Guni v African Marine & General Engineering & Co Ltd (Appeal E064 of 2025) [2025] KEELRC 2678 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Justification of summary dismissal for absence from duty
The summary dismissal was justified; the appellant did not seek permission and did not adequately explain the absence
Section 44(4)(a) of the Employment Act defines absence from duty as gross misconduct. The employer may require an explanation and, if unsatisfactory, impose summary dismissal. The appellant alleged attending a father-in-law's burial but sought no prior permission and returned only days later with a village chairman's letter. Authorities cited establish that once an employee is absent without permission, summary dismissal is permissible.
Entitlement to notice pay and compensation
Not available where summary dismissal is justified
Because the dismissal was for a justified reason and followed a fair procedure (notice to show cause, reply considered), the statutory remedies of notice pay and the 12 months' compensation under section 49 were unavailable. The magistrate's award of Ksh. 6,300 for unpaid days worked stood.
Certificate of service
Due subject to compliance with section 51 procedures
The court found a certificate of service was due but conditional on the appellant following the procedures outlined in section 51 of the Employment Act. The appeal otherwise failed and the trial judgment was affirmed.
Standard of review on first appeal
Court may reassess evidence but defers to credibility findings
As a first appeal, the court is entitled to reassess, review and reach its own conclusions on the record. However, lacking the advantage of observing witness demeanour, it should be reluctant to disturb findings that turn on credibility unless compelling grounds exist, per Top Tank Company Limited v Amos Ondiek Wandaye.
Legal principles established
#- On a first appeal the court reassesses the evidence but should be reluctant to upset findings turning on witness credibility absent compelling grounds
- Absence from duty without permission constitutes gross misconduct justifying summary dismissal where the employee's explanation is unsatisfactory
Court orders
#- 1.The appeal is dismissed as without merit
- 2.Judgment in Mombasa MCELRC No. E086 of 2022 is affirmed (recited in the order as 'MCELRC No. E087 of 2022')
- 3.No orders on costs
- On appeal from
- Magistrates' Court (ELRC), Mombasa
- Mombasa MCELRC No. E086 of 2022
- Jurisdiction invoked
- First appeal to the ELRC from the magistrate's court under the Employment Act / ELRC jurisdiction (not expressly cited in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Guni v African Marine & General Engineering & Co Ltd (Appeal E064 of 2025) [2025] KEELRC 2678 (KLR)", Case Analysis (2025). Mombasa ELRC Appeal (judgment delivered 2 October 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2678/eng@2025-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.