Warren Enterprises Ltd v Oyido

v. The Learned Magistrate erred in law and in fact by holding the Respondent did not have enough time to look for a fellow employee to accompany her to the disciplinary hearing despite robust evidence on record by the Appellant that the Respondent waived her right to be accompanied by a witness. vi. The Learned Magistrate erred in law and in fact by holding that the Respondent was coerced during the disciplinary process despite this being an allegation that was not proved by the Respondent. vii. The Learned Magistrate erred in law and in fact by holding that the Respondent was not paid her statutory dues despite there being evidence tabled by the Appellant conrming payment of the Appellant's dues in full. viii. The Learned Magistrate erred in law and in fact by holding that the Respondent was entitled to Kshs. 37,086/- for the month of June, 2021 despite evidence that her employment was terminated on 12th June, 2021. ix. 9. The Learned Magistrate erred in law and in fact by failing to consider the acts of gross misconduct by the Respondent, specically, obtaining Kshs.6,000/cash each week to purchase 12 bottles of 18.9 liters of water where the actual cost was Kshs. 3,000/-. x. The Learned Magistrate erred in law and in fact by holding that there was procedural unfairness in terminating the Respondent whereas the Appellant had tabled enough evidence conrming that all the due process and procedure were adhered to prior to termination of the Respondent’s employment. xi. The Learned Magistrate erred in law and in fact by holding that the Respondent had been unfairly and unlawfully dismissed from employment despite the Appellant following the legal procedure in dismissing the Respondent from employment. 3. The Appellant prayed that the Appeal be allowed with costs, the Judgment of the trial court made on 6th December 2024 and consequential orders thereto be set aside with costs to the Appellant. 4. The Appeal was disposed of by written submissions. Both parties complied. Appellant’s Submissions 5. The Appellant’s Advocates Kale Maina & Bundotich Advocates LLP led written submissions dated 26th November, 2025 and on the issue of whether the notice issued to the Respondent to attend the disciplinary hearing was too short, the Appellant submitted that the trial court erred in nding that the notice was inadequate. It submitted that the Respondent was issued with a Notice to Show Cause dated 2nd June 2021, to which she responded on 4th June 2021. She was thereafter invited to a disciplinary hearing by a letter dated 7th June 2021, informing her that the hearing would take place on 9th June 2021 at 10.00 a.m. The Appellant submitted that the Respondent therefore had 48 hours to prepare for the hearing and that she admitted this during cross-examination. It argued that the trial court’s nding that she did not have sucient time to prepare or to look for an employee to accompany her was therefore awed. 6. On the issue of whether the 48 hours’ notice was sucient, the Appellant relied on Ombajo v Institute of Certied Public Accountants of Kenya (ICPAK) (Civil Appeal No. 62 of 2018) [2022] KECA 1360 https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2484/eng@2026-09-22 2

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(KLR), which had been relied upon by the trial court, and Patrick Abuya v Institute of Certied Public Accountants of Kenya (ICPAK) & another [2015] KEELRC 154 (KLR). It submitted that in those cases the employees had been given substantially shorter notice, being from 3.00 p.m. to the following morning in Ombajo, and about 30 minutes in Patrick Abuya. The Appellant therefore contended that there was a material dierence between those cases and the present case, where the Respondent had 48 hours’ notice. It submitted that no inference of unfair termination could properly be drawn from the circumstances of the present case. 7. On the issue of whether the Respondent had complained about the short notice, the Appellant submitted that she did not inform it that the notice was inadequate or request more time. It relied on her admission during cross-examination that she did not tell the Appellant that the notice was short. The Appellant further submitted that, unlike in Ombajo, where the employee had expressly complained about the short notice and requested additional time, the Respondent made no such request. It therefore argued that it was unfair to fault the Appellant for a matter of which it was unaware and described the Respondent’s complaint that the short notice prevented her from preparing or procuring a witness as an afterthought. 8. On the issue of whether the Respondent had pleaded that she lacked sucient time to prepare for the disciplinary hearing, the Appellant submitted that parties are bound by their pleadings and that submissions do not constitute pleadings. Relying on Joan Koech & 3 others v Swissport Kenya Limited [2021] eKLR, it submitted that the Respondent had not pleaded that the short notice prevented her from adequately preparing for the hearing. It therefore argued that the trial court erred in relying on this issue when determining that the termination was unfair. 