Kabura (As the Administrator of the Estate of Ishak AF) v Board of Trustees National Social Security Fund (Civil Appeal 451 of 2019) [2025] KECA 733 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that an employer can fairly dismiss an employee in writing over a lost cheque, without an oral hearing, so long as valid reasons and fair procedure exist.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant's conduct warranted summary dismissal (whether there were valid reasons to terminate his employment)
- 2.Whether the appellant's termination was procedural, fair and legal in the circumstances
- 3.Whether the appellant was discriminated against in his termination
- 4.Who should pay costs of the appeal
Key legal issues
#Whether there were valid and justifiable grounds for terminating the appellant's employment
Yes. The appellant never denied possession of the cheque, his explanation for its loss was unconvincing, he lacked authority to collect or deliver the cheque, and his disregard of cheque-handling procedures undermined the integrity essential to his role as acting Finance Manager.
The Court, as a first appellate court, re-assessed the evidence and agreed with the trial court that the appellant's account was unconvincing: his claim to have used a private car was contradicted by the unexplained splitting open of the bag, he never alleged vandalism or companions, and he did not sufficiently challenge evidence that cheque collection and delivery was not his responsibility. His conduct, despite remedial steps, raised serious integrity concerns justifying termination.
Whether the appellant was entitled to an oral hearing before termination
No. Oral hearings are not mandatory where the employee is given a show cause letter and responds comprehensively in writing; fairness depends on the context and nature of the decision.
Relying on Postal Corporation of Kenya v Tanui and Fredrick Oduor Lamba v KenGen, the Court held that the standards of fairness are context-dependent and there is no rule that fairness always requires an oral hearing. The appellant's detailed written response of 9th September 2009 addressed each issue, leaving nothing further to clarify, and he suffered no prejudice from the absence of an oral hearing.
Whether the appellant was discriminated against in his termination
The issue was not pleaded and therefore could not be determined on appeal.
The Court reviewed the Memorandum of Claim and agreed with the respondent that discrimination was never pleaded. Invoking the principle in IEBC v Mutinda Mule that parties are bound by their pleadings and inconsistent evidence must be disregarded, the Court declined to entertain the issue.
Legal principles established
#- For a termination of employment to be fair there must be both substantive justification and procedural fairness, and the employer bears the burden of proving valid reasons under sections 43 and 45 of the Employment Act
- An oral hearing is not mandatory in disciplinary proceedings where the employee is issued a show cause letter and gives a detailed written response; whether an oral hearing is necessary depends on the subject matter, circumstances and nature of the decision
- Parties are bound by their pleadings and evidence not supporting or inconsistent with the pleadings is of no probative value; an unpleaded issue cannot be determined on appeal
Court orders
#- 1.The appeal is dismissed
- 2.Each party bears own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Nairobi
- Cause No. 485 of 2010
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Employment Act / Court of Appeal jurisdiction (the judgment frames it as a first appeal, 'it is our duty to analyze and re-assess the evidence on record')
Relief refused
#Compensation for unfair termination (Kshs.20 million sought on appeal; terminal benefits and damages sought in the Memorandum of Claim)
The termination met the requirements of both substantive and procedural fairness and the appellant was paid all his dues
Determination of the discrimination claim
The issue of discrimination was never pleaded in the Memorandum of Claim and parties are bound by their pleadings
Costs
Each party bears own costs ('We direct that each party bears own costs.')
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot is that this appeal is without merit and is accordingly dismissed. We direct that each party bears own costs.
for a termination to pass the fairness test, it must be shown that there was not only substantive justification for the termination but also procedural fairness.
Whether or not a person was given a fair hearing of his case depends on the circumstances and the type of the decision to be made.
The said issue having not been pleaded, this Court cannot be invited to make a determination on it on appeal.
In the circumstances, we are satisfied that there were valid and justifiable grounds for the termination of his employment.
Issues in the judgment
#Internal inconsistency in the grounds of appeal: the memorandum alleges the termination letter is dated 22nd October 2009, whereas the judgment elsewhere consistently records it as dated 22nd December 2009
The claim for compensation is stated as covering 'the period from January 2020 to November 2020' although the dismissal occurred in December 2009; this appears to be a typographical error in the judgment
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.
- British American Tobacco Kenya (Ltd) v Ekaya (Civil Appeal 402 of 2019) [2026] KECA 958 (KLR)[2026] KECA 958 (KLR)15 May 2026applied
Cite this brief
#Cite this brief
Caselaw, "Kabura (As the Administrator of the Estate of Ishak AF) v Board of Trustees National Social Security Fund (Civil Appeal 451 of 2019) [2025] KECA 733 (KLR)", Case Analysis (2025). Civil Appeal (Cause No. 485 of 2010 appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/733/eng@2025-05-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.