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ELRCDismissedNot stated in the judgment as provided

Mutuma v Chaina Railway 21st Bureau Group (Kenya) Company Limited (Appeal E002 & E004 of 2024 (Consolidated)) [2025] KEELRC 726 (KLR)

Employment and Labour Relations Court
7 March 2025
1,759 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a first appeal decided by the Employment and Labour Relations Court at Nairobi, presided over by Byram Ongaya, Principal Judge, against a trial Court judgment delivered on 17.01.2024 dismissing the appellant's claim for wrongful and unfair summary dismissal. The appellant, employed as a Tipper Driver, was summarily dismissed on 17.01.2023 on allegations of selling project materials to undisclosed third parties. He sought a declaration of wrongful and unfair termination, one month's salary in lieu of notice, twelve months' salary as compensation, costs and interest. The trial Court found the dismissal fair in substance and procedure, upholding the respondent's evidence that the appellant had been previously interdicted and warned over the same misconduct. On appeal, three issues were framed: procedural fairness, substantive fairness, and entitlement to reliefs. The Court held that under section 41(2) read with section 44(1) and (2) of the Employment Act, an employer may dismiss summarily with shorter or no notice for gross misconduct provided the employee is heard; the appellant had confirmed he was summoned, heard and then dismissed, amounting to substantial compliance. On substance, although the trial Court had cited section 44(4)(e) rather than the section 44(4)(g) invoked by the respondent, this mix up did not defeat the reason for dismissal. On a balance of probability the appellant was culpable of disobeying a lawful instruction and the reasons for dismissal were fair under section 45. The appeal was dismissed with costs and the case file ordered returned to the Sub-Registry at Machakos.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the summary dismissal was procedurally fair
  2. 2.Whether the summary dismissal was substantively fair
  3. 3.Whether the appellant was entitled to the reliefs sought in the statement of claim

Key legal issues

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01

Procedural fairness of the summary dismissal under section 41 of the Employment Act

Holding

The dismissal was procedurally fair because the appellant was summoned, heard, and then summarily dismissed, amounting to substantial compliance with sections 41(2) and 44 of the Act

Reasoning

Section 41(2) read with section 44(1) and (2) permits termination on shorter or no notice for gross misconduct where the employee has been heard. The appellant confirmed he was summoned, interviewed and heard before the summary dismissal followed. The Court therefore found substantial compliance with the statutory dismissal procedure and held that the first ground of appeal would collapse.

p. 4
02

Substantive fairness of the summary dismissal

Holding

The dismissal was substantively fair; the appellant was culpable of selling project materials to undisclosed third parties in disobedience of a warning, constituting gross misconduct

Reasoning

Although the trial Court cited section 44(4)(e) while the respondent had invoked section 44(4)(g), the Court held this was a mix up that did not defeat the reason for dismissal. The appellant had attended a meeting where drivers were warned against the misconduct, yet was found selling project materials to undisclosed third parties. On a balance of probability, RW's account was credible and the reasons were fair under section 45.

p. 4
03

Entitlement to the reliefs sought in the statement of claim

Holding

The appellant was not entitled to the reliefs because the trial Court did not err in dismissing the suit

Reasoning

Having upheld the trial Court's finding that the dismissal was fair in both procedure and substance, the Court concluded that the trial Court did not err in dismissing the claimant's suit, and consequently the appeal against that dismissal failed with costs.

p. 4

Legal principles established

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  • In cases of summary dismissal on account of gross misconduct, the employer may terminate with shorter or no notice provided the employee has been heard in relation to the misconduct

Court orders

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  1. 1.The appeal is dismissed with costs
  2. 2.The Deputy Registrar to return the case file to the Sub-Registry at Machakos forthwith

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Trial Court (Sub-Registry at Machakos)
Not stated
Jurisdiction invoked
First appellate jurisdiction over the trial Court's judgment (Employment and Labour Relations Court); specific provision not stated in the judgment

Relief refused

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Setting aside the trial Court's judgment and substitution with an order allowing the appellant's claim (declaration of wrongful and unfair termination, one month's salary in lieu of notice, 12 months' compensation, costs and interest)

The trial Court's finding that the dismissal was fair in procedure and substance was upheld; the respondent substantially complied with sections 41 and 44 of the Employment Act and the reasons for dismissal were fair under section 45

p. 4

Costs

The appeal is dismissed with costs to the respondent

Quotable passages

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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 employer may terminate an employee with shorter or no notice provided the employee has been heard by the employer in relation to the misconduct
p. 4Procedural fairness in summary dismissal
It appears to the Court that the findings by the trial Court did not defeat the reason for the dismissal and did not amount to a misdirection on the facts and evidence on record.
p. 4Substantive fairness - gross misconduct
In conclusion the appeal is dismissed with costs and the Deputy Registrar to return the case file to the SubRegistry at Machakos forthwith.
p. 4Final orders/disposition

Issues in the judgment

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minor

Internal inconsistency in dates: the meeting of 17.01.2023 is elsewhere referred to as the meeting of 17.02.2023

minor

The judgment states the trial Court judgment was delivered on 17.01.2024, the same date as the summary dismissal (17.01.2023); the dismissal date is repeated as the judgment date, which may be a typographical error

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mutuma v Chaina Railway 21st Bureau Group (Kenya) Company Limited (Appeal E002 & E004 of 2024 (Consolidated)) [2025] KEELRC 726 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/726/eng@2025-03-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.