https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1495

# **IN THE COURT OF APPEAL AT ELDORET** **(CORAM: GACHOKA, KORIR & NDOLO, JJ.A.) CIVIL APPEAL NO E235 OF 2021** **BETWEEN** **RIFT VALLEY BOTTLERS LIMITED APPELLANT** **AND** **MARTIN THUO RESPONDENT** *(Appeal from the judgement of the Employment and Labour Relations Court at Eldoret (Abuodha, J.) delivered on 4th August 2020* ***in*** ***ELRC Cause No 36 of 2018)*** ***\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\**** # **JUDGMENT OF THE COURT** 1. The respondent, **Martin Thuo,** was a long serving employee of the appellant, Rift Valley Bottlers Limited, having been employed on 3rd January 1995. The respondent was first deployed as an operative in the production department where he worked until 8th June 2015, when he was appointed to the position of line attendant in the same department. 2. The respondent’s employment with the appellant ended on 2nd March 2017, when he was summarily dismissed. The dismissal was triggered by an incident on 24th February 2017 in which 60 excess crates of sprite soda were loaded onto truck registration number KCB 600S under the respondent’s watch. On the date of the incident, the respondent had been deployed to assist with stocktaking within the operations department. The truck was intercepted before leaving the appellant’s premises. 1. Following this incident, the respondent was issued with a show cause letter dated 25th February 2017 to which he responded, explaining that the excess crates of soda had been loaded by mistake and that the consignment had not left the premises. The respondent was subsequently subjected to a disciplinary hearing on 27th February 2017 and on 2nd March 2017, he was summarily dismissed. 2. Following his dismissal, the respondent moved to the Employment and Labour Relations Court (ELRC) claiming that he had been wrongfully dismissed. The ELRC found that the respondent had committed some administrative offence but that the decision to summarily dismiss him was disproportionate to the offence. The trial court therefore set aside the summary dismissal and awarded the respondent 10 months’ salary in compensation for unlawful termination of employment plus one month’s salary in lieu of notice and costs of the suit. 3. In its judgment dated 4th August 2020, the trial court determined that the summary dismissal was not proportionate to the offence committed by the respondent, holding that a warning would have sufficed. In reaching this decision, the court observed that there was no imputation of theft or fraud against the respondent and that the excess crates of soda had not left the appellant’s premises, as the appellant had put in place safety measures to ensure that goods leaving the premises were duly invoiced. 1. The appellant was aggrieved by the decision of the trial court, hence this appeal. In its memorandum of appeal dated 19th November 2021, the appellant states that it had a valid reason for summarily dismissing the respondent. The appellant also took issue with the award made by the trial court, terming it excessive. The respondent on its part, filed a cross appeal, faulting the trial court for failing to award him damages for unfair labour practices. 2. The appeal came up for hearing before us, on 26th May 2026. Learned counsel Mr. Nyamurongi appeared for the appellant while learned counsel Mr. Wambua appeared for the respondent. Mr. Wambua applied to withdraw the cross appeal and there being no objection by the appellant, the cross appeal was marked as withdrawn. The parties relied on their written submissions, which they briefly highlighted. 3. This being a first appeal, we are guided by the pronouncements of this Court on the duty of a first appellate court, which is to re-analyse and re-evaluate the evidence on record so as to arrive at its own conclusions, while making allowance for the fact that it did not have an opportunity to see and hear the witnesses. *(See* ***Barclays Bank of Kenya Limited vs Banking Insurance*** ***and Finance Union [2026[ KECA 851 KLR*** and ***Abok James Odera v John Patrick Machira [2013] eKLR****).* 1. We have carefully considered the record of appeal and the submissions. The background to the dispute is not in contest. It is common ground that 60 extra crates of soda had been loaded on the delivery truck. Following discovery of the extra crates, the respondent was issued with a show cause letter dated 25th February 2017, stating as follows: *“Dear Martin* ***RE: SHOW CAUSE: EXTRA LOADING OF SIXTY CRATES OF SPRITE*** *On 24th February 2017 at around 11.00 am, while discharging your daily routine duties, it was discovered that an excess of 60 crates of sprite have (sic) been loaded into KCB 600S. The quantity and the brand of the product were not on the invoice, neither on the picking list. The circumstances which lead (sic) to the errors are not understood clearly to (sic) the Management and deserve elaborate explanations.* *You are therefore required to show cause why disciplinary action should not be taken against you for extra loading of products onto a truck which is against company policy.* *Your response should reach the undersigned within 6 hours from the date of receipt of this letter, failure to which Management will proceed to take action deemed appropriate without further reference to you.