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ELRCPartially AllowedMalindi CMELRC No. E032 of 2021 (Appeal)

Lele v Mwaura t/a Gongoni Market (Appeal E013 of 2024) [2025] KEELRC 1076 (KLR)

Employment and Labour Relations Court
3 April 2025
MMM. Mbarũ
1,878 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that even gross misconduct dismissals need a hearing, but negligent employees can lose compensation and have damages deducted from dues.

What this practically means

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Executive summary

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This is a first appeal from the judgment of the Chief Magistrate's Court at Malindi (CMELRC No. E032 of 2021) delivered on 5 March 2024. The appellant, a driver employed by the respondent from 2 April 2019, was summarily dismissed on 15 June 2021 for gross misconduct after causing an accident while driving the respondent's vehicle KCA 387S, damaging it to the tune of Ksh. 100,000, and was criminally charged and found liable in Wanguru Civil Suit No. 107 of 2021. He appealed, contending the dismissal lacked procedural fairness under Sections 41 and 44 of the Employment Act and claiming terminal dues including compensation, notice pay, service pay, leave, shop-attendant duties, overtime and public holidays. The court held that even in summary dismissal, the Section 41(2) rights to notice and a hearing are mandatory; the respondent failed to produce the notice of disciplinary hearing and its witness could not recall one. Termination was therefore unlawful contrary to Sections 35 and 41. However, considering the appellant's poor work record and negligence under Section 45(5), zero compensation was awarded. Notice pay (Ksh. 16,000), service pay (Ksh. 16,000) and leave pay (Ksh. 26,000) were awarded; claims for shop-attendant duties, overtime and public holidays failed for lack of particularity and because a single job as driver did not support them. The dues are payable less Ksh. 100,000 owed to the respondent, and each party bears its own costs of the appeal and the trial.

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 of the appellant was procedurally fair under Sections 41 and 44 of the Employment Act
  2. 2.Whether the dismissal was substantively justified given the accident and damage to vehicle KCA 387S
  3. 3.What terminal dues (compensation, notice pay, service pay, leave pay, overtime, public holidays, extra duties) the appellant is entitled to
  4. 4.Whether the respondent could deduct Ksh. 100,000 for damage to its vehicle from the appellant's terminal dues

Key legal issues

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01

Procedural fairness in summary dismissal

Holding

Termination was unlawful because the respondent did not prove that the appellant was issued notice of a disciplinary hearing

Reasoning

Under Section 44 an employer may dismiss summarily for gross misconduct, but Section 41(2) rights must still be honoured - notice and an opportunity to make representations. The respondent did not file the notice inviting the appellant to a disciplinary hearing, and its witness could not remember when such notice was issued. External criminal proceedings against the employee do not substitute for the internal disciplinary process.

p. 3
02

Compensation under Section 45(5)

Holding

Zero compensation awarded despite unfair termination because of the appellant's poor work record and negligence causing loss of Ksh. 100,000

Reasoning

In assessing compensation the court must examine the employee's work record under Section 45(5). The appellant was not diligent, caused an accident and damage to the respondent's vehicle, and was found liable in Wanguru Civil Suit No. 107 of 2021. His conduct justified the trial court dismissing the compensation claim.

p. 3
03

Deduction for damage to employer's property

Holding

Respondent entitled to deduct Ksh. 100,000 for damage to vehicle KCA 387S from terminal dues

Reasoning

Sections 17, 19 and 20 read with Sections 44(4) and 45(5) allow the employer to deduct from terminal dues any loss or damage caused by the employee's negligence. Liability was confirmed in Wanguru Case No. 107 of 2021, so the award of notice, leave and service pay is to be paid less Ksh. 100,000.

p. 4
04

Service pay and leave pay

Holding

Service pay of Ksh. 16,000 and leave pay of Ksh. 26,000 awarded as the respondent failed to produce records

Reasoning

Under Sections 10(6) and (7) and 74 the employer must keep and file work records; no record showed statutory payments or pension membership, so service pay for two complete years is due. Similarly, no record showed the appellant took annual leave, justifying 21 days' leave computed on the basic wage of Ksh. 16,000.

p. 3

Legal principles established

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  • Even in summary dismissal for gross misconduct, the employee's rights under Section 41(2) of the Employment Act to notice and a hearing must be addressed
  • An employer may deduct from terminal dues any loss and damage caused by the employee's negligence
  • Service pay arises where the employer fails to pay statutory dues and cannot prove payments without records under Sections 10 and 74
  • Claims for extra duties as separate employment require a distinct and separate employment contract

Court orders

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  1. 1.Finding that termination of employment was unfair and unlawful contrary to sections 35 and 41 of the Employment Act
  2. 2.Notice pay of Ksh. 16,000 awarded
  3. 3.Leave pay of Ksh. 26,000 awarded
  4. 4.Service pay of Ksh. 16,000 awarded
  5. 5.Zero (0) compensation for unfair termination awarded
  6. 6.Dues to be paid less Ksh. 100,000 owed to the respondent if not paid through any other legal process
  7. 7.Each party to bear its own costs for the appeal and trial court proceedings

The bench

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

MM
majority

Wrote the judgment

On appeal from
Chief Magistrate's Court (ELRC), Malindi
Malindi CMELRC No. E032 of 2021
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's ELRC decision

Relief refused

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12 months' compensation of Ksh. 192,000

Appellant's poor work record and negligence causing loss of Ksh. 100,000 justified the trial court dismissing compensation

p. 3

Payment for extra duties as shop attendant of Ksh. 416,000

Appellant had a single job as a driver; no distinct and separate employment contract for shop duties

p. 4

Overtime pay of Ksh. 158,620

Claims exaggerated and not particularized; it is not humanly possible to work non-stop as alleged

p. 4

Payment for public holidays of Ksh. 34,440

Public holidays are special days that must be particularized in the Memorandum of Claim

p. 4

Costs

Each party is to bear its costs for the appeal and trial court proceedings.

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.

In this appeal, the court finds that there was an unfair termination of employment; the appellant is entitled to notice pay of Ksh. 16,000, leave pay of Ksh. 26,000, service pay of Ksh. 16,000, and zero (0) compensation.
p. 4Final orders - entitlements on unfair termination
These dues shall be paid less than Ksh. 100,000 is owed to the respondent if no payment is made through any other legal process. Each party is to bear its costs for the appeal and trial court proceedings.
p. 4Final orders - deduction and costs
The employee must be given a hearing to allow him to state his case on the shop fioor, even where other external procedures have been employed.
p. 3Right to be heard notwithstanding external proceedings
Employment was terminated unlawfully contrary to sections 35 and 41 of the Employment Act.
p. 3Unlawful termination finding

Issues in the judgment

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minor

Final orders are ambiguously worded regarding the Ksh. 100,000 deduction ('less than Ksh. 100,000 is owed') and no order setting aside the trial court judgment is expressly stated despite the appeal outcome

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lele v Mwaura t/a Gongoni Market (Appeal E013 of 2024) [2025] KEELRC 1076 (KLR)", Case Analysis (2025). Malindi CMELRC No. E032 of 2021 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1076/eng@2025-04-03

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