9. On the issue of the Respondent’s opportunity to be accompanied by an employee or other witness, the Appellant submitted that the trial court also erred in nding that she did not have sucient time to look for an employee to accompany her. It argued that the letter dated 7th June 2021 informed her that she could bring a witness, preferably an employee, and that the minutes of the disciplinary hearing showed that she waived that right. The Appellant further submitted that the Respondent admitted that she had not been told that the witness had to be an employee. It therefore contended that she could have attended with a witness who was not an employee. The allegation that she could not procure a witness because of lack of time or fear that a colleague would lose their job was, according to the Appellant, unsubstantiated. 10. On the issue of whether the Respondent was unfairly terminated from employment, the Appellant submitted that the trial court’s nding was based on two matters, namely the alleged short notice and alleged coercion during the disciplinary process. On the allegation of coercion, the Appellant submitted that the Respondent had not pleaded that she was coerced into signing the minutes of the disciplinary hearing. It argued that the allegation was raised during re-examination and in the closing submissions. The Appellant maintained that it had nevertheless opposed the allegation in its closing submissions before the trial court. 11. On the issue of proof of coercion, the Appellant submitted that, in any event, the Respondent had not met the required standard of proof. Relying on Patel & another v MJC & another (Suing as the guardians of PJP) (Civil Appeal No. 182 of 2019) [2022] KECA 364 (KLR), it submitted that allegations of coercion, undue inuence and fraud must be specically pleaded and proved by cogent evidence to a standard higher than a balance of probabilities but slightly below proof beyond reasonable doubt. It further relied on Mwaura v Taxify Kenya Limited (ELRC Cause No. 173 of 2019) [2023] KEELRC 1849 (KLR), where the Court held that allegations of coercion and undue inuence must be supported by cogent evidence. The Appellant submitted that the Respondent had failed to meet that standard and had therefore not proved that she was coerced into signing the minutes. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2484/eng@2026-09-22 3

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12. On the issue of whether the legal procedure for termination was followed, the Appellant submitted that section 41 of the Employment Act requires an employee to be informed of the reason for the proposed termination and given an opportunity to be heard. It argued that the Respondent was issued with a Notice to Show Cause dated 2nd June 2021 setting out the allegation that she obtained Kshs. 6,000 each week to purchase 12 bottles of 18.9 litres of water for the production sta, when the actual cost was Kshs. 3,000, resulting in an alleged loss of Kshs. 144,000 between March 2020 and May 2021. She responded to the notice on 4th June 2021, was invited to the disciplinary hearing by the letter dated 7th June 2021, attended the hearing on 9th June 2021, and signed the minutes on 10th June 2021. The Appellant therefore submitted that the requirements of section 41 had been met. 13. On the issue of the disciplinary hearing minutes, the Appellant submitted that in the absence of pleading and proof of coercion, the contents of the minutes could stand. It submitted that the minutes recorded that the Respondent purchased the water from Crystal Springs Kasarani, admitted to the gross misconduct and requested to be pardoned, although she disputed the amount allegedly owed. It further submitted that the Respondent did not produce receipts and admitted during crossexamination that she did not oppose the minutes. The Appellant therefore argued that there was no basis for the trial court to nd that she had been unfairly terminated, particularly after nding that the requirements of section 41 had been complied with. 14. On the issue of whether the Respondent was entitled to the prayers granted by the trial court, the Appellant submitted that the Respondent was not unfairly or wrongfully terminated and that the award of Kshs. 296,688 should therefore be set aside. 15. On the issue of salary for June 2021, the Appellant submitted that the Respondent worked for only 12 days in June 2021 as her employment was terminated by a letter dated 12th June 2021. It therefore submitted that any salary due for June should only cover the period worked up to 12th June 2021. 