found as much and the trial court’s inconsistency lay not in its procedural analysis but in its subsequent finding of unfairness, which this court addresses below. This case is readily distinguishable from **Modern Mail Limited v Omolo (Appeal E027 of 2024) [2025] KEELRC**, where the employee was not informed of the right to a representative and the employer made no attempt to explain that right. Here, the Respondent was issued with a suspension letter containing an express invitation to attend the hearing with a representative or witness of his choice. He chose to attend alone. The third and fourth elements are established. This court accordingly finds that the Respondent’s termination was procedurally fair and that the trial court finding to the contrary was an error. On the 2nd issue for determination is whether the termination was substantively fair. Section 43(1) of the Employment Act, 2007 requires an employer to prove the reason for termination, failing which the termination is deemed to be unfair. Ground 2 of the Memorandum of Appeal, which contends that substantive fairness is a test foreign to Section 45 of the Employment Act above is misconceived. Section 45(2) expressly requires, as one of the elements of fair termination, that the employer acted in accordance with a fair reason connected to the employee’s conduct, capacity or compatibility. Substantive fairness is not a judicial invention but a statutory requirement that the reason for termination must itself be valid and fair. The ground fails. The impugned judgment, having found the procedure fair, held that the Appellant had failed the test of substantive fairness without identifying what that test was or specifying in what respect the Appellant had failed it. The judgment cited the test but did not apply it to the facts. That is an error on the face of the record. On independent re-evaluation, it is undisputed that the Respondent signed the internal memo of 26th June, 2024 and was therefore on express written notice that loading unauthorised goods was prohibited. It is also undisputed that on 20th July, 2024 an unauthorised extra bundle of iron sheets was loaded onto the Appellant’s vehicle by the Respondent and his crew. In his response to the show cause letter, the Respondent did not deny loading the extra bundle; he stated that he did so on the instructions of a person whose authority he did not verify. A deliberate and admitted breach of a known and lawful work rule, of which the Respondent had express written notice, is a valid and fair reason for summary dismissal within the meaning of Sections 43 and 44 of the Employment Act, 2007. This court accordingly finds that the Appellant had a valid and fair reason to terminate the Respondent’s employment. The 2nd issue is as such so answered. The 3rd issue for determination is whether the award of Ksh 144,740.00 as unpaid dues was supported by evidence. A claimant who seeks a specific and quantified sum must plead its particulars and establish it by evidence. Again, the court’s role is to assess the claim against the evidence and arrive at a sum it is independently satisfied is due, and not simply to adopt a party’s unverified schedule. The record discloses that the trial court made no independent assessment of this claim and provided no reasoning for accepting the sum as pleaded. In the absence of any analysis of the components of the claim or the evidence supporting each head, the award cannot stand. Ground 7 of the Memorandum of Appeal accordingly succeeds. The award of Kshs. 144,740.00 as unpaid dues is set aside. I am therefore inclined to allow the appeal and order as follows; 1. The judgment of the trial court at Ruiru delivered on 18th July, 2025 in MCELRC No. E275 of 2024, together with the decree issued pursuant thereto is set aside. 2. The Respondent’s claim in MCELRC No. E275 of 2024 be and is hereby dismissed. 3. The Appellant shall, in the absence of having done so, issue the Respondent with a Certificate of Service within thirty (30) days of this judgment of court. 4. Each party shall bear their costs of the Appeal. Delivered, dated and signed this **29th** day of **July** 2026. **D. K. Njagi Marete** **JUDGE** **Appearances:** 1. Muthoni holding brief for Michuki instructed by K Michuki Law Advocates for the Appellant. 2. Mr. Kuyoh instructed by Kuyoh & Company Advocates for the Respondent.