Mkalo v Githunguri Dairy Farmers Cooperative Society Limited (Appeal E024 of 2024) [2025] KEELRC 2693 (KLR)
The bottom line
#Kenya's Employment Court ruled a first-offence dismissal was too harsh and awarded an extra Kshs. 214,656 because the punishment didn't match the mistake.
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 trial magistrate erred in failing to find that the termination of the appellant's employment was unfair
- 2.Whether the dismissal was disproportionate to the offence allegedly committed
- 3.Whether the appellant was entitled to compensation for unfair termination and, if so, the appropriate quantum
Key legal issues
#Whether the dismissal was disproportionate and therefore unfair under section 45 of the Employment Act
The dismissal was disproportionate to the offence; the appellant did not originate the chain of events leading to the dismissal and had no prior disciplinary record, so the termination was unfair.
The trial court had itself found that the invoice anomaly originated with the loading clerk and not the claimant, that the claimant was a first offender, and that a warning would suffice. The appellate court agreed that the reason was therefore not a fair one within section 45(2), which incorporates proportionality. Having found unfair termination, the court assessed compensation under section 49 at eight months' salary given three years of service, a clean disciplinary record, and the fact the offence did not originate from the appellant.
Scope of first appellate review of a trial court judgment
An appeal to the ELRC from a magistrate's court is by way of retrial, but the appellate court will not interfere simply because it is clothed with jurisdiction to re-evaluate evidence; it will defer to findings supported by the operative law and a reasonable deduction of the evidence.
Relying on Gitobu Imanyara & 2 Others v Attorney General, the court restated that on retrial it must reconsider and evaluate the evidence and draw its own conclusions, while making due allowance for not having seen or heard the witnesses. It cautioned against whimsically substituting its own view for that of the trial court, holding that an imperfect but legally sound and reasonably evidence-based decision should not be disturbed. Here the trial court's finding of disproportionality was sound and was adopted.
Legal principles established
#- A dismissal and a termination have the same effect in ending the employment relationship; summary dismissal is dismissal for gross misconduct under section 44 of the Employment Act.
- Section 45 of the Employment Act incorporates the principle of proportionality by requiring that the reason for termination be a fair reason; where the penalty is disproportionate to the offence, termination is unfair and compensation should be assessed.
- Not every infraction in employment attracts dismissal; less drastic disciplinary measures such as warning, loss of privileges or surcharge may be appropriate in milder cases.
Court orders
#- 1.Finding and declaration that the appellant was unfairly terminated
- 2.Respondent ordered to pay the appellant an additional amount of Kshs. 214,656/- as compensation for unfair termination of service, in addition to the awards by the trial court
- 3.The appellant shall have the costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Githunguri
- MCRLRC No. 1 of 2020
- Jurisdiction invoked
- First appellate jurisdiction over the magistrates' court in an employment dispute; appeal by way of retrial
Relief refused
#Submissions that the disciplinary hearing was procedurally flawed/a sham such that termination was procedurally unfair
The court did not disturb the trial court's acceptance of the procedure; it rested its finding of unfairness on disproportionality of the substantive reason, and did not grant relief on procedural-fairness grounds
Costs
The appellant shall further have the costs of this 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.
The court therefore finds and holds that the appellant was unfairly terminated.
That is to say the respondent is hereby ordered to pay the appellant an additional amount of Kshs. 214,656/- as compensation for unfair termination of service.
The appellant shall further have the costs of this appeal.
The above section therefore incorporates the principle of proportionality by requiring that the reason for termination ought to be a fair reason.
Issues in the judgment
#The judgment does not state the name of the case or appeal number of the present appeal; the appeal number must be inferred from references to the memorandum of appeal dated 2nd February 2024 arising from Githunguri MCRLRC No. 1 of 2020.
The judgment inconsistently refers to the lower court case as 'MCRLRC NO. 1 of 2020' and 'MERLRC No. 1 of 2020'.
The coram spells the judge's name as 'ABUODHA NELSON JORUM' with the designation 'PRESIDING JUDGE-APPEALS DIVISION' but the judgment itself never states the name of the parties or the appeal file number.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mkalo v Githunguri Dairy Farmers Cooperative Society Limited (Appeal E024 of 2024) [2025] KEELRC 2693 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 2nd February, 2024 (ELRC Appeal from Githunguri MCRLRC No. 1 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2693/eng@2025-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.