16. On the issue of one month’s salary in lieu of notice, the Appellant submitted that the Respondent was not entitled to notice pay because she was summarily dismissed under section 44 of the Employment Act. Relying on section 44(4)(g), it submitted that summary dismissal may be justied where an employee commits, or is reasonably and suciently suspected of having committed, a criminal oence against or to the substantial detriment of the employer or the employer’s property. It therefore maintained that the Respondent was not entitled to one month’s pay in lieu of notice. 17. On the issue of leave for one year, the Appellant submitted that during cross-examination the Respondent stated that she had gone on o days, which the Appellant referred to as leave days. It nevertheless acknowledged that she had not taken all her leave days. The Appellant submitted that the leave earned but not taken at the time of dismissal amounted to Kshs. 21,015, which had been duly paid. 18. On the issue of whether the Respondent was paid her statutory dues, the Appellant submitted that the trial court erred in nding that there was no evidence of leave entitlement or loan default. On the issue of the loan, it submitted that the Respondent testied that she wanted her SACCO and welfare dues deducted from her nal dues. It further pointed out that she had produced a receipt from Warren/ Sasini Sacco Society Limited dated 25th June 2021 and a receipt from Warren Employee Welfare Society dated 30th April 2021. The Appellant submitted that the receipts showed the loan amounts owed and that the Respondent could not deny the loan after admitting under oath that she had taken it and producing documents in support of the same. 19. On the issue of the computation and payment of the nal dues, the Appellant submitted that the summary dismissal letter provided for payment of all days worked and unpaid as at 12th June 2021 and https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2484/eng@2026-09-22 4

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any leave earned and not taken, less advances, loans, shortages, leave taken but not earned and lawful statutory deductions. It further submitted that a receipt at page 49 of the Record of Appeal showed that the Respondent had been paid her salary and allowances up to 12 June 2021. Relying on Kinyanjui John Kangarua v Warren Enterprises Limited, ELRC E950 of 2022, it submitted that payment made towards an employee’s SACCO loan for the employee’s benet amounts to payment even where the money is not paid directly to the employee. The Appellant therefore maintained that the Respondent had been paid her statutory dues. 20. On the issue of costs, the Appellant submitted that costs follow the event and that section 27 of the Civil Procedure Act empowers the Court to award costs to the successful party. It submitted that it had demonstrated that the trial magistrate misdirected herself on substantive and procedural law, failed to properly evaluate the evidence, particularly the Respondent’s admissions and the Appellant’s contemporaneous documents, and reached a decision against the weight of the evidence and applicable legal principles. The Appellant therefore urged the Court to allow the appeal with costs. Respondent’s Submissions 21. The Respondent’s Advocates Kulecho & Co. Advocates led written submissions dated 12th April, 2026 and on the issue of whether the termination was unlawful and procedurally unfair, the Respondent submitted that the trial court correctly found that the termination was both substantively and procedurally unfair. She argued that the disciplinary process was fundamentally awed as she was issued with a notice to show cause and summoned to a disciplinary hearing within an unreasonably short period, which denied her adequate time to prepare her defence. She further submitted that the disciplinary process was a mere formality and that she was coerced into signing the minutes of the disciplinary hearing under threat of dismissal. The Appellant did not call any witness who participated in the disciplinary proceedings to controvert her evidence, but instead relied on a witness who admitted that he joined the organisation after her dismissal and had no personal knowledge of the events. The Respondent therefore maintained that her unchallenged evidence ought to have been believed. 