Roben Aberdare (K) Limited v Kingori (Employment and Labour Relations Appeal E056 of 2025) [2026] KEELRC 1329 (KLR) (15 May 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NYERI** **ELRC APPEAL NO. E056 OF 2025** **BETWEEN** **ROBEN ABERDARE (K) LIMITED...............................................APPELLANT** **AND** **JOHN KARIUKI KINGORI.........................................................RESPONDENT** *(Being an appeal from the Judgment of Hon. Mary Gituma Senior Resident Magistrate in Nyeri CMELR Cause No. E100 of 2023 delivered on 26th November 2025)* **JUDGMENT** 1. The Respondent commenced proceedings against the Appellant before the Chief Magistrate’s Court at Nyeri in *CMELR Cause No. E100 of 2023, John Kariuki Kingori v Roben Aberdare (K) Limited.* In his Amended Memorandum of Claim, the Respondent averred that he was initially engaged by the Appellant as a commercial lorry driver in 2012 under an oral contract until July 2013, when his employment was terminated without a valid reason. He further averred that he was subsequently rehired in October 2020. 2. At the trial court, the Respondent maintained that upon re-employment, he resumed duty as a commercial lorry driver and served at the Appellant’s construction sites from October 2020 until 9th October 2023, when his employment was allegedly terminated unlawfully and without a valid reason. 3. The Respondent further contended that he earned a monthly salary of Kshs 20,000/-, which fell below the statutory minimum prescribed under the Regulation of Wages (General) Amendment Order. 4. He further asserted that the Appellant failed to settle his terminal dues, including salary for September 2023, accrued but untaken annual leave, and remuneration for work performed on public holidays and rest days. 5. Arising from the foregoing, the Respondent sought the sum of **Kshs 1,158,903.75,** comprising maximum compensation for unfair termination, one (1) month’s salary in lieu of notice, underpayments from 1st October 2020 to 9th October 2023, unremitted NHIF and NSSF contributions, and payment for accrued leave, public holidays, and rest days worked. He further prayed for costs, interest, and issuance of a certificate of service. 6. The Appellant opposed the claim through an Amended Statement of Response and Counterclaim dated 19th February 2023. The Appellant asserted that the Respondent was employed on 15th October 2020 as a driver. 7. The Appellant further averred that its fuel monitoring system revealed that in September 2023, the Respondent had been siphoning fuel from his assigned vehicle, amounting to 244.34 litres valued at Kshs 49,478/- at a pump price of Kshs 202.5 per litre. 8. It was the Appellant’s further contention that the Respondent was issued with a Notice to Show Cause, which he failed to respond to and instead absconded duty, thereby failing to exonerate himself, culminating in his summary dismissal on 18th October 2023. On that basis, the Appellant maintained that the Respondent’s conduct constituted gross misconduct warranting summary dismissal without notice for any cause recognized by law. 9. The Appellant further stated that the Respondent earned a consolidated gross salary of Kshs 22,000/-, inclusive of house allowance. 10. It was the Appellant’s position that the Respondent was not entitled to the reliefs sought, contending further that the claims were time-barred in view of Section 90 of the Employment Act as they related to continuing injuries. To this end, the Appellant urged the Court to dismiss the claim. 11. In its Counterclaim, the Appellant reiterated that the Respondent’s gross misconduct led to his lawful summary dismissal and occasioned loss to the Appellant. Accordingly, it sought a declaration that the termination was lawful and fair, together with a sum of **Kshs 49,478/-** being the value of lost fuel. 12. At the trial, both parties adduced oral evidence and were subjected to cross-examination. The Respondent testified in support of his case, while the Appellant called its General Manager, **Ambrose Kinyua,** as its witness. Upon close of the hearing, the parties filed written submissions, after which the trial court proceeded to analyse the evidence on record. 13. In its judgment, the trial court found in favour of the Respondent, holding that his termination was unfair. In allowing the claim, the trial Court observed that the Appellant had not demonstrated efforts to trace the Respondent, issue a notice of intended termination, or accord him an opportunity to respond to allegations of absconding duty. The trial Court further found that there was no evidence that the Respondent had been informed of his right to be accompanied by a fellow employee or union representative during the disciplinary hearing, nor that the outcome of the process had been communicated to him. Consequently, the trial Court concluded that proper procedure was not followed before terminating the Respondent’s employment. 