Noah Akaru Alomba v Green Park Golf & Country Complex T/A The Great Rift Valley Lodge & Golf Resort
The bottom line
#Kenya's Court of Appeal confirmed that an employer may lawfully dismiss an employee without pay who skips work without permission, provided the worker gets a genuine chance to respond.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant's summary dismissal was procedurally fair under Sections 41 and 44 of the Employment Act
The dismissal was lawful and procedurally fair. Absenteeism without leave is a lawful ground for summary dismissal under Section 44(4)(a), and the circumstances showed the appellant knew the reasons for termination and was given an opportunity to respond, which he did by submitting a medical note that the employer was entitled to reject.
The Court examined Section 44(1) and (3) and the non-exhaustive list of gross misconduct in Section 44(4), noting absenteeism without leave or lawful cause is a lawful ground for summary dismissal. It then applied the four Section 41 elements of fair procedure. Because the appellant submitted a medical note in response to the accusation of absenteeism, he could not contend he was never heard. The Court declined to substitute its own view for the learned judge's assessment of that note.
Allocation of the burden of proof in unfair termination claims
The employer must prove both substantive and procedural fairness under Sections 43, 45 and 47(5), but the employee must first lay the foundation by proving the termination was unfair or wrongful.
The Court adopted its earlier decision in Pius Machafu Isindu v Lavington Security Guards Limited, holding that the Employment Act places heavy obligations on employers in summary dismissal cases: to prove the reasons for termination, their validity and fairness, and to follow the mandatory notification and hearing process under Section 41. Section 47(5) places the burden of proving unfairness on the employee; only once that foundation is laid must the employer justify the grounds under Section 43.
Whether the Court should interfere with the trial court's exercise of discretion and fact findings
No; the Court refused to substitute its reasoning for that of the learned judge, finding no misdirection, and confined itself to the issues raised in the memorandum of appeal.
As a first appeal, the Court re-evaluated the evidence but found the trial judge had properly found that the claimant was invited to show cause and accorded due process under Sections 44 and 41(2). The appellant also failed to demonstrate that the judge misdirected herself or considered irrelevant matters. Additionally, the house allowance claim was excluded because it was not raised in the memorandum of appeal.
Legal principles established
#- Under Sections 47(5) and 45(2) of the Employment Act, the employee bears the burden of proving that dismissal was unfair or wrongful, while the employer bears the burden of justifying the grounds of termination and proving both substantive and procedural fairness.
- Section 41 of the Employment Act lays down the four minimum elements of a fair procedure before termination on grounds of misconduct.
- Procedural fairness is contextual; whether an employee was accorded a hearing is assessed objectively through the reasonable man test rather than by the strict formalities of court proceedings.
- On a first appeal, the Court must re-evaluate, re-assess and re-analyse the evidence on record, bearing in mind that it did not see or hear the witnesses, and must not introduce extraneous matters not presented at trial.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal are awarded to the respondent
- On appeal from
- Employment and Labour Relations Court
- Not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction over the Employment and Labour Relations Court (the judgment refers to 'This being a first appeal')
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Noah Akaru Alomba v Green Park Golf & Country Complex T/A The Great Rift Valley Lodge & Golf Resort", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/378/eng@2025-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.