https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1554

Tarmal Wire Products v Dume (Civil Appeal E131 of 2025) [2026] KEELRC 1554 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1554 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Civil Appeal E131 of 2025 K Ocharo, J May 28, 2026 Between Tarmal Wire Products Appellant and Delson Chisambo Dume Respondent (Being an appeal against the judgment of Hon. M. Kimani – PM Mariakani CM Court delivered on 4th July 2025 in MCELRC No. E38 of 2022) Judgment 1.At all material times, the Respondent was an employee of the Appellant. Contending that his employment was terminated at the Appellant's initiative and unfairly, the Respondent sued the Appellant, seeking various reliefs: one month's notice pay, severance pay, leave pay, compensation for unlawful termination, and an order for the issuance of a certificate of service. 2.The Appellant resisted the Respondent’s claim via the Respondent’s Memorandum of Response dated 4th November, 2022. The Appellant contended that the Respondent absconded from duty, and as such, his employment was not terminated unfairly as alleged. Further, he was not entitled to the remedies he sought. 3.By consent of the parties, it was agreed that the trial court proceed to consider the parties’ respective cases on the basis of the pleadings, documents, witness statements, and submissions, pursuant to Rule 59 of the Employment and Labour Relations Court [Procedure] Rules, 2024, and render judgment on the matter. 4.After considering the parties on their respective cases, as was brought out in the above-mentioned documents, the trial court entered judgment in favour of the Respondent. The appellant impugns the judgment in its entirety in this appeal Respondent’s case 5.The Respondent’s case in the lower court was that he was employed by the Appellant, Tarmal Wire Products Limited, sometime in January 2012 as a general labourer. Further, that his duties involved assisting the machine operator and that he earned a consolidated monthly salary of Kshs. 9,664. 6.He asserted that throughout his employment, from January 2012 to January 2022, he was never issued a written contract of employment and was never granted annual leave. He stated that he worked diligently and maintained a good relationship with the Appellant until his employment was summarily terminated. 7.According to the Respondent, sometime in January 2022, at around 9.00 a.m., the Appellant’s supervisor, Mr Ogolla, summoned him and other employees and informed them that their services were no longer required due to a reduction in work. He stated that the termination took effect immediately. 8.The Respondent argued that the termination was both unlawful and unjust, citing the absence of notice, the failure to inform the County Labour Office of the intended termination, the lack of a proper redundancy selection process, non-payment of terminal dues, and the absence of a certificate of service. Appellant’s case, before the trial court 9.The Appellant stated that the Respondent was engaged under various fixed-term contracts, with the last contract allegedly running from 1st December 2021 to 31 January 2022. He was employed as a General Labourer, earning a consolidated salary of KShs. 9,664. 10.It contended that on or about 18th January 2022, the Respondent absented himself from duty without authority, prompting the Appellant to issue him a notice to show cause by registered post. The Respondent did not respond to the notice. He was then invited, also by letter sent by registered post, to attend a disciplinary hearing scheduled for 2nd February 2022. 11.The Respondent was therefore not unfairly terminated as alleged. Rather, he absconded from duty, and the Appellant lawfully invoked the disciplinary process before terminating his employment. The Appellant asserted that the Respondent often utilised his earned leave days and was therefore not entitled to any compensation on the basis of his allegation that he did not utilise them. As the other reliefs were made dependent on the claim for unfair termination, the Appellant urged that they were not available to him. Judgment of the trial Court. 12.The trial court was not convinced by the appellant’s assertion that the respondent absconded from duty, and that his dismissal was consequently substantively justified and procedurally fair. It, however, found that the Respondent had proved that his dismissal from employment was both substantively and procedurally unfair. 13.Consequent to its finding that the termination of the Respondent’s employment was unfair, the learned trial Magistrate granted the Respondent a compensatory award of four months’ gross salary. The Court made a further award of KShs. 67,620 for earned but unutilised leave days. The Appeal 14.Dissatisfied with the decision, the Appellant challenged the judgment, setting out the following principal grounds:i.That the Learned Magistrate erred in law and in fact in entering judgment for the Respondent against the Appellant.ii.That the learned magistrate erred in law and in fact in finding and ordering that the Respondent was entitled to Notice pay, leave pay, damages for unfair termination, costs of suit and interestiii.That the learned magistrate erred in failing to appreciate and/or consider the pleadings filed and the documentary evidence placed before him, thereby arriving at a wrong conclusion, particularly as regards the reason for termination of the Respondent.iv.That the learned magistrate, having acknowledged that no employment contract was adduced in evidence, erred in law in holding that the Appellant had unfairly terminated the Respondent.v.That the learned magistrate erred in law and fact in failing to appreciate the duty /burden imposed on the Respondent under section 47(5) of the Employment Act 2007 Appellant’s submissions 15.The Appellant submits that the trial court erred in finding that the dismissal of the Respondent from employment was procedurally unfair. It presented ample evidence demonstrating that the Respondent was issued a show-cause letter, invited to a disciplinary hearing, and that a decision was reasonably made to dismiss him. As such, the finding was unfounded. 