14. In the final analysis, the trial court declared the termination of the Respondent’s employment unfair, and awarded him Kshs 181,600.80 as compensation for unfair termination, one (1) month’s salary in lieu of notice, and salary underpayments. The Respondent was further awarded interest at court rates, costs of the suit and counterclaim, and directed the Appellant to remit the Respondent’s NSSF and NHIF contributions for five (5) months. 15. In addition to the foregoing, the trial Court dismissed the Counterclaim on the basis that the Appellant did not provide evidence to substantiate its claim **The Appeal** 1. The Appellant was aggrieved by the findings and orders of the trial Court and, to this end, lodged the present appeal on the basis of seven (7) grounds as set out in the Memorandum of Appeal dated 11th November 2025: 2. **THAT the learned Trial Magistrate erred in law and fact by applying the wrong principles of law and thus erroneously dismissing and/or disregarding the Appellant's prayers as contained in the Amended Statement of Response thereby occasioning a gross miscarriage of justice.** 3. **THAT the learned Trial Magistrate erred in law and fact by applying the wrong principles of law by failing to make a finding that the reason for termination was valid thus the Respondent was fairly and lawfully terminated from his employment, and therefore the award for compensation for unfair termination was unfounded, thereby occasioning a miscarriage of justice.** 4. **THAT the learned Trial Magistrate erred in law and fact by applying the wrong principles of law by failing to make a finding that the terms of employment were agreed upon and therefore the award for underpayment was unfounded, thereby occasioning a miscarriage of justice.** 5. **THAT the learned Trial Magistrate erred in law and fact by applying the wrong principles of law by not subjecting the award to statutory deductions thereby occasioning a miscarriage of justice.** 6. **THAT the learned Trial Magistrate erred in law and fact by taking into account extraneous and irrelevant considerations thus arriving at erroneous findings in the Judgment, thereby occasioning a miscarriage of justice.** 7. **THAT the learned Trial Magistrate failed to address her mind to the pleadings on record and the evidence by the parties, thereby occasioning a miscarriage of justice.** 8. **THAT the learned Trial Magistrate erred in law and fact in failing to evaluate the entire evidence as well as submissions thereby occasioning as presented by the Appellant, a miscarriage of justice.** 9. Accordingly, the Appellant seeks the following orders from this Court: 10. **This Appeal be allowed in its entirety.** 11. **The said judgment of the Learned Trial Magistrate Honourable Mary Gituma, Senior Resident Magistrate in Nyeri Chief Magistrate Employment and Labour Relations Cause No. E100 of 2023, delivered on 26th November, 2025, be varied and/or set aside and substitute the same with an order dismissing the Respondent’s Claim and allowing the Appellant's counter-claim with costs.** 12. **The Appellant be awarded costs of this Appeal.** 13. **This Honourable Court grants any other or further relief it deems fit or just** **The Submissions** 1. The appeal was disposed of by way of written submissions. On its part, the Appellant submitted that it had adduced sufficient evidence to demonstrate that the Respondent was siphoning fuel from the company vehicle. It contended that the trial magistrate disregarded this evidence, thereby occasioning a miscarriage of justice. On this score, the Appellant maintained that it had discharged its burden of proof in accordance with **Sections 107, 108, and 109 of the Evidence Act.** 2. The Appellant further argued that, in the absence of any evidence by the Respondent to rebut the claim regarding fuel siphoning, its case was proved on a balance of probabilities. The Appellant faulted the trial magistrate for failing to give due consideration to this aspect and in support of its position, it relied on the case of ***Ferdinand Ndung’u Waititu v Independent Electoral & Boundaries Commission (IEBC) & 8 others [2014]***. 3. The Appellant further submitted that the Respondent’s termination was lawful and effected in compliance with due process, contrary to the finding of the trial magistrate that it was unfair. 4. It was further contended that the Appellant provided adequate evidence to demonstrate that the Respondent was subjected to a fair and proper disciplinary process prior to his summary dismissal. 5. The Appellant maintained that it had sufficiently established valid and lawful grounds to justify the Respondent’s summary dismissal. The Appellant reiterated that the Respondent’s conduct amounted to gross misconduct and that, upon establishing the same, he was accorded an opportunity to be heard, which he failed to utilise, ultimately leading to his dismissal. 