Roben Aberdare Limited v Merabe (Appeal E029 of 2024) [2025] KEELRC 1881 (KLR)
The bottom line
#An employer in Kenya must still trace and hear an employee before dismissing them for absconding, or the dismissal will be procedurally unfair.
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 respondent was dismissed on 28th September or 18th October 2023.
- 2.Whether the dismissal of the respondent was fair and lawful.
- 3.Whether the reliefs awarded should stand.
- 4.Whether the appellant is entitled to the prayer for Kshs.47,421 for lost fuel.
Key legal issues
#Date and validity of the reason for dismissal
The respondent was dismissed on 18th October 2023 for absconding, and that reason was valid under section 44(4)(a) of the Employment Act
The appellant pleaded that it only served a show cause letter on 28th September 2023 and dismissed the respondent for absconding on 18th October 2023. The respondent filed no reply and did not deny absconding in evidence. On a balance of probability the court accepted the show cause letter was served and that the dismissal decision was for absconding, a valid reason under section 44(4)(a).
Procedural fairness of the dismissal
The dismissal was procedurally unfair because the respondent was never accorded a hearing before the decision to dismiss for absconding
Section 41 of the Employment Act obliges an employer to hear the employee before termination or summary dismissal. The employer did not demonstrate any effort to trace the respondent - no evidence of phone calls, emails or letters inviting him to a hearing. Following Mombasa Coffee Limited v Shuke, the absconding allegation could not justify dismissal without such demonstrated effort.
Whether the trial court's awards should stand
The awards of compensation, notice pay, certificate of service, costs and interest were reasonable and remain undisturbed
The respondent worked only one and a half years and no misconduct was proved; three months' salary compensation of Kshs.66,000 was reasonable and not shown to be excessive. Notice pay was supported by the appointment letter and section 35(1)(c). There was no cross-appeal on dismissed heads, and the certificate of service is justified under section 51.
Appellant's counter-claim for Kshs.47,421 for lost fuel
The claim failed as unproven on a balance of probability
The trial court erred in not addressing the prayer, so the first appellate court considered it. However, the fuel report covered the whole of September including days the respondent had absconded, his objection about incorrect locations was unrebutted, and the report did not show how the 243.13 litres allegedly siphoned was computed. The claim was therefore not proved.
Legal principles established
#- An employer contemplating dismissal of an absconding employee must make reasonable efforts to trace and hear the employee before deciding dismissal
- Statutory deductions on awards under section 49 of the Employment Act operate by operation of law without need for a court order
Court orders
#- 1.Finding that the dismissal of the respondent was unfair (on procedure) but the reason for dismissal (absconding) was valid
- 2.The reliefs awarded by the trial court (compensation of Kshs.66,000, salary in lieu of notice of Kshs.22,000, certificate of service, costs and interest) shall stand
- 3.The appellant's claim/counter-claim for Kshs.47,421 for lost fuel fails for lack of proof
- 4.The appeal is dismissed save for the finding on the reason for dismissal
- 5.No costs of the appeal awarded
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court, Othaya (Employment and Labour Relations Cause)
- E018 of 2023
- Jurisdiction invoked
- First appeal to the ELRC against the judgment of the Principal Magistrate's Employment and Labour Relations Cause
Relief refused
#Setting aside the trial court's judgment and dismissal of the respondent's claim
The court found the dismissal procedurally unfair and the awarded reliefs reasonable
Appellant's prayer for Kshs.47,421 for lost fuel
The fuel report did not prove how the alleged 243.13 litres siphoned was computed
Setting aside the award for failure to subject it to statutory deductions
Section 49(2) of the Employment Act itself commands statutory deductions and needs no court order
Costs
No costs - 'I award no costs since the appellant has partially succeeded.'
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, and save for the issue of the reason for the dismissal, the appeal is dismissed. I award no costs since the appellant has partially succeeded.
I find and hold that the dismissal was procedurally unfair because the respondent was not accorded any opportunity to defend himself as required under section 41 of the Employment Act.
On a balance of probability, I find that the appellant has discharged the burden of proving that it never dismissed the respondent on 28th September 2023 for siphoning fuel but rather served him with a show cause letter and then he absconded work.
I find that the appellant did not prove the claim for Kshs.47,421 against the respondent on a balance of probability and it fails.
the employer is legally obliged to trace the employee through his known address and invite him to a hearing. If the employer fails to reach the employee after reasonable efiort, a dismissal can be decided.
Issues in the judgment
#Judgment recites the trial court's decision date inconsistently - relief sought refers to '13th September 2004' though the cause is of 2023
The appellant is inconsistently referred to as 'respondent' when discussing the fuel claim loss
The dismissal letter's effective date (8th October 2023) differs from the pleaded dismissal date of 18th October 2023
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Roben Aberdare Limited v Merabe (Appeal E029 of 2024) [2025] KEELRC 1881 (KLR)", Case Analysis (2025). ELRC Appeal from Othaya PM ELRC Cause No. E018 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1881/eng@2025-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.