Muli v Shreeji Enterprises (K) Ltd (Cause 715 of 2018) [2026] KEELRC 1464 (KLR) (22 May 2026) (Judgment)

Muli v Shreeji Enterprises (K) Ltd (Cause 715 of 2018) [2026] KEELRC 1464 (KLR) (22 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1464 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Machakos Cause 715 of 2018 JW Keli, J May 22, 2026 Between Amos Ngwili Muli Claimant and Shreeji Enterprises (K) Ltd Respondent Judgment Introduction 1.By a memorandum of claim dated 11th May 2018, the Claimant seeks:-a.A declaration that the Claimant's termination was wrongful and unfair.b.A declaration that the Claimant's right to fair labour practices has been breached.c.An order as to compensation to the Claimant as the court may deem fit in lieu of unfair termination.d.The Claimant be paid his terminal benefits as set out in paragraph 10 hereinabove totaling to Kshs 374,651/-e.The Respondent be ordered to compensate the Claimant for wrongful dismissal at the equivalent of twelve (12) months gross salary.f.The Honourable Court do issue such orders and give such directions as it may deem fit to meet the ends of justice.g.The Respondent to pay the costs of this claim. 2.The Claimant’s claim was accompanied by his list of witnesses dated 11th May 2018; witness statement of even date; and list of documents of even date with the bundle of documents attached. 3.In response to the claim, the Respondent entered appearance on 6th June 2018 through the law firm of Were & Oonge Advocates, and filed a statement of response dated 13th November 2018. In support of his response, the Respondent filed a list of witnesses dated 11th January 2019; witness statement of Barrack Odera of even date; and a list and bundle of documents of even date. 4.To counter the Respondent’s case, the Claimant filed a Reply dated 11th April 2019. Hearing and evidence 5.The entire case of the claimant and of the respondent was heard by Justice Nderi Nduma (as he then was) and the parties agreed that this court could write the judgment. The court relied on the typed and certified proceedings. The Claimant’s case in summary 6.The Claimant’s case is that he was employed by the Respondent on or about December 2015 as a truck driver assigned to truck Registration No. KBX 580K3. He worked for the Respondent until March 2017 when the Respondent wilfully and wrongfully terminated his employment without any reasons, after forcing him to continue working despite having notified them that he was in need of medical attention, under threat of being sacked. 7.The Claimant avers that on or about 20th July 2017 the respondent caused the Claimant to be arrested and instituted malicious criminal charges (Stealing by servant contrary to Section of Section 281 the Penal Code) at the Senior Magistrate Court at Loitoktok, namely, Criminal Case No. 262/2017. The case was dismissed under section 202 of the Civil Procedure Code. The allegations of theft have affected his ability to obtain work. 8.The Claimant complains that the Respondent has since his termination from employment, refused to pay his salary arrears and other terminal dues contrary to the provisions of the law. Respondents’ case in brief 9.The Respondent admits that the Claimant was its employee, having engaged him as a driver to drive its motor vehicle KBX 500K which is part of a fleet of commercial motor vehicles owned by the Respondent. It is the Respondent’s case that the circumstances that led to the parties separation were that the Claimant was sent on a delivery assignment using the Respondent's motor vehicle KBX 500K and Trailer ZM7271 600, 50kg bags of cement from National Cement Company in Lukenya. The Claimant’s instructions were to deliver the cement to the National Cement Company's factory located at Mureishi in Loitoktok Sub County specifically to Pindoria Holdings Limited, contractors carrying on construction at the site. 10.The consignment under the Claimant's care was duly dispatched on 27th March 2017 vide a Delivery Note No. 294276. It is averred that the Respondent's logistics team called the client who was to receive the delivery to confirm whether the consignment had arrived, but the officials of the National Cement Company responded negatively. This raised suspicion causing the Respondent to commence investigations into the matter. The Respondent’s representative, after visiting the National Cement Company’s site where the Claimant was supposed to deliver the consignment, established that the Respondent's truck, which the Claimant had driven with the consignment, was parked within the premises, but the Claimant could not be traced. They were informed that the Claimant had sneaked out of the compound and disappeared, alongside the storekeeper who had purported to have received the consignment, who could not even be reached on his mobile phone. It was later determined that the Claimant has driven the Respondent’s truck to the National Cement Company’s site as instructed, but without the bags of cement. 