16.The Appellant further submits that the learned trial Magistrate was right when he found that absconding duty constitutes a gross misconduct that can justify summary dismissal. However, she went off this right track when she went ahead to doubt the Appellant’s position, based on an irrelevant matter, that all the alleged fixed -term contracts were not tendered in evidence, yet neither they nor the employer-employee relationship between the parties was in issue. 17.The trial Court’s finding that the logical course for the Appellant to have taken was to wait for the Respondent’s contract, which was almost ending, to terminate and not to take disciplinary action was wrong. The Appellant had the right to exercise its managerial prerogative at any point in the employer-employee relationship. 18.Regarding remedies, the Appellant submits that the trial court erred in awarding notice pay, leave pay and compensation. It argues that the Respondent did not specify the years for which leave was claimed, and that the Appellant produced leave forms showing that he frequently applied for and took leave. It further submits that, because the Respondent was summarily dismissed for absconding from duty, he was not entitled to notice pay or compensation. 19.In conclusion, the Appellant urges the appellate court to allow the appeal, set aside the judgment of the trial court, and award it costs. Respondent’s submissions 20.The Respondent’s Counsel submitted that the Respondent’s employment was verbally terminated on 31st March 2022, purportedly on account of redundancy. Having opted to terminate his employment on the account, the Appellant was bound to adhere to the statutory dictates set out under Section 40 of the Employment Act. 21.Considering the material placed before the trial Court, it should be concluded that the Court did not err in holding that, despite the Respondent's alleged absconding of duty and consequent service of show cause and invitation to disciplinary hearing letters by registered post, the allegation was not sufficiently proved. 22.It is further stated that the Notice to show cause appears to have been issued on the alleged date of abscondment, and the invitation to the disciplinary hearing post the expiry date. No better conclusion would be reached than that it is illogical. When the learned trial Magistrate held that the other alleged fixed-term contracts ought to have been produced in evidence, if they ever existed, she was only pointing out the gaps in the Appellant’s case, considering it her duty under Section 47[5] of the Employment Act. 23.Regarding remedies, the Respondent supports the trial court’s award of notice pay of Kshs. 9,664, leave pay of Kshs. 67,620, and four months’ compensation of Kshs. 38,576. He argues that the leave forms produced by the Appellant were incomplete and unapproved, and that the compensation awarded was reasonable given his 10 years’ service and the unfair manner of his termination. He also supports the award of costs and interest. Analysis and determination 24.I have carefully considered the grounds of appeal, the material placed before the trial court, and the respective submissions of the parties’ counsel, and take the view that this appeal revolves around three issues: whether the trial court erred in finding that the Respondent’s termination was unfair, and whether the trial court erred in awarding notice pay, leave pay and compensation for unfair termination. 25.As this is a first appeal, the Court is required to reconsider and re-evaluate the record and arrive at its own independent conclusion, bearing in mind that it did not hear or see the witnesses. 26.Before I delve into the issues identified, I find it important to point out that Rule 59 of the Employment and Labour Relations Court [Procedure] Rules is a pragmatic provision intended to facilitate the expeditious, proportionate, and cost-effective determination of disputes. It permits the Court, in appropriate cases, to determine matters on the basis of pleadings, affidavits, witness statements, documents, and written submissions without receiving oral testimony. However, it is important to underscore that the Rule was never intended for universal application. 27.The suitability of a matter for determination solely on the basis of documents depends on the nature and complexity of the dispute. Where the facts are straightforward, largely uncontested, or capable of being established from documentary evidence, the Court may properly invoke the Rule. In such cases, dispensing with oral evidence serves the overriding objective of facilitating the just, efficient, and timely disposal of proceedings. 28.However, where the dispute presents contested questions of fact, serious allegations touching on credibility, disputed authenticity of documents, or matters requiring clarification through cross-examination of witnesses, the Court ought to exercise considerable caution before invoking the Rule. The assessment of credibility is often best achieved through oral testimony, where the Court has the opportunity to observe witnesses and test the veracity, consistency, and reliability of their evidence. 29.Indeed, to apply Rule 59 indiscriminately to every case would risk compromising the parties’ right to a fair hearing. The Rule is therefore not a substitute for a full hearing in all circumstances, but rather a procedural tool to be employed where the interests of justice permit. The Court must, on a case-by-case basis, satisfy itself that the issues in controversy can be fairly resolved without the benefit of oral evidence. 30.I have considered the matters in controversy in the suit that was before the trial Court and see that the matter wasn’t a proper one for the application of the provision. However, that said, this Court would do what is justly possible to determine this appeal. 