6. The Appellant further posited that the Respondent’s remuneration was consistent with the terms mutually agreed upon by the parties, thereby constituting a binding contract. It argued that the trial court erred in failing to uphold these agreed terms, effectively allowing the Respondent to resile from the contract and unjustifiably rewriting the contract between the parties. 7. On the other hand, the Respondent submitted that the trial court applied the proper principles of law and evaluated all the evidence and pleadings filed by both parties. In this regard, the Respondent posited that the trial court did not consider any extraneous or irrelevant considerations in arriving at its finding that his termination was unfair and lawful. In support of its submissions, the Respondent relied on the cases of ***Corrugated Sheets Limited v Ngao (2025) KEELRC 2322 (KLR), Moi Teaching and Referral Hospital vs James Kipkonga Kendagor 2019 KECА 833 (KLR)*** and ***Julius Kyalo Malonza vs Ruth Osolo T/A Eraeva Cataring Services (2021) eKLR.*** 8. The Respondent further submitted that the trial court correctly exercised its discretion in awarding him six (6) months' salary in compensation for unfair termination in addition to one month's salary in lieu of notice and underpayment. To buttress this position, the Respondent referenced the cases of ***Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] KECA 394 (KLR)*** and ***Mbogo & Another -v- Shah [1968] EA 93.*** **Analysis** **and Determination** 1. This being the first appellate Court, it is duty-bound to re-evaluate and re-analyse the evidence presented before the trial court, together with the impugned judgment, and to arrive at its own independent determination on the merits of the appeal. In so doing, the Court is entitled to subject the entire record to a fresh and exhaustive scrutiny and draw its own conclusions, while bearing in mind that it did not have the benefit of seeing or hearing the witnesses testify. This principle was affirmed in ***Selle & another v Associated Motor Boat Co. Ltd. & others (1968) EA 123.*** 2. Having considered the entire Record of Appeal, the rival submissions, and the applicable law, the Court has isolated the following issues for determination: - 3. ***Whether the trial court erred in finding that the termination of the Respondent’s employment was unfair;*** 4. ***Whether the remedies awarded by the trial court lie in law; and*** 5. ***Whether the trial court erred in finding that the Appellant had failed to prove its counterclaim.*** **Whether the trial court erred in finding that the termination of the Respondent's employment was unfair** 1. The Appellant has faulted the trial Court for failing to find that the Respondent’s termination was valid, and that he was fairly and lawfully terminated from employment. 2. In determining this question, the trial court held that the Respondent was unfairly terminated from employment. 3. Under **Sections 43, 45, and 41 of the Employment Act**, an employer bears the burden of demonstrating both substantive justification for termination and adherence to procedural fairness. This constitutes the legal threshold for determining whether a termination is fair. 4. On substantive justification, **Sections 43 and 45(2)(a) and (b) of the Employment Act** require an employer to prove the reasons for termination, which must be valid, fair, and related to the employee’s conduct, capacity, compatibility, or its operational requirements. 5. In the present case, the record bears that the Respondent’s termination was premised on allegations of gross misconduct. The termination letter indicated that the Respondent had been absent from his workstation from 2nd October 2023 without authorization. It is also notable that in the letter of termination, the Appellant cited **Section 44(a) and (g) of the Employment Act**. However, the Appellant did not particularise or contextualise the reasons underlying the termination and its reference to the aforementioned statutory provisions. 6. It is also noteworthy that in a letter dated 30th October 2023, to the County Labour Office at Nyeri, the Appellant attributed the Respondent’s dismissal to absconding duty. 7. It is also notable that in his witness statement, which he adopted to constitute his evidence in chief, **Ambrose Kinyua** (DW1), the Appellant’s witness at the trial court, stated that the Respondent would be issued with a certificate of service reflecting his termination for gross misconduct on account of absence without leave. 8. Further, during cross-examination, the said witness confirmed that the Respondent was summarily dismissed for being absent from his place of work. 9. What can be drawn from the foregoing is that it is apparent that the primary basis for the Respondent’s termination from employment was abscondment of duty rather than the alleged siphoning of fuel. 10. **Section 44(4)(a) of the Employment Act** permits an employer to summarily dismiss an employee who absents himself from work without leave or lawful cause. 