11.The Respondent states that as a result of the Claimant’s actions, it suffered losses as the National Cement Company debited the Respondent's account for the loss of the 600 bags of cement that were never delivered. The Respondent confirms that it reported the matter to Oloitoktok Police Station under OB NO. 20/03/04/2017 and Police Case No. 738/32/2017. Following the incident, the Claimant failed to report back to work. 12.The Respondent states that it wrote to the Claimant a letter dated 11th May 2017, which was copied to the County Labour Officer in Industrial Area, demanding an explanation over the loss of the consignment. The Claimant did not respond, leading to the conclusion that he stole the consignment, and he was arrested and charged in court for stealing the same. The Respondent is categorical that the Claimant’s prosecution in court for stealing came after police investigations were concluded in accordance with the due process of the law. They therefore deny the allegations that they instituted malicious criminal charges against the Claimant. 13.The Respondent also denied terminating the Claimant's employment, and states that it is the Claimant who voluntarily deserted work after the consignment was lost under his care. In any event, the Claimant having been charged with the criminal offence of stealing, the Respondent would have been justified in terminating his employment under Section 44 (4) (g) of the Employment Act had he reported back to work, which he never did. Determination 14.Issues for determinationA.Whether the employment of the claimant was unfairly terminatedB.Whether the claimant is entitled to relief sought. 15.The court issued directions for submissions and complied. Whether the employment of the claimant was unfairly terminated 16.The claimant submitted that Section 43 of the Employment Act places the burden on the employer to prove the reason for termination, while section 45 requires that the reason be valid, fair, and related to the employee's conduct. The Court of Appeal in Kenfreight (E.A.) Limited v Benson K. Nguti [2016] eKLR held that an employer must prove the reasons for termination and that mere suspicion or unsubstantiated allegations do not meet the statutory threshold. In the present case, the Respondent failed to establish any factual nexus between the Claimant and the alleged loss. No inventory, audit report, weighbridge verification, or chain-of-custody evidence was produced. The HR Officer admitted that the truck was not sealed, that the tarpaulin was opened by site labourers, and that the counting and off-loading were supervised by third parties who never complained of any shortage. As held by the Court of Appeal in National Bank of Kenya v Samuel Nguru Mutonya [2019] eKLR, termination founded on conjecture or assumption is unfair. 11.The Respondent's own conduct further negates the allegation of theft. After delivery, the Claimant returned to the Respondent's premises to demand his unpaid salary and dues. It was only after making this demand that he was arrested following a complaint by the Respondent. The Claimant submits that a person who had stolen a valuable consignment would not voluntarily return to his employer to demand unpaid wages. This conduct is wholly inconsistent with guilt and strongly corroborates the Claimant's innocence. The claimant contended there was abuse of criminal process and collapse of prosecution -The Respondent reported the matter to the Directorate of Criminal Investigations after receiving a debit note from National Cement, without first concluding any internal investigation. The HR Officer admitted that no representative of the Respondent attended court to support the prosecution. The criminal case, MCCR No. 262 of 2017 Republic -v- Amos Ngwili Muli, was ultimately terminated under section 202 of the Criminal Procedure Code due to non-attendance of witnesses. 13.While criminal proceedings and disciplinary processes are distinct, the Court of Appeal in Judicial Service Commission v Gladys Boss Shollei [2014] eKLR affirmed that an employer must independently establish misconduct through a fair process. The Respondent herein did neither. Instead, it sought to use the criminal process as a substitute for evidence and due process, which the law does not permit. The claimant further submitted that there was no procedural fairness. The Respondent admitted that the Claimant was not issued with a show-cause letter, was not invited to a disciplinary hearing, and that no minutes or records of any disciplinary proceedings exist. This is an admitted violation of section 41 of the Employment Act. The Court of Appeal in Postal Corporation of Kenya v Andrew K. Tanui [2019] eKLR held that compliance with section 41 is mandatory and that termination without a hearing is ipso facto unfair. 15.The denial of a hearing in this case was not inadvertent. The Respondent had already decided to blame the Claimant for a commercial loss and proceeded directly to dismissal and criminal complaint. Such conduct offends statute and the principles of natural justice. 17.Conversely, the respondent submitted that -that this whole claim is premised on the assertion by the Claimant that his employment was unfairly terminated. 