Lelei v Kenya Women Micro-Finance Bank Ltd (Civil Appeal 96 of 2020) [2026] KECA 870 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that an employer's failure to defend a case doesn't win it for the employee, and dismissed the unfair-termination appeal.
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 termination was fair and in compliance with the law (the substantive question, to which all other issues were appendages)
Key legal issues
#Effect of a defendant's failure to call evidence where a defence has been filed
The appellant was not entitled to a walkover; uncontroverted evidence is not automatically believed and the claimant still bore the burden of proof on a balance of probabilities
Relying on Charterhouse Bank Ltd (Under Statutory Management) vs. Kamau, the court held that a defendant's failure to testify does not discharge the plaintiff's own burden of proof. The appellant testified and was cross-examined, but the pleadings met his claim head-on, so he was required to prove his claim by adducing evidence; his submissions could not substitute for proof.
Whether the termination was procedurally fair for want of adequate notice of the disciplinary hearing
The procedural fairness challenge failed; the issue was not pleaded or raised below and the documents on record showed notice was given, a hearing held, and an appeal opportunity afforded
The appellant never pleaded inadequate notice in his Memorandum of Claim or witness statement, nor raised it in testimony. An issue cannot be introduced for the first time via written submissions on appeal. Further, the show-cause letter, disciplinary minutes, and termination letter - all produced by the appellant himself - affirmed adherence to due process.
Whether the termination was substantively justified
Yes; the appellant conceded flouting credit-management policies leading to loss of funds, which justified termination by a financial institution dealing with customer deposits
The court found no error in the trial Judge's conclusion that loss of money in a deposit-taking institution is serious and erodes confidence. The appellant admitted poor judgment in executing his managerial duties leading to loss of funds, so he could not contend there was no justification for dismissal.
Legal principles established
#- Where a defendant has filed a defence but fails to adduce evidence, the plaintiff's evidence is not automatically accepted; the plaintiff must still prove its case on a balance of probabilities
- A first appellate court must re-appraise and re-assess the evidence and reach its own independent conclusions, bearing in mind it did not see or hear the witnesses
- An appellate court cannot determine an issue raised for the first time on appeal by way of written submissions where it was never pleaded or canvassed before the trial court
- Documents filed but not produced by a party may still ground findings where the opposing party himself produced them as part of his case, and a party cannot disown documents he produced
Court orders
#- 1.The appellant's appeal is dismissed
- 2.No order as to costs, the respondent having not participated in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules, 2022 (rule 31), from the Employment and Labour Relations Court
Relief refused
#All remedies sought on appeal (compensation for unfair termination, notice pay, house allowance, overtime, leave pay, gratuity, SACCO refunds)
The appellant admitted poor judgment leading to loss of funds; the termination was both substantively and procedurally justified; the claim was without merit
Claim of procedural unfairness for inadequate notice of the disciplinary hearing
The issue was raised for the first time on appeal by way of written submissions; it was not pleaded or testified to below, so the court had no authority to address it
Costs
No order as to costs - the respondent having not participated in the appeal
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.
Consequently, the appellant’s appeal fails and is dismissed. The respondent having not participated in the appeal, we make no order as to costs.
The suggestion, however, implicit in some of the decisions quoted above, that in all and sundry civil cases the failure by the defendant to adduce evidence in support of his defence means that the plaintifi’s case is proved on a balance of probabilities cannot possibly be correct.
Likewise, we have no authority to address an issue raised for the first time before us by way of written submissions.
This is a first appeal, and it is our duty, in addition to considering submissions herein, to analyse, to examine and re-assess the evidence on record and reach our own independent conclusion in the matter.
The documents were therefore part and parcel of the record, and he cannot run away from them.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lelei v Kenya Women Micro-Finance Bank Ltd (Civil Appeal 96 of 2020) [2026] KECA 870 (KLR)", Case Analysis (2026). Court of Appeal Appeal (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/870/eng@2026-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.