11. Accordingly, having alleged that the Respondent absconded duty from 2nd October 2023, the Appellant was required to adduce evidence to substantiate that allegation. Regrettably, this was not the case as the Appellant did not lead evidence in whatever form or manner to demonstrate the Respondent’s abscondment of duty as alleged. For instance, no documentary or other evidence, such as attendance registers or muster rolls, was produced to demonstrate the Respondent’s absence from work on 2nd October 2023 or any other occasion. 12. In the circumstances, it becomes evident that the Appellant did not establish a valid and fair reason for terminating the Respondent’s employment on account of absence from duty. 13. Accordingly, the Appellant failed to discharge its evidential burden under **Sections 43(1) and 45(2)(a) and (b) of the Employment Act**, rendering the termination substantively unfair. 14. With respect to procedural fairness, **Section 45(2)(c) of the Employment Act** requires that termination of employment be effected in accordance with fair procedure. In this regard, **Section 41** outlines the requirements of a fair hearing, which include informing the employee of the grounds upon which termination is contemplated and affording them an opportunity to respond to those allegations in the presence of a fellow employee or a union representative of their choice. 15. In the instant case, the Appellant asserted that it issued the Respondent with a Notice to Show Cause, to which he did not respond before allegedly absconding duty. 16. Despite the Appellant’s assertions, the record does not contain the alleged Notice to Show Cause. Indeed, there is no evidence that the Respondent was formally notified that termination was contemplated on account of absconding duty. 17. At the trial Court, the Appellant exhibited an invitation to a disciplinary hearing dated 12th September 2022. Notably, the said summons were in respect of the allegations of fuel siphoning as opposed to abscondment of duty. Further to this, the summons predate the period when the Respondent allegedly absconded duty. As such, the summons did not address the grounds ultimately relied upon for the termination of the Respondent’s employment. 18. Therefore, in the event the Respondent had indeed absconded duty, the Appellant was enjoined to accord him a fair hearing and subject him to the process contemplated under **Section 41 of the Employment Act**. 19. On the whole, the Court is satisfied that the Appellant failed to comply with the procedural requirements prescribed under Section 41 prior to terminating the Respondent’s employment. 20. In the premises, there is no basis to interfere with the trial court’s finding that the Respondent’s termination was unfair. **Remedies?** 1. Having found that the Respondent’s termination was unfair, the trial court awarded him compensation equivalent to six (6) months’ salary, taking into account the Respondent’s length of service. I find no basis to interfere with that award, which in any event is a matter within the court’s discretion. 2. The award of one (1) month’s salary in lieu of notice is likewise upheld, the Court having determined that the termination of the Respondent from employment did not comply with the procedural requirements set out under Section 41 of the Employment Act. 3. On the claim for underpayment, the Appellant contended that the trial Magistrate erred both in law and fact by failing to find that the terms of remuneration were mutually agreed upon, and that the resultant award was therefore unfounded. 4. With tremendous respect to the Appellant, its contention that the Respondent’s remuneration was governed solely by the parties’ agreement, thereby constituting a binding arrangement, is misconceived. The reason for this position is premised on **Section 48(1) of the Labour Institutions Act**, which provides as follows: ***[48](1) Notwithstanding anything contained in this Act or any other written law—*** ***(a) the minimum rates of remuneration or conditions of employment established in a wages order constitute a term of employment of any employee to whom the wages order applies and may not be varied by agreement;*** ***(b)if the contract of an employee to whom a wages order applies provides for the payment of less remuneration than the statutory minimum remuneration, or does not provide for the conditions of employment prescribed in a wages regulation order or provides for less favourable conditions of employment, then the remuneration and conditions of employment established by the wages order shall be inserted in the contract in substitution for those terms.