https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2338

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **ELRC APPEAL NO. E196 OF 2025** *(Before D. K. N. Marete)* **ROYAL GARMENTS INDUSTRIES EPZA LIMITED……………………APPELLANT** **VERSUS** **JENIPHER KAVEVO VAATI……………………………......……………RESPONDENT** **JUDGMENT** This matter was originated by way of a Memorandum of Appeal dated 10th June, 2025. This arises from the judgment, decree and orders of the Chief Magistrate’s Court dated 17th May, 2025 and delivered on 21st May 2025 in Mavoko MCELRC Cause No. 68 of 2020. By the impugned judgment, the trial court found that the Respondent’s dismissal from employment by the Appellant was unlawful and unfair, and awarded her one month’s salary in lieu of notice, pro-rated leave pay for the period January to March, 2020 and five months’ gross salary as compensation for unfair termination, together with a certificate of service and costs, the total monetary award being Kshs. 96,413.00. It comes out as follows; *1. That the Learned Hon Magistrate erred both in law and in fact thereby arriving at a wrong decision that the termination of employment was illegal, unlawful, wrongful and unfair.* *2. That the Learned Hon Magistrate erred in law, principles and in fact in finding that the Respondent proved her case on a balance of probability.* *3. That the Learned Magistrate erred in law and in principle in awarding the Respondent five (5) months’ salary as compensation without any justifiable basis.* The Appellant prays that the appeal be allowed, the judgment and decree of the trial court be set aside, and the costs of this appeal be awarded to themselves. It is the Appellant’s case and submission that the Respondent developed a pattern of absenteeism during her employment. She was issued with a first warning letter dated 14th May, 2019 for unauthorised absence from work between 8th and 13th May, 2019 to which she responded with an apology of even date. A second warning letter was issued on 30th March, 2020 for poor performance. It is the Appellant’s case that between 6th and 20th April, 2020 the Respondent absented herself from work without authorisation and was served with a Notice to Show Cause dated 20th April, 2020. She declined to respond. A disciplinary meeting was convened on 21st April, 2020 which the Respondent also failed to attend and she was thereafter summarily dismissed by a letter dated 22nd April, 2020. The Appellant contends that the Respondent’s terminal dues were paid in full and collected on her behalf by a union official. On appeal, the Appellant submits that the Respondent failed to discharge the burden placed on her by Section 47(5) of the Employment Act, 2007 to establish that the termination was unfair, and that the trial court erred in rejecting the Appellant’s evidence concerning the disciplinary process. Reliance is placed on **Mackenzie Maritime (E.A.) Limited v Moses Ochola Juma ELRCA No. E073 of 2022** and **Ngunda v Ready Consultancy Limited, Civil Appeal No. 128 of 2019**, for the proposition that an employee who declines a genuine opportunity to be heard cannot later complain of denial of a fair hearing. On quantum, the Appellant urges that five months’ compensation is excessive and that the Respondent substantially contributed to her own termination through absenteeism. The Respondent’s case and submission is that on 6th March, 2020 while engaged in her ordinary duties, she was summoned by her supervisor and directed to the Human Resource office, where she was verbally informed that her services were no longer required. Security was instructed to escort her out of the premises forthwith. When she attempted to return on 7th March, 2020 the gate was locked against her. She testified that no reason was ever given for the termination of her employment. She was not served with any show cause letter, and that to date she has not been paid her terminal dues. The Respondent draws attention to a fundamental chronological inconsistency in the Appellant’s case: the absenteeism the Appellant relies upon as the substantive basis for dismissal ran from 6th to 20th April, 2020 a period commencing thirty-one days after 6th March, 2020 when on the Respondent’s evidence, she had already been verbally dismissed and excluded from the premises. The Respondent submits that the April 2020 show cause and disciplinary process was an afterthought devised to regularise a dismissal already effected without any process. She sought to rely on **Mureu v Ressourcethica Kenya Limited [2025] KEELRC 1912 (KLR**.**)** On quantum, the Respondent urges that five months’ compensation was fair in the circumstances and relies on **Nation Media Group Limited v Munene [2025] KECA 114 (KLR)**. 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 erred in finding that the Respondent’s dismissal was unlawful and unfair. 2. Whether the trial court erred in awarding the Respondent five months’ salary as compensation. 3. Who shall bear the costs of the appeal. The 1st issue for determination is whether the trial court erred in finding that the Respondent’s dismissal was unlawful and unfair. This being a first appeal, this Court is enjoined to re-evaluate the evidence on the record and arrive at its own independent conclusions on both fact and law, while bearing in mind that it neither saw nor heard the witnesses testify and will not interfere with the trial court’s findings merely because it might have arrived at a different result on the same evidence. This is the *ratio decidendi* in **Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123.