22. On the issue of the notice given for the disciplinary hearing, the Respondent submitted that procedural fairness is a substantive right under section 41 of the Employment Act and is not a mere technicality. She contended that she was invited to a disciplinary hearing scheduled for 9th June 2021 by a letter dated 7th June 2021, thereby giving her only one day to prepare. Relying on Anthony Mkala Chitavi v Malindi Water & Sewerage Co. Ltd, Industrial Court Cause No. 66 of 2012, she submitted that an employee must be informed of the charges, given adequate time to prepare a defence and aorded an opportunity to be heard before a decision to terminate is made. She therefore maintained that the trial court correctly found that the requirement of procedural fairness had not been met. 23. On the issue of whether the adequacy of the notice was properly before the trial court, the Respondent submitted that the Appellant’s argument that insucient preparation time had not been pleaded was irrelevant and misleading. She argued that her case before the trial court was based on lack of a fair hearing, which inherently included the adequacy of the notice and the opportunity to prepare a defence. She submitted that the evidence led at trial suciently addressed the issue and that the trial court was entitled to make a nding on it. 24. On the issue of the validity of the reason for termination, the Respondent submitted that she was dismissed by a letter dated 21st June 2021 on allegations of theft of the employer’s property, which amounted to gross misconduct. She argued that no evidence was presented during the disciplinary hearing to substantiate the allegations. Relying on sections 43 and 45 of the Employment Act, she submitted that the burden was on the Appellant to prove that the reason for termination was valid and fair. She contended that the Appellant did not produce any audit report, receipts, investigative evidence https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2484/eng@2026-09-22 5

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or witness testimony to establish nancial impropriety. She further submitted that the alleged purchase of water at Kshs. 6,000 instead of Kshs. 3,000 did not establish theft, particularly as the matter was not reported to the police. She maintained that the price of water was not static and that any balance from the purchases was used as petty cash. The allegation of theft was therefore, in her view, unsubstantiated. 25. On the issue of the disciplinary process, the Respondent submitted that the process contravened the applicable labour laws, the rules of natural justice and the right to a fair hearing under Article 50 of the Constitution. Relying on Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited, Cause No. 74 of 2013, she submitted that an employee must be taken through the mandatory process under section 41 of the Employment Act in every case of termination, including summary dismissal. 26. On the issue of whether the Court should interfere with the damages awarded, the Respondent submitted that an appellate court should not ordinarily interfere with the exercise of judicial discretion by a trial court. Relying on Said Sweilem Gbeithan Saanum v Commissioner of Lands (being sued through the Attorney General) & 5 others [2015] eKLR and Mrao Ltd v First American Bank of Kenya Ltd & 2 others (2003) KLR 125, she submitted that interference is only justied where the trial court misdirected itself on the law, misapprehended the facts, took into account matters it ought not to have considered, failed to take into account relevant matters, or arrived at a plainly wrong decision. She maintained that none of these circumstances had been demonstrated. 27. On the issue of payment of terminal dues, the Respondent submitted that the Appellant had not produced credible evidence to establish that she had been paid her terminal dues. She argued that although the Appellant contended that the dues had been used to oset SACCO obligations, no evidence of the alleged deductions, policy authorising them or legal basis for doing so was produced. She therefore submitted that the unilateral deduction of her salary and dues was unlawful and unjustied. She maintained that the trial court correctly awarded her salary for June 2021, notice pay and accrued leave in the absence of proof of payment. She further submitted that the fact that termination occurred mid-month did not disentitle her to salary for the period worked in June 2021. 28. On the issue of the award of eight months’ salary as compensation, the Respondent submitted that the trial court properly exercised its discretion under section 49(1)(c) of the Employment Act. She argued that the trial court considered her twelve years of long and unblemished service, the absence of a valid reason for termination and the procedural unfairness surrounding her dismissal. Relying on Kenfreight (EA) Limited v Benson K. Nguti [2016] eKLR, she submitted that the award was within the trial court’s discretion and that there was no basis for this Court to interfere with it. 29. The Respondent therefore urged the Court to uphold the decision of the trial court and dismiss the appeal with costs. Determination 30. The court has considered the grounds in the Appeal, the Record of Appeal and submissions led by the parties herein and ags the following as the issues for consideration in the appeal namely: _ a. Whether trial court erred in nding that the notice issued to the Respondent to attend the disciplinary hearing held on 9th June 2021 was short notice. b. Whether the trial court erred in nding that the Respondent was unfairly terminated. c. Whether the trial court erred in granting the Respondent the reliefs sought. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2484/eng@2026-09-22 6