19. We further contend that on this, it is the Claimant's burden, the employee, to prove that point. as 20. With respect to the foregoing, reliance is placed on Section 47(5) of the Employment Act (2007) which stipulates as follows:- "For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal occurred shall has rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer." [Emphasis Ours) The foregoing proposition finds support in the case of Josephine M. Ndungu & others v Plan International Inc [2019] eKLR, where the Court stated the following:- "Under section 47(5) of the Employment Act, the burden of proving unfair termination lies with the employee. The said burden is discharged once he establishes a prima facie case that, the termination did not fall within the four corners of the legal threshold set out by section 45 of the Act." 22. Your Honour, we respectfully contend that the Claimant has yet substantiate that a termination of employment was unfair. 23. to Firstly, the Claimant has stated that he went back to the Respondent's premises to demand his dues yet he failed to provide any evidence to show that he actually went back to the Respondent's premises. It is the Respondent's evidence through its Human Resource Manager that the Respondent wrote a letter to the Claimant dated 11th May 2017 as the Claimant was unreachable since 30th March 2017. 24. Your Honour, we submit that the Claimant deserted work and had the Claimant reported to work, the Respondent would have terminated his Act. employment as per the procedure outlined in the Employment 25. Furthermore, the Claimant has not provided any evidence to support his claim of dismissal. 26. Specifically, Your Honour, the Claimant did not present a termination letter from the Respondent, nor did he submit any call logs or other evidence indicating the time frame of the alleged termination or identifying the individual responsible for it. 5| Page 27. Your Honour, in the case of Ali Omar Mwanyuni v Kwale International Sugar Company Ltd [2020] eKLR, the Court, while determining a similar situation, stated thus:- "19. Under Section 47(5) of the Employment Act, an employee alleging unfair termination or wrongful dismissal bears the burden of proving their allegations. In its decision in Bakari Abdalla Mwangazi v Kwale International Sugar Company Limited [2020] eKLR, this Court held that an employee who prevaricates on the date of termination of employment cannot be said to have discharged the evidential burden placed by Section 47(5). 20. From the Claimant's contradictory testimony, the Court could not tell the date of termination and therefore accrual of the cause of action. Consequently, the claim for unfair termination cannot stand. The claims for compensation and notice pay are therefore rejected." [Emphasis Ours] 28. Your Honour, in view of the foregoing authority, it is our humble submission that the Claimant’s claim is inherently defective as he has failed to discharge his burden of proving when or if at all a termination of his employment contract occurred. 29 Accordingly, we respectfully invite this Honourable Court to find that Mr. Muli's claim for unfair termination as well as the associated claims for compensation are legally untenable. Decision on issue no. 1 18.The threshold for determination of fairness of termination of employment is according to the provisions of section 45 (2) of the Employment Act to wit:- ‘45(2) A termination of employment by an employer is unfair if the employer fails to prove—(a)that the reason for the termination is valid(b)that the reason for the termination is a fair reason—(i)related to the employees conduct, capacity or compatibility; or(ii)based on the operational requirements of the employer; and(c)that the employment was terminated in accordance with fair procedure.’’ To pass the fairness test the termination must pass the substantive (in terms of reasons) fairness and the procedural fairness under section 41 of the Employment Act (Walter Ogal Anuro v Teachers Service Commission [2013] eKLR). 19.The Claimant, during cross-examination, told the trial court that on 27th March 2017, he had a consignment to deliver 600 bags of cement. That he delivered and had a delivery note. That he thereafter reported to the Respondent. The claimant admitted he was charged with theft and was acquitted. He said the goods were received and a delivery note signed. Conversely, the witness for the Respondent, Baruka Odera, at cross-examination told the court he was not present during the delivery. The Claimant was transporting cement from Lukenya to Loitokotok. He had not told the supervisor he was unwell. He did not report he had delivered the cement. The witness told the court the official delivery note had 3 stamps showing cement was received in full. The witness testified the delivery note was false. That it was covered with Taplin. That kind of cargo could not be sealed. He said it was normal to cover cement with tarpaulin. That upon delivery the store official received cargo. The employees of the company opened the cargo. The witness was not present, but the weight of the material is taken upon delivery and when leaving. 