Mochorwa v Bob Morgan Services Limited (Appeal E315 of 2024) [2025] KEELRC 2639 (KLR)

Appellant’s Submissions 4. The Appellant’s Advocate Mr. Onyari submitted among others that on 11th March, 2024, the respondent’s witness alleged that the appellant stole the respondent’s client’s camera and Kshs. 75,000/- and there was evidence availed but upon cross-examination if the CCTV footage was availed during the disciplinary hearing, he stated that the same was not availed as it had been erased. Counsel further stated that the witness had no proof that the client had Kshs. 75,000/- and a camera and further that there was no proof that the respondent refunded the client the alleged Kshs. 75,000/-. 5. According to Counsel, the trial court reached the conclusion that the appellant’s termination was fair. In arriving at the decision, the trial court reasoned that there was persuasive evidence including CCTV footage of the appellant’s involvement in the theft. Further, from the minutes, it was revealed that the appellant accessed the customer’s bag which had valuable items among them the stolen items. Mr. Onyari submitted that there was no CCTV footage availed by the respondent at the disciplinary hearing to show the appellant accessed the client’s bag and the said client was never called as a witness to testify during the disciplinary hearing and even during the trial. According to Counsel, without such crucial witness and evidence, the trial court erroneously found that the appellant was terminated fairly and lawfully. 6. Mr. Onyari further submitted that both parties had difierent versions of the material event. According to the appellant, he assisted the client who according to him was drunk, to sit on a couch. He did so with the help of his colleague Mr. Ezekiel Yewa. The said client was lying down at the staircase next to the reception. He thereafter asked his colleagues who were on patrol to go and check on the persons who were with the drunk man. The family of the drunk man came and introduced themselves as the drunk man’s wife and son. The wife to the drunk man informed the appellant that they had gone for a party after which her husband (the drunk man) asked to pass by the ofice to collect some items he had left there. She further informed the appellant that they had been waiting for her husband in the upper parking lot for long and therefore decided to use the lift to the reception to look for him and found him seated on a couch at the reception. The son went and collected the car and brought the same to the reception entrance and the man was assisted to the car and they left. 7. Counsel further submitted that according to the respondent, the appellant accessed their customer’s bag which had valuable belongings. From the minutes of the disciplinary hearing of 17th February, 2015, it was narrated that on 20th December, 2014 the respondent’s client, Ms. Ann reported to the respondent’s supervisor that one of their tenants Mr. Nyambaka complained that his cash amounting to Kshs. 75,000/- and a digital camera had been stolen after he fell down at the parking when the appellant and his colleague assisted him but in the process stole the said items which were in his bag. According to counsel, these narrations were fabricated and false. If it was true that the client’s cash and camera were stolen by the appellant and his colleague, why could he not raise alarm and call for help from surrounding or even call the police yet the appellant and his colleague were still guarding the premises. Further, no complaint was made to the police by Mr. Nyambaka. 8. Mr. Onyari further submitted that respondent’s client Ms. Ann’s report to the respondent was on what she had been told by Mr. Nyamabaka was hearsay evidence. Mr. Nyambaka was the proper person to give such evidence. Counsel submitted that to conclude that there was unfair termination the court will consider the reasons for termination and the procedure adopted in the termination. The respondent’s alleged client was not called to give evidence at the disciplinary hearing and at the trial to substantiate the claim of the loss of personal items. Further, the respondent alleged that the appellant was captured on CCTV footage stealing however no such footage was adduced in evidence either at the disciplinary hearing or before the trial court. Counsel relying on the provisions of section 43 and https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2639/eng@2025-09-26 2

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45 and the cases of Muthaiga Country Club v. Kudheiha Workers [2017] and Pius Machafu Isundu v. Lavington Security Guards Ltd [2017] eKLR submitted that the respondent failed to justify the grounds for the termination of the appellant’s employment. 9. Mr. Onyari submitted that the trial court held that there was loss of cash and property of the respondent’s client while the appellant was on duty. The trial court relied on the cash voucher that was produced by the respondent as exhibit however counsel contended that a petty cash voucher cannot be used as evidence to show that theft of cash and camera happened further, it was not conclusive evidence on proof of payment without a bank statement being produced to show that the amounts indicated have been paid. 10. On the issue whether the appellant was paid his terminal dues, counsel submitted that the trial court erred in finding that this was paid. The respondent did not adduce any bank transfer or statement showing the appellant was paid terminal dues as calculated. told the trial court that he was employed by the respondent as a general worker but not issued with a letter of appointment or a payslip. 11. In conclusion Counsel submitted that the appellant is entitled to the prayers sought as he had ably demonstrated that his termination was unfair. Respondent’s Submissions 12. Counsel for the respondent Mr. Njuguna on the other hand submitted among others that a review of the CCTV footage showed that the appellant and his colleagues accessed the respondent’s client’s bag and retrieved the items involved. Further, at the disciplinary hearing, the appellant admitted that he accessed the complainant’s bag and picked a phone which was incessantly ringing. It was the same bag that the complainant said he had Kshs. 75,000/- which was stolen. According to counsel, the appeals committee was not able to review the CCTV footage as it had overwritten itself. 13. Concerning payment of terminal dues, counsel submitted that these including gratuity were processed through the appellant’s bank account at CFC-Stanbic account number 010000017128738 and proof of the appellant’s account details where the payment was made was produced. On whether the fairness of the termination was proved, Mr. Njuguna submitted that there was no basis for disturbing the trial court’s finding that the termination was fair. While relying on the provisions of section 43 of the Act, counsel submitted that the standard of proof is on a balance of probability and the reason for termination are matters that the employer at the time of termination of the contract genuinely believed to exist. To this extent counsel relied on the case of KRA v. Reuwel Waithaka Gitahi & 2 Others [2019] eKLR. Counsel further relied on the case of George Musumali v. G4S Security Kenya Ltd [2016] eKLR where the court stated that internal disciplinary proceedings are not similar to court proceedings or criminal trial where witnesses have to be called and confirm beyond reasonable doubt as to what happened. Accessing the complainant’s bag without approval of the owner met the subjective test that the appellant was involved in theft of the lost items. 14. Regarding the fairness of the procedure followed, counsel submitted that the appellant admitted attending the disciplinary hearing on 17th February, 2015 accompanied by two union representatives. This was followed by the appeal process and the summary dismissal was reduced to a normal termination. There was suficient evidentiary proof that the disciplinary mechanisms were employed and the appellant granted his rights. 15. Regarding the remedies sought, Mr. Njuguna submitted that the tabulation of the appellant’s dues were produced which showed he was paid his terminal dues. These were processed and paid into the appellant’s bank account. According to counsel, the trial Court rightly rejected the claim for https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2639/eng@2025-09-26 3