** For a termination from employment to withstand scrutiny it must satisfy the conjunctive requirements of substantive justification and procedural fairness. The employer bears the burden under Sections 43 and 45 of the Employment Act, 2007 of proving that the reason for the termination was valid and fair, and that fair procedure was observed in effecting it. Where either limb fails, the termination is unfair for the purposes of the Act, regardless of the strength of the other limb as was in **Walter Ogal Anuro v Teachers Service Commission [2013] eKLR**. The Respondent’s account of her dismissal on 6th March, 2020 was given in evidence and tested in cross-examination. Her testimony that she was called to the Human Resource office, verbally informed her services were no longer required and escorted from the premises was not displaced by the Appellant’s witness. She further testified that when she returned the following day, the gates were locked against her. This account was not materially challenged and the Appellant’s own witness did not credibly rebut it. The Appellant’s narrative introduces a fundamental chronological difficulty that is determinative of this appeal. The alleged absenteeism put forward as the substantive basis for dismissal is said to have run from 6th to 20th April, 2020 a period that commences thirty-one days after 6th March, 2020 when on the Respondent’s evidence, she had already been verbally dismissed and excluded from the premises. The Notice to Show Cause is dated 20th April, 2020. The disciplinary meeting is said to have been held on 21st April, 2020 and the summary dismissal letter is dated 22nd April, 2020. That timeline cannot be reconciled with a lawful termination. If the Respondent had already been dismissed and locked out on 6th March, 2020 her non-attendance at work in April, 2020 was the direct consequence of the Appellant’s own act in excluding her, not an independent dereliction of duty capable of founding a separate or subsequent ground for summary dismissal. The Appellant cannot dismiss an employee, lock her out of the premises, and then retrospectively attribute her non-attendance in the period following that exclusion to absenteeism. The integrity of the Appellant’s procedural narrative faces a further difficulty. Under cross-examination, the Appellant’s witness, John Muthui, was pressed to produce evidence that the show cause letter of 20th April, 2020 was in fact served on the Respondent. He was unable to do so. His response, that the Respondent had refused service, was rejected by the trial court, which observed that this explanation sat uneasily with the Appellant’s simultaneous assertion that a union official had been available to collect the Respondent’s terminal dues on her behalf. If the union official could collect dues, the Appellant’s failure to use that same conduit to serve or witness service of the show cause notice, or to call any union representative to give evidence on this point, remains unexplained. The trial court’s rejection of the Appellant’s evidence on these points was a credibility finding open to it on the evidence adduced before it. This court, not having had the benefit of hearing the witnesses, is slow to depart from such findings. More fundamentally, the chronological inconsistency identified above is not a question of credibility; it is an internal inconsistency within the Appellant’s own case that undermines the substantive basis for dismissal entirely. The Appellant’s reliance on **Mackenzie Maritime (E.A.) Limited v Moses Ochola Juma** and **Ngunda v Ready Consultancy Limited** for the proposition that an employee who declines a hearing cannot complain of procedural unfairness does not assist in the circumstances of this case. These authorities presuppose that a genuine disciplinary process was underway when the employee declined to participate. Here, the prior question, whether any genuine disciplinary process was initiated at all as opposed to a paper exercise erected after the fact, is itself answered against the Appellant. Disciplinary proceedings purportedly conducted in respect of an employee who had already been dismissed, in relation to absence from premises from which she had already been excluded, carry little weight. This is so observed in the authority of **Mureu v Ressourcethica Kenya Limited [2025] KEELRC 1912 (KLR).** The 1st issue is answered against the Appellant. The trial court’s finding of unlawful and unfair termination is affirmed. The 2nd issue for determination is whether the trial court erred in awarding the Respondent five months’ salary as compensation. Section 49(1)(c) of the Employment Act, 2007 empowers the court to award compensation of up to twelve months’ gross salary in cases of unfair termination. Section 49(4) sets out the matters to which regard must be had in fixing any such award, including the circumstances of the termination, the extent of the employee’s contribution to it, her length of service, and the manner in which the dismissal was carried out. This court has found that the Respondent was dismissed summarily, without any prior disciplinary process, having served the Appellant for approximately four years. The manner of dismissal, a verbal notification in the Human Resource office followed by an immediate escort from the premises and the following day a locked gate, was abrupt and offered the Respondent no notice, no explanation and no opportunity to respond. The contribution, if any, of the Respondent’s own conduct to her termination has not been established for the reasons set out above. The alleged absenteeism on which the Appellant relies cannot stand as a contributing factor once it is found to have occurred, if at all, after the dismissal had already been effected. An award of five months’ gross salary falls squarely within the range available to the trial court in the exercise of its discretion under Section 49. The award is proportionate to the circumstances, is not punitive towards the Appellant, and makes reasonable good the Respondent’s loss. It is a case of justice well applied. It does not warrant interference. The 2nd issue is answered against the Appellant. On the issue of costs, it is an accepted principle of civil law that cause follow the event. The Appellant having failed to establish their case on both grounds, costs would follow the Respondent. I am therefore inclined to dismiss the appeal with costs to the Respondent. Delivered, dated and signed this **29th** day of **July** 2026. **D. K. Njagi Marete** **JUDGE** Appearances: 1. Mr. Kipkorir instructed by Naikuni, Ngaah & Miencha Advocates for the Appellant. 2. Mr. Wanyangu holding brief for Namada instructed by Namada & Company Advocates for the Respondent.