20.The Respondent’s witness told the court as follows during cross-examination as per the proceedings - the storekeeper confirmed the cargo was fine and had supervised the delivery. Upon delivery, store official received the cargo. Employees of the company opened the cargo. I was not there but weight of material is taken upon who and when leaving. Storekeeper confirmed cargo was fine and that he supervised the delivery. Pindoria holding, was the company contacted by National Cement to carry out construction at the site. National Cement was custodian of cement. Their arrangement with Fidolia was secondary to us. Counting was not done openly. Fidolia and storekeeper indicated all stocks were received. There was no report stating there was a shortage during offloading. We dealt with National Cement. At the time of delivery no complaint was raised. There is no document to that effect. It was a discovery that the vehicle had not delivered that led to investigations. National Cement wrote stating that they would debit the respondent. This was the discovery of the company due day later. I went to the site to confirm the delivery and we found a lot of irregularities. We noticed movement of motor vehicle through GPS. I contacted the storekeeper. It is in my statement. I was in the company of police officers. The storekeeper initially accepted. He later disappeared. Motor vehicle entered the site when it was empty. The stamping was falsely done. There was no evidence that the cement was delivered. I checked all stores and there was no cement. I made a report to the police. They have it. It is not before court. The same charge sheet is before the court. The truck was supposed to have gone over the weigh bridge at the time of entry and exit, but that did not happen. It is 600 bags by 50 kgs. GPS showed lorry did not deliver. The claimant went missing after that. He abandoned the truck. It is a large yard. Trucks have a waiting area for clearance. Guards saw a truck coming in, and it was empty. The claimant's phone was not getting through. We don't have lops. He was missing. The storekeeper went viewing at 4 a.m. Efforts were made to trace him, but he was not found. We reported even before getting a debit note, delivery note was stamped before the truck reached the site. We were called several times by the investigation officer, but the case did not go to trial. It is not true, no witnesses were available. We even wrote to complain why matter was not proceeding despite our efforts to provide evidence. We have subsequently the lorry. The police did not do its work. The client deserted employment. We wrote to him to report to the office. It was sent to his location known address. That is the address he gave us. We copied both to Labour office and police. We wanted the client to explain the theft. The client was not paid a salary for the month. Client was not acquitted. We received a letter of demand. We wrote to DCI to ask why he was released. DCI did not reply to our letters. Cement and the claimant disappeared. The claimant was not acquitted. There are no proceedings. We were doing an inquiry. The culpits disappeared. National Cement caused loss to the respondent. He did not deliver and he disappeared. We got no response to DCI. We need answers. 21.During re-examination, the respondent’s witness told the court that wages for the Month of March were paid via the bank account. Guards saw claimant abandon truck and leave. GPS tracked the claimant. That is what raised our attention. Fredula said he was duped to sign a document without verifying its motor vehicle had delivered. Documents were falsely signed before the motor vehicle reached Simba Cement. We wrote to the court that we were not notified of any program of the case. The silence way not in our favour. Investigation officers were not cooperative. Claimant was not acquitted. We do not have information on proceedings. 22.The claimant alleges there was no valid reason for termination as he delivered the cargo and got a delivery note from a third party (Pindoria holding), which was received on behalf of Simba cement, the respondent’s client, and indeed, before the court was a delivery note for receipt of the cement. 23.The reason given by the employer must be founded on valid reasons as per section 43 of the Employment Act. The employer to justify its doubt on the delivery relied on the fact that the Claimant abandoned the lorry at the yard of the place of delivery and could not be reached. The Claimant told the court he lost his phone. The court doubted that the claimant lost his phone and that this was the reason he disappeared, because the circumstances of the loss were not explained. Why did the claimant abandon the truck assigned to him unless he was running away?. They Respondent further produced a demand for the lost cargo of 600 bags of cement. While the third party can be blamed for issuing a delivery receipt through the store clerk, the claimant's unreachability and abandonment of the track justified the employer's belief that he was involved in the theft of the cement. 24.The Claimant claimed he was sick to justify the stop overs while on the road but no medical evidence was placed before the court. The law is that reasonable suspicion of involvement in theft of employer property is gross misconduct (section 44(4) (g)-‘g)an employee commits, or on reasonable and sufficient grounds is suspected of having committed, a criminal offence against or to the substantial detriment of his employer or his employer's property.’ The applicable test is that of a reasonable employer in British Leyland UK Ltd v Swift [1981] IRLR 91. The tribunal in the decision appealed against said:… a reasonable employer would, in our opinion, have considered that a lesser penalty was appropriate'. Lord Denning MRheld that the decision was perverse and would be reversed. The Judge observed- ‘I do not think that that is the right test. The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view. However, Lord Denning MR said the Tribunal did not take into account the fact that Swift did not come clean when he was found out, and he lied about what he had done. A reasonable employer could have dismissed him.’’ The court finds a reasonable employer having found that the cargo was not delivered as required, the truck was abandoned by the employee, and the employee became ‘mteja’ (unavailable) thereafter would have reasonably believed the claimant stole the cargo and terminated his services. Therefore, the employer had basis to believe the Claimant had stolen the cargo. The failure of the criminal case did not affect the claimant's culpability. The Claimant said he was acquitted but no judgment was produced. The court believed the position of the Respondent the criminal case collapsed. In any case, criminal prosecution does not bar internal processes by the employer. The court finds the reason for the termination met the standard in section 43 of the Employment Act. “(1) In any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45. (2) The reason or reasons for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist, and which caused the employer to terminate the services of the employee.” The reason was related to the misconduct of the claimant which led to loss of the cargo, property of the employer. The conduct of the claimant justified the suspicion by the employer of his involvement in the theft/loss of the cement. Whether there was procedural fairness 25.The law is even in the context of summary dismissal under section 44 of the Employment Act , the employer must still comply with procedural fairness as per section 41(2) of the Employment Act to wit- ‘Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1) make.’ The Claimant said he was not heard. The Claimant did not file a reply to the counteraccusation of abandonment of the truck and work following the alleged delivery and the alleged unavailability. At cross-examination, he said he lost his phone. There was no evidence by the claimant that he ever returned to work. At cross-examination, the witness for the respondent confirmed the claimant never returned. The witness told the court they wrote to him at the given address and copied the labour officer. The court noted the content of letter dated 11th May 2017 addressed to postal address at Ikutha of the claimant and indicating he could not be reached. The letter was received on 19th May 2017 by the labour office. The same post of the Box 35 Ikutha appears in witness statement of the claimant. 26.I find the respondent complied with section 41 of the Employment Act. Indeed, it is only vide letter of 7th July 2017 that the claimant wrote to the Respondent claiming salary for March 2017 only. This is evidence to prove he was away from work as stated in letter to the labour officer. The court holds that the termination was lawful and fair in the circumstances. Whether the Claimant is entitled to relief sought 27.The court finds the following decision that the termination was lawful and fair; the only relief for determination is terminal dues. 28.Unpaid salary – The issue was not addressed in response. The letter copied to labour officer did not enclose the earned salary of March. The respondent’s witness at cross-examination told the court the claimant was not paid salary for the month. The claim is for unpaid salary for Kshs.24,645/-. The claimant produced his payslip (unchallenged) (February 2017) which indicate basic salary of kshs.24,750 and house allowance of 3,713. The claimant sought for the net salary. I allow the claim for net salary as sought and order for the salary award not to be subjected to any statutory deductions. 29.The claim for leave was not challenged and is allowed as prayed. 30.The claim for service pay fails as the claimant was on NSSF (section 35(6) of the Employment Act). 31.The claim for Notice pay is disallowed, the court having found the reason for termination was theft and absconding, thus gross misconduct, which attracts summary dismissal, thus no award of notice pay. 32.In the upshot, the termination is held as lawful and fair. The court entered judgment for the claimant against the Respondent as follows:-1.Unpaid salary (net) kshs.24,645/.2.Untaken leave kshs.17,279/-.3.Interest at the court rate from the judgment date.4.Costs of the suit.5.Certificate of service to issue within 15 days through the Claimant’s Advocates. 33.It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 22ND MAY, 2026.JEMIMAH KELI,JUDGE.In The Presence Of:Court Assistant: OtienoRespondent: MbesaApplicant: Ms. Ondari