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compensation and was guided by the case of Moses Mwaniki v Ibrahim Kinyanjui Gashobe t/a Theresa General Merchants [2020]eKLR. Determination. 16. This Court as first appellate Court is guided by the principles set out in several decided cases by it or the Court of Appeal. For instance the Court of Appeal for East Africa in the case of Peters –vs- Sunday Post Limited [1958] EA 424 stated as follows: “ …the appropriate standard of review established in cases of appeal can be stated in three complementary principles: i. . First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions; ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached difierent results if it were hearing the matter for the first time. 17. This appeal revolves around the question whether the trial court erred in finding that termination of the claimant was for justifiable and valid reasons and that it was done through a fair procedure and further that the appellant had been paid his final dues. 18. The trial court concluded that the reason for dismissal was proved in that there was overwhelming evidence demonstrating that the appellant was involved in the theft of the respondent’s client’s property namely Kshs. 75,000/- and a camera. The trial court in reaching that conclusion observed that a CCTV footage was played at the disciplinary hearing showing the appellant removing the lost items from their customer’s bag. 19. In the minutes of the disciplinary found at page 81 of the Record of Appeal, it is noted as follows: “ …Robert stated that the customer’s phone was ringing incessantly inside his bag. Therefore, he decided to open and access the client’s bag without seeking consent. He asserted that he only took the phone, put it ofi then returned it back in the bag. He all this while the customer lay asleep on the ground. The panel sought to find out from Robert why he failed to wake up the customer to attend to his ringing phone…The panel also asked him to explain what it is that he picked from the customer’s bag which he never returned as captured on the CCTV footage”. 20. Whereas the appellant had claimed there was no CCTV footage during the disciplinary hearing, he again contended that the same was not replayed during the hearing of his appeal against the dismissal as the respondent stated that the system overwrites itself after some time and therefore the video was not available. If there was no CCTV footage at all, the one wonders what he required to be played at the appeal hearing. From the extract of the minutes above, the appellant stated that the customer’s phone was incessantly ringing from his bag so he accessed the bag and switched it ofi. If it was the case and this was not denied by the appellant, that the client in question was drunk and was sleeping on the fioor, one wonders why the appellant did not attempt to wake him up to answer the call and why he decided to switch it ofi. This conduct was inconsistent with somebody assigned security duties. Switching ofi https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2639/eng@2025-09-26 4

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the phone of someone in that state and that late at night meant cutting ofi communication from those who may be concerned looking for his whereabouts. 21. Concerning payment of his terminal dues, the appellant admitted that his salary was regularly paid through his Bank. The respondent stated that it paid the appellant’s terminal dues as computed into his salary account at his bank. Whereas the appellant denied receiving any such payment, he admitted not adducing his bank statement to show he never received such payment. 22. As observed in the case of Peters –vs- Sunday Post Limited [1958] EA 424, this court as an appellate court is under duty to reconsider and reevaluate the evidence on record and draw its own conclusions. However, it is not open to the Court to review the findings of a trial court simply because it would have reached a difierent result if were trying the matter for the first time. Further this court has regularly observed that in exercising the review and re-evaluation jurisdiction, it must guard against acting whimsically and replacing its view of the judgment it could have reached if it tried the matter in the first instance with the finding of the trial court. The decision of the trial court need not be perfect but provided it is in line with the operative law and a reasonable deduction of the evidence presented before it, this court will not interfere simply because as an appellate court it is clothed with jurisdiction to revaluate the evidence and come up with its own findings. 23. In addition to the observations made above, the court has carefully considered and re-evaluated the decision of the trial court and is satisfied that the findings and conclusions by the trial magistrate were reasonable and a fair deduction from the evidence presented by the parties. The Court therefore finds no justification in interfering with the same. 24. The Appeal is therefore found without merit and is hereby dismissed with costs. 25. It is so ordered. DATED AT NAIROBI THIS 26TH DAY OF SEPTEMBER, 2025 DELIVERED VIRTUALLY THIS 26TH DAY OF SEPTEMBER, 2025 ABUODHA NELSON JORUM PRESIDING JUDGE-APPEALS DIVISION https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2639/eng@2025-09-26 5

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