*** 1. Fundamentally, wage orders issued under the Labour Institutions Act set, as a matter of law, the minimum terms and conditions of employment applicable to employees. They therefore establish binding minimum standards below which remuneration or other employment benefits cannot lawfully fall. 2. Accordingly, the Appellant cannot rely on contractual arrangements that provide for terms which are less favourable than the statutory minimum prescribed under the applicable wage orders. 3. From the Respondent’s letter of appointment dated 15th October 2020, it is indicated that his monthly salary was Kshs 22,000/-. 4. Pursuant to Legal Notice No. 2 of 2018, the minimum consolidated wage applicable to an employee in the Appellant’s category (lorry driver) working in Mukurweini, where the Respondent was stationed, for the period 1st May 2018 to 30th April 2022, was **Kshs 21,713.39** (being Kshs 18,881.21 + 15% house allowance). Seeing that the Respondent’s consolidated monthly salary was **Kshs 22,000.00**, it follows that he was not underpaid during the period from 15th October 2022 (being the date of employment) up to 30th April 2022, when the minimum wage was revised upwards. 5. For the period between 1st May 2022 and 18th October 2023, when the Respondent’s employment was terminated, the applicable basic statutory minimum wage for employees in his category within Mukurweini was **Kshs 21,147.00** pursuant to Legal Notice No. 125 of 2022. When the statutory 15% house allowance is factored in, the minimum consolidated wage amounts to **Kshs 24,319.05.** Accordingly, the Respondent was underpaid by **Kshs 2,319.05** per month during the said period. 6. In view of the foregoing, it is evident that the Respondent was underpaid during certain periods of his employment, and as such, the trial Magistrate cannot be faulted for so finding. 7. owever, it is noteworthy that the trial court appears to have applied an erroneous scale in computing the salary underpayments. In the circumstances, the said computations shall be appropriately adjusted. 8. The Appellant’s contention that the trial court erred by failing to subject the award to statutory deductions, thereby occasioning a miscarriage of justice, is immaterial. This is because **Section 49(2) of the Employment Act** is couched in mandatory terms, and as such, the Court did not need to make any further pronouncement on the issue. **Whether the trial court erred in finding that the Appellant had failed to prove its counterclaim.** 1. At the trial court, the Appellant counterclaimed against the Respondent the sum of **Kshs 49,478/-** on account of alleged loss of fuel. It was the Appellant’s case that the Respondent siphoned 244.34 litres of fuel at a pump price of Kshs 202.5 per litre, translating to Kshs 49,478/-. In support of this claim, the Appellant produced a fuel report relating to the motor vehicle assigned to the Respondent. 2. Having carefully considered the fuel report exhibited, the Court is unable to discern how the same establishes that 244.34 litres of fuel was unlawfully siphoned from the subject motor vehicle. Beyond the production of the report, the Appellant did not demonstrate the nexus between fuel consumption recorded for the said motor vehicle and the alleged siphoning by the Respondent, nor did it explain the manner in which the figure of 244.34 litres was derived. 3. In view of the foregoing, the Court finds that the Appellant failed to prove its Counterclaim to the requisite standard. **Orders** 1. In the final analysis, the Appeal is disallowed save for the following variations:- 2. **The award of Kshs 181,600.80 in respect of compensation for unfair termination, computed on the basis of a monthly salary of Kshs 30,266.80, is hereby revised to Kshs 145,914.30, computed on a monthly consolidated salary of Kshs 24,319.05.** 3. **The award of Kshs 30,266.80 being one (1) month’s salary in lieu of notice, is substituted with Kshs 24,319.05.** 4. **The award on salary underpayments in the sum of Kshs 235,990.65 is reduced to Kshs 40,815.28, calculated as follows: Kshs 2,319.05 x 17 months and 18 days.** 5. **The total award is accordingly varied from Kshs 447,858.25 to Kshs 211,048.63.** 6. **Interest shall accrue on the sum in (d) at court rates from the date of this judgment until payment in full.** 7. As the Appeal has been disallowed, costs in this Court and at the trial Court shall be borne by the Appellant and shall be computed on the basis of the final award. **DATED, SIGNED** and **DELIVERED** at **NYERI** this **15th** day of **May** 2026. **………………………………** **STELLA RUTTO** **JUDGE** **In the presence of:** For the Appellant Ms. Njau instructed by Mr. Magua For the Respondent Ms. Wangechi Court Assistant Ndati **ORDER** In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court had been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. **STELLA RUTTO** **JUDGE**