Kariuki v Kangunu Famers Co-operative Society (Civil Appeal 63 of 2018) [2025] KECA 2101 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that even proven employee misconduct means nothing if the employer skips the mandatory notice-and-hearing steps before dismissal.
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 dismissal of the appellant was unfair for want of notification and hearing under section 41 of the Employment Act
- 2.Whether the trial Judge erred in finding valid reasons for termination despite the appellant's non-involvement in the inquiry process
- 3.Whether the appellant was entitled to the alternative remedies claimed (payment in lieu of notice, leave travelling allowance, service gratuity and compensation)
- 4.Whether the internal inconsistency in the judgment below (dismissing the counterclaim for want of a hearing while upholding the termination) vitiated the findings
Key legal issues
#Fair hearing before termination on grounds of misconduct
The termination was unfair because the appellant was never summoned to any disciplinary hearing, never asked to show cause, and never informed of her rights to be accompanied or to appeal, notwithstanding valid grounds of misconduct.
The court held that the Employment Act places process at the centre of termination decisions. Although the inquiry report disclosed fraud sufficient for summary dismissal under section 44, the employer failed over some nine months to involve the appellant in any disciplinary process, denying her the mandatory notification and hearing under section 41 and shifting the burden to the employer under sections 43 and 45.
First appellate court's duty on facts
As a first appellate court, the Court of Appeal must re-appraise the evidence and draw its own inferences of fact, though making due allowance for not having seen or heard the witnesses.
Relying on rule 31 of the Court of Appeal Rules and the settled principles in Selle vs. Associated Motor Boat Company, the court rehearsed its retrial-type duty before departing from the trial Judge's finding that valid reasons existed, and substituted its own evaluation of the documentary and oral evidence.
Internal contradiction in the judgment below
The trial court contradicted itself by finding the termination fair while simultaneously dismissing the counterclaim because the appellant was never given an opportunity to defend herself against the audit findings.
The second ground of appeal highlighted that the Judge dismissed the counterclaim for lack of administrative disciplinary findings and absence of any opportunity to defend, which was irreconcilable with his finding that a fair process culminated in dismissal. This Court resolved the contradiction in favour of unfairness of the termination.
Legal principles established
#- Procedural fairness is mandatory: before terminating employment on grounds of misconduct the employer must notify and hear the employee, and an employer who ignores process will be visited with the consequences set out in the Employment Act.
- Even where gross misconduct justifying summary dismissal exists, termination is unfair if the statutory notification and hearing procedure under sections 41 and 43 of the Employment Act is not followed.
Court orders
#- 1.Judgment of the ELRC set aside
- 2.Substitution of an order allowing the appellant's claim
- 3.No reinstatement ordered because a period of over 3 years had passed since termination
- 4.The alternative prayers made in the Memorandum of Claim granted
- 5.Costs of the appeal and of the suit below awarded to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court (ELRC) at Nyeri
- Not stated in the judgment
- Jurisdiction invoked
- First appeal under rule 31 of the Court of Appeal Rules
Relief refused
#Reinstatement to employment
More than three years had elapsed since termination, making reinstatement unavailable
Costs
Costs awarded to the appellant both in this Court and in the court below: "We would award the appellant costs here and below."
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.
So process is everything under the Act and an employer who ignores it (process) while terminating the services of an employee will fall foul of the law and will be visited with consequences as set out in the Act.
We would allow this appeal by setting aside the judgment of ELRC and substituting therefore an order allowing the appellant's claim.
As a period of over 3 years has passed since termination we would not order reinstatement. We grant the prayers made in the alternative in the Memorandum of Claim. We would award the appellant costs here and below.
Issues in the judgment
#Internal date inconsistencies in the record as reproduced (e.g., suspension letter dated '31st February, 2014' and leave to resume '10th February, 2013'), which the judgment itself notes
Inconsistent dates of dismissal across the record (5th September 2014 in the memorandum of claim; 15th September 2014 in the respondent's evidence and pleadings)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariuki v Kangunu Famers Co-operative Society (Civil Appeal 63 of 2018) [2025] KECA 2101 (KLR)", Case Analysis (2025). First appeal from ELRC at Nyeri (Memorandum of Appeal drawn by Messers J. N. Mbuthia Advocates; appeal number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2101/eng@2025-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.