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Whether Trial Court Erred in Finding that the Notice Issued to the Respondent to Attend the Disciplinary Hearing held on 9th June 2021 was Short Notice. 31. I will go direct to the matter at hand. The trial court found that the notice inviting the Respondent to the disciplinary hearing within forty-eight (48) hours was too short. In arriving at this nding, the trial court relied on the Court of Appeal decision in Ombajo v Institute of Certied Public Accountants of Kenya (ICPAK) (Civil Appeal 62 of 2018) [2022] KECA 1360 (KLR). The Appellant takes issue with that nding. Its contention is that the circumstances in the Ombajo case were materially dierent from those in the present case. In the Ombajo case, the employee was given less than a day to prepare for the disciplinary hearing while in the present case, the Respondent was given 48 hours. 32. The Appellant believes that the fact that the Respondent never complained about the timing or even asked for a further hearing date and that she voluntarily attended the disciplinary hearing and signed the minutes, that this was sucient to prove procedural fairness. 33. The Court has considered this argument and takes note of the Appellant’s submissions including that the Respondent’s claim that she was coerced into signing the minutes was not pleaded and that she had waived her right to be accompanied by a witness. 34. At paragraph 10 of her Statement of claim dated 15th July 2022 the respondent stated that:“ 10. The Claimant states that disciplinary hearing notice was too short eected in less than 48 hours and even though she tried to avail himself for the meeting it was all in vain as her fate was already pre-determined as it barely lasted for 30 minutes. (Annexed herewith and marked MAO-6 is a copy of minutes of the meeting) 35. Section 41 of the Employment Act requires an employer, before terminating or summarily dismissing an employee on grounds of misconduct, poor performance or physical incapacity, to explain the reasons for the proposed termination in a language the employee understands, allow the employee to be accompanied by a fellow employee or shop oor union representative of their choice, and give the employee an opportunity to be heard and to have their representations considered before the decision is made. 36. When a hearing is conducted the law envisages that the process must be fair. Section 4 (3) of the Fair Administrative Actions Act (Article No 4 of 2015) states as follows: “ 4. Administrative action to be taken expeditiously, eciently, lawfully etc. 1. Every person has the right to administrative action which is expeditious, ecient, lawful, reasonable and procedurally fair. 2. Every person has the right to be given written reasons for any administrative action that is taken against him. 3. Where an administrative action is likely to adversely aect the rights or fundamental freedoms of any person, the administrator shall give the person aected by the decisiona. prior and adequate notice of the nature and reasons for the proposed administrative action; https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2484/eng@2026-09-22 7

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b. an opportunity to be heard and to make representations in that regard; c. notice of a right to a review or internal appeal against an administrative decision, where applicable; d. a statement of reasons pursuant to section 6; e. notice of the right to legal representation, where applicable; f. notice of the right to cross-examine or where applicable; or g. information, materials and evidence to be relied upon in making the decision or taking the administrative action. 4. The administrator shall accord the person against whom administrative action is taken an opportunity to- a. attend proceedings, in person or in the company of an expert of his choice; b. be heard; c. cross-examine persons who give adverse evidence against him; and d. request for an adjournment of the proceedings, where necessary to ensure a fair hearing. 5. Nothing in this section, shall have the eect of limiting the right of any person to appear or be represented by a legal representative in judicial or quasi-judicial proceedings. 6. Where the administrator is empowered by any written law to follow a procedure which conforms to the principles set out in Article 47 of the Constitution, the administrator may act in accordance with that dierent procedure.” 37. The trial court in nding that the Appellant did not conduct a fair and procedural disciplinary hearing on account of short notice relied on the Court of Appeal case of Ombajo v Institute of Certied Public Accountants of Kenya (ICPAK) (Civil Appeal 62 of 2018) [2022] KECA 1360 (KLR). 