A.O. Bayusuf & Sons Limited v Boniface Oloo Wesonga
The bottom line
#Kenya's Employment Court upheld a Kshs. 688,154 award against an employer that fired a driver over a fuel shortage without a fair hearing or solid evidence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.The suspension of the Respondent, and whether the learned magistrate was entitled to find that he had been constructively dismissed
- 2.Whether the termination of the Respondent's employment was procedurally fair
- 3.Whether the termination was substantively justified
- 4.Whether the reliefs challenged were properly awarded
- 5.Costs
Key legal issues
#Whether the Respondent was constructively dismissed
The finding of constructive dismissal was erroneous; the cause of action was never pleaded and was mutually exclusive with the pleaded case of dismissal by the employer
Constructive dismissal requires pleading of the term breached, the repudiatory conduct, and the employee's acceptance of the repudiation by leaving. The Respondent pleaded that the Appellant terminated his employment; it was common ground the employment ended by the Appellant's letter of summary dismissal. An employee cannot at once have been dismissed and have left in acceptance of repudiation. The finding could not stand, though it did not affect the outcome since the awards rested on the independent finding of unfair termination.
Whether the termination was procedurally fair
Procedurally unfair: less than a day to answer the show-cause notice, unproved WhatsApp service of the hearing invitation, some twenty-two hours' notice of the hearing, and no hearing at all
The screenshot of the WhatsApp message info did not show the recipient, and the Respondent's unchallenged evidence was that the number used was not on WhatsApp. Even on the Appellant's best case, notice of the hearing was about twenty-two hours, mostly on a Sunday, inadequate for a charge of such gravity. RW1 conceded no hearing was conducted and there were no minutes. The Respondent's written explanation was not considered in the dismissal letter.
Whether the termination was substantively justified
Not substantively justified; the Appellant failed to prove a valid and fair reason under sections 43 and 45(2)
The Respondent denied and explained the shortage, blaming the consignee's tank, yet the Appellant produced no consignee correspondence, no dip or ullage readings, and no investigation report despite suspending him for two months for that purpose. The management team that intervened at the consignee's premises were not called, and an adverse inference was drawn. Suspicion alone does not satisfy the test of reasonable grounds; the belief must rest on evidence fairly weighed against the employee's explanation.
Whether the awards of notice pay, compensation and refund of deductions were properly made
All three awards properly made; section 44 summary dismissal unavailable absent proven gross misconduct through a fair process, and the commitment letter could not justify blanket deductions
Notice pay was due under the contract and section 35(1)(c), founded independently of constructive dismissal. The six months' compensation was a measured exercise of discretion under section 49 with relevant factors considered. The deductions predated the commitment letter, which authorised recovery only from annual leave or terminal benefits, did not quantify losses, and could not confer a deduction power the statute does not give.
The propriety of the memorandum of appeal
The memorandum repeated complaints, embedded argument and contained errors, but the court considered the substance of every ground
Grounds of appeal must set forth concisely and under distinct heads the grounds of objection without argument or narrative, per Order 42 rule 1(2). The memorandum fell into these errors, including misdating the termination letter and describing the compensation award as nine months' when it was six. Access to justice should not turn on the craftsmanship of a memorandum, so the substance of every ground was considered.
Legal principles established
#- An indefinite suspension without pay, attended by no communication and no evident investigation, may be an unfair labour practice and repudiatory
- Constructive dismissal is a distinct cause of action that must be pleaded; it cannot be built at the submissions stage
- A consent given after the event cannot render lawful a deduction that was unlawful when made, and parties cannot by consent confer a statutory deduction power on the employer
- The employer bears the burden of proving service of a disciplinary invitation; the employee need not disprove it
Court orders
#- 1.The appeal is dismissed
- 2.The finding of the trial court that the Respondent was constructively dismissed is set aside; the finding that his employment was unfairly terminated is upheld
- 3.The Judgment and Decree of the Principal Magistrate's Court at Mombasa delivered on 28th October 2025 in Mombasa MCELRC No. E804 of 2023, including the award of Kshs. 688,154.75 together with costs and interest, is otherwise upheld in its entirety
- 4.The Appellant shall bear the Respondent's costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court at Mombasa
- Mombasa MCELRC No. E804 of 2023
- Jurisdiction invoked
- First appeal from the subordinate court under the Employment and Labour Relations Court Act; duty of first appellate court to reconsider evidence
Relief refused
#Appellant's prayer that the termination be held fair and procedural and that the awards of notice pay, compensation and the refund of Kshs. 226,205 be set aside
The Appellant failed to prove a valid reason and fair procedure; the termination was both substantively unjustified and procedurally unfair
Costs
The Appellant shall bear the Respondent's costs of this appeal; the trial court's award of costs and interest to the Respondent upheld
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.
(a) The appeal is dismissed.
(b) The finding of the trial court that the Respondent was constructively dismissed is set aside. The finding that his employment was unfairly terminated is upheld.
(d) The Appellant shall bear the Respondent's costs of this appeal.
An investigatory suspension of that kind is not a punishment. It is a holding measure, taken so that the truth can be ascertained.
The law does not countenance an employer holding an employee in that state for as long as it pleases.
It is no part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings.
Parties to a contract of employment cannot, by consent, confer on the employer a power of deduction that the statute does not give.
Issues in the judgment
#Judgment delivery date of 30th September 2026 is inconsistent with the appeal number of 2025 and the April 2026 submissions timeline
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "A.O. Bayusuf & Sons Limited v Boniface Oloo Wesonga", Case Analysis (2026). ELRC Appeal No. E220 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2745/eng@2026-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.