* *Yours faithfully,* *For Rift Valley Bottlers Ltd. (signed)* *George Aboki Loading Supervisor”* 1. In his response of the same date, the respondent admitted that indeed there had been an extra 60 crates of sprite soda, loaded onto the delivery truck, without proper documentation, in the form of an invoice or a picking list. In his handwritten response, the respondent stated that ***“the extra pallet was loaded by mistake.”*** The respondent reiterated this admission at the disciplinary hearing held on 27th February 2017, where on being asked; ***“Are the accusations levelled against you in the show cause letter true or false?”*** the respondent responded, ***“Yes it’s true that the truck was loaded excess.”*** 2. We note from the record and it is not disputed by the respondent, that he was issued with a show cause letter, to which he duly responded. He also attended a disciplinary hearing and, after consideration of the accusations levelled against him, together with his response, he was summarily dismissed. It is noteworthy that, while admitting that he had made a mistake, the respondent pleaded before the trial court that there was no evidence of fraud and no loss was occasioned to the appellant since the excess crates of soda were intercepted before they could leave the premises. 3. The respondent therefore took the view that the disciplinary action taken against him by the appellant was harsh and excessive in the circumstances. The learned trial Judge agreed with the respondent, stating that a warning would have been an appropriate disciplinary action. In the judgment dated 4th August 2020, the learned trial Judge stated thus: ***“In the court’s view…the dismissal was disproportionate to the offence committed. The same could have been dealt with by a warning letter and not summary dismissal. To this extent the court returns a finding that the termination was unfair.”*** 1. It was submitted on behalf of the appellant that the trial court fell into error by making a finding that the dismissal was wrongful, and that a warning should have been issued instead. The question then is whether the trial court could lawfully substitute the employer’s disciplinary sanction with its own. 2. It is on solid ground that disciplinary control at the work place is the employer’s prerogative and courts will only interfere where the employer’s action is the result of an unlawful process. *(See* ***Chege vs Timsales Limited [2025] KECA 1660 (KLR)****).* 3. It follows therefore that when courts sit to adjudicate on claims of unlawful or unfair termination of employment, they are not to take over the employer’s mandate. In other words, courts are not to ask what action they would have taken if they were in the employer’s place; rather, they are to ask whether the action taken by the employer against the employee is one that a reasonable employer would have taken. This is what is commonly known as the ***‘reasonable responses test’*** which was enunciated by **Lord Denning** in the well-known case of ***British Leyland vs Swift (1981) IRLR 91*** as follows: ***“The correct test is; was it reasonable for the*** ***employer to dismiss him? If no reasonable*** ***employer would have dismissed him, the dismissal was unfair, but if a reasonable employer might reasonably have dismissed him, the dismissal was fair. It must be remembered in all these cases that there is a band of reasonableness, within which an employer might reasonably take one view; another quite reasonably takes a different view. One would quite reasonably dismiss the man. The other quite reasonably keeps him on. Both views may be quite reasonable. If it was reasonable to dismiss him, then the dismissal must be upheld as fair even though some other employer may not have dismissed him.”*** 1. The employer’s prerogative, in exercising disciplinary control, is essential for industrial harmony and judges must therefore cede their views to those of the reasonable employer at the shop floor. The reasons for this are obvious; one, judges will have different views on what is an appropriate sanction and secondly and perhaps more significant, once a judge determines that an employer issued the wrong sanction, they lack the tools to substitute that sanction. 2. In a claim for unlawful or unfair termination of employment, the Judge has only two options; either confirm the employer’s action or adjudge it as unlawful; there is no room for substitution of sanctions. This would explain why in this case, the trial Judge on the one hand found that the respondent had committed an administrative offence, but went ahead to award him compensatory damages for unlawful termination of employment. By doing so, the learned Judge fell into error and the award made in favour of the respondent cannot be supported under ***section 49*** of the Employment Act, which provides for remedies for wrongful dismissal and unfair termination. 1. For the foregoing reasons, this appeal succeeds, the judgment and decree of the ELRC dated 4th August 2020 and all consequential orders are set aside and are replaced with an order allowing the appeal with costs to the appellant. **Dated and delivered at Eldoret this 24th day of July, 2026.** **M. GACHOKA C.Arb, FCIArb** **…………………….………………..** **JUDGE OF APPEAL** **W. KORIR** **…………………….……………….** **JUDGE OF APPEAL** **L.M. NDOLO** **…………………….……………....** **JUDGE OF APPEAL** *I certify that this is a true copy of the original.* ***DEPUTY REGISTRAR.***