31.Section 45 of the Employment Act prohibits unfair termination of an employee’s employment. According to the provision, an unfair termination is one that is reached without adherence to the tenets of procedural fairness and is not based on a valid and fair reason or reasons. 32.The duty to prove that the termination was procedurally fair and anchored on a valid and fair reason or reasons is always on the employer. See Pius Machafu Isundu v Lavington Security Guards Limited [2017] eKLR. 33.The Appellant contended that the termination of the Respondent’s employment was conducted in a procedurally fair manner. Conversely, the Respondent adopted the opposite position. For the employer to successfully argue that the termination of an employee’s employment was procedurally fair, they must demonstrate that the employee was notified that a disciplinary action was contemplated against him and of the grounds for the intended action, that the employee was afforded an adequate opportunity to prepare and make representations on those grounds, and that the employer considered those representations before making the final decision on the matter. 34.Aiming to prove that the edicts of procedural fairness were observed, the Appellant placed before the trial Court a purported show cause letter dated 18th January 2022 and contended that it was served on the Respondent by registered post. I have carefully scrutinised the certificate of postage tendered before the trial Court; it does not bear the addressee’s postal address. Therefore, it cannot be said that the service, which was in any event vehemently disputed, was proved by the Appellant. 35.The Appellant asserted that the Respondent was invited to a disciplinary hearing scheduled for 8th February 2022, by a letter dated 1st February 2022, which was sent to him on 2nd February 2022. Equally, the certificate of postage exhibited did not include the addressee’s postal address. It is not unreasonable to conclude that the Respondent’s assertion that he was not served with the letter at all is not idle. 36.In sum, the Appellant did not prove that the purported service was done through the Respondent’s last known address. 37.It has not escaped this Court’s attention that the Appellant did not place any document before the trial Court to demonstrate that, at the disciplinary hearing, the Respondent failed to attend, and that a decision was made to terminate his employment at that meeting 38.The Appellant alleged that at the termination of the Respondent’s employment, the Respondent was serving under a fixed-term contract of employment that had a lifespan of two months, from 1st December 2021 to 31st January 2022. To this Court, and I agree with the learned trial Magistrate’s assessment of it, it doesn’t make any reasonable sense that an employer who verily knew that the employee’s contract had terminated on 31st January 2022, by effluxion of time, would issue an invitation letter dated a day after the expiry of the life of the contract, purportedly post it to him two days after the appointed lapse date, and expect him to appear before a disciplinary panel, eight days after he had ceased to be their employee. 39.In my view, the foregoing speaks only to one thing; the Appellant’s version is too illogical to be believed. It was a “cleverly” coined version for purposes of the case, but unfortunately for them, it did not escape the scrutinous eye of the trial Court, and mine too. Out of these, the only fair that should be and is hereby arrived at is that the termination was procedurally unfair. The learned trial judge did not err in so finding. 40.Desertion or absconding duty does not automatically terminate employment. The employer must demonstrate the steps taken to contact the employee and to formally bring the employment relationship to an end. 41.In Kiptum v Wainaina t/a Msafi Cleaning Services (Appeal E089 of 2024) [2025] KEELRC 3208 (KLR) (14 November 2025) (Judgment),“Further, this court has held time and again that where an employer alleges absconding of duty by an employee, it must demonstrate what action it took to get in touch with the employee. It is not enough for an employer to allege that an employee absconded duty without demonstrating that the employer took some action in respect thereof.” 42.Having found as I have hereinabove of the purported show cause letter, invitation letter, and disciplinary hearing, I cannot conclude that the Appellant demonstrated to the requisite standard that the termination was on account of desertion, and that the same was a valid and fair reason for the termination. The learned Magistrate did not err in holding that the Appellant did not discharge their duty under Sections 43,45, and 47[5], therefore. 43.As the award for compensation pursuant to the provisions of Section 49[1][c], and notice pay were dependent on the claim for unfair termination, and noting that the only Appellant only opposes the upholding of the award on the ground that the claim was not proved, I have no reason to disturb the awards. 44.Section 28 of the Employment Act entitles an employee to annual leave. However, the Respondent bore the initial burden of specifically pleading and proving the claimed leave days or years. In this case, although the Respondent claimed leave for a period of 10 years, he did not particularise the specific years, the number of leave days due for each year, or the basis upon which the total claim was computed. The Appellant, on its part, produced leave application forms showing that the Respondent applied for leave on various occasions. Although the trial court found that the forms were incomplete, the court nonetheless awarded leave pay for the entire 10-year period without a clear evidential basis and without identifying the specific outstanding leave days. In the circumstances, the award of Kshs. 67,620.00 as leave pay was not sufficiently proved and is hereby set aside. 45.In the upshot, the Appellant’s appeal partially succeeds. The awarded compensation for earned but untaken leave days, KShs. 67,620.00 is hereby set aside. Each party to bear its own costs. 46.Orders accordingly. READ, SIGNED AND DELIVERED THIS 28TH DAY OF MAY 2026.OCHARO KEBIRAJUDGE