38. Which held as follows; “ Disciplinary proceedings are a grave matter for an employee as the consequences may be catastrophic to the employee’s life. In the case of the appellant, the complaints against him were serious, and there is no doubt that he needed sucient time to prepare psychologically, and if need be, get the best advice that he could. Any prejudice to the respondent by having the appellant in his place of work could easily have been addressed by sending the appellant on compulsory leave, or interdicting him during the pendency of the disciplinary hearing, so that both the appellant and the respondent would have had time to reect on and prepare to address the issues arising in the disciplinary process. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2484/eng@2026-09-22 8

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The fact that the appellant nonetheless, did his best to respond to the allegations made against him and attended the disciplinary proceedings on the due date, did not ameliorate the prejudice that was caused to him by the inadequate notice. It was oppressive, unfair, and unjust, for the respondent to serve the appellant with a letter for a disciplinary hearing that was to take place the next morning. Such haste reduced the disciplinary hearing to a mere formality to achieve that which the respondent had already predetermined. There was no procedural justice and this vitiated the whole disciplinary process.” 39. The court agrees with the Appellant that the facts in the Ombajo case were discernable from those in the present case. However, the principle still remains the same that where an employee is called upon to attend disciplinary proceedings which may result in the loss of his or her employment and livelihood, such a process cannot be rushed, the employee must be given sucient time to prepare. 40. In the present case, the allegations against the Respondent were set out in the Notice to Show Cause dated 2nd June 2021, theft of employer’s property. That the Respondent had been obtaining Kshs. 6,000 each week from the Appellant to purchase 12, 18.9 litre bottles of water for the sta, essentially double charging as the actual cost was Kshs. 3,000, resulting in an alleged loss of Kshs. 144,000/between March 2020 and May 2021. 41. The Respondent responded to the allegations on 4th June 2021 and on 7th June 2021 was invited to attend a disciplinary hearing scheduled on 9th June 2021 which she did as scheduled. The letter inviting her to the hearing informed her of her right to be accompanied by a witness “preferably” an employee. The minutes of the disciplinary hearing are part of the record. 42. The Respondent attended the hearing and was given an opportunity to respond to the allegations made against her. The record also showed that she was informed of her right to have a witness and that she waived that right. That she admitted to double charging the Respondent, asked the company for a pardon, that she was ready to refund the money, however, she did dispute the amount Kshs. 144,000/not being the correct sum owed. 43. The minutes of the disciplinary hearing were prepared and signed by the Respondent on 10th June 2021. The court agrees and nds the claim that the Respondent was coerced to sign them was not pleaded and as such should not have been an issue in determination by the trial court. 44. Equally the Court nds that 48 hours is not sucient time to prepare for disciplinary hearing. I am guided by the court in the case of Simon Mulo Odipo v Nairobi Women’s Hospital [2022] KEELRC 872 (KLR) where it was held that; “ A rushed hearing cannot amount to a fair hearing. There is no urgency in a matter, that permits an Employer to sidestep the demands of industrial justice. There must reasonable time given to an Employee to respond to letter to show cause and to defend himself at the disciplinary hearing.” 45. And equally I am guided by the case of Gibendi v Bank of Africa Kenya Limited (Cause 273 of 2018) [2023] KEELRC 1210 (KLR) (18 May 2023) (Judgment) where it was held as follows; “ Rules of natural justice and common-sense dictate that a person accused of any oence or misconduct shall be given adequate time to prepare for his defence. Such an accused person need not complain that he has not been given adequate time before or during the hearing. It is incumbent upon an employer to ensure that an employee is given adequate time to prepare for the hearing. In this case the Claimant was emailed at 7:49pm on 21st June, 2017 to appear https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2484/eng@2026-09-22 9

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for a hearing on 23rd June, 2017. The Claimant testied that he received the email on 22nd June, 2017. There is no way that such a short notice can be deemed to have been adequate. It does not matter that the Claimant did not complain about the shortness of the notice during the disciplinary hearing. It is amazing that RW3, a human resources practitioner, thinks that such a procedure was okay. It is the opinion of this court that unless for a good reason, which should be indicated in the show-cause letter or the notice of disciplinary hearing, an employee should be granted at least seven clear days to prepare for his defence before appearing for the disciplinary hearing. The Claimant was on suspension already as at the time of the disciplinary hearing. What was the emergency or hurry in having an urgent disciplinary hearing? None.” 46. Furthermore, it is not lost on this court that the decision in Ombajo remains binding on this Court. The Court therefore nds that the notice by the Appellant inviting the Respondent for the disciplinary hearing was short goes against the rules of natural justice and the trial court cannot be faulted for reaching that conclusion. Whether the Trial Court Erred in Finding that the Respondent was Unfairly Terminated. 47. Section 45 (2) of the Employment Act 2007 provided as follows: “ (2)A 48. termination of employment by an employer is unfair if the employer fails to prove— a. that the reason for the termination is valid; b. that the reason for the termination is a fair reason— related to the employees conduct, capacity or compatibility; or i. based on the operational requirements of the employer; and ii. that the employment was terminated in accordance with fair procedure”. In Ogueno v Karunja & another [ 2023] KEELRC 2683 [KLR], the Court stated: “ The Respondents, being the employer in this case, had the heaviest responsibility in terms of proof. Therefore, they had the onus of proving that the reasons leading to the Claimant’s termination were fair, valid and related to his conduct, capacity and compatibility. As it is, the Respondent did not adduce evidence in whatever form or manner, hence it did not discharge its burden to that extent.” 49. Although the court nds that the Appellant had a valid reason for terminating the Respondent’s employment, the failure to follow a fair procedure renders the termination unfair within the meaning of Section 45 of the Employment Act. Whether the Trial Court Erred in Granting the Respondent the Reliefs Sought. 50. In light of the nding that the termination was unfair, the Respondent was entitled to the remedies available under sections 49 and 50 of the Employment Act however in assessing the compensation payable under section 49(1)(c) of the Employment Act, the Court must take into account the circumstances in which the termination occurred. In this case, although the procedure followed by https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2484/eng@2026-09-22 10

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the Appellant was found to be unfair, there was a valid reason for the termination. The unfairness therefore arose from the procedure and not from the reason for termination. The procedural lapse and considering that the respondent never raised it and or asked for more time to prepare must not be lost sight of. In the circumstances a nominal award of one month’s salary would be reasonable in the circumstances. That is to say Kshs. 37,086/51. With regards to award for the salary of June, the court nds it necessary to interfere with the same and award only the 12 days worked in the month of June, 2021, as the same was not contested. The Claimant is awarded Kshs. 14,834.40 52. With regard to the award for accrued leave, the court notes that the summary dismissal letter dated 12th June 2021 stated as follows; In this regard your nal dues will be calculated below; 1. All days worked and not paid as at 12th June 2021. 2. Any leave earned and not taken. This will be paid less; 53. 1. Less any advances, loans or an shortages in your case, 2. Any leave take and not earned. 3. Less any statutory deductions that may be lawfully eect. The Appellant has presented evidence of a payslip for April 2021, the contents of which have not been contested, indicating that an amount of Kshs 21, 015/- had been paid to the Respondent for leave days earned but not taken as at 30th June 2021. Therefore, the award is accordingly set aside. Deductions for SACCO Dues 54. With regard to the deductions for the SACCO and welfare dues, the Court has considered the evidence on record. Pursuant to Section 17 and 19 of the Employment Act, 2007 an employer is authorised to make a deduction and remit to a third party any amount that the employee owes at the end of employment pursuant to an agreement during the pendency of such employment. Such loan due to a Sacco by virtue of employment and secured through a salary is a lawful deduction at source by the employer. I am guided by the case of (JDL v Daystar University (Cause 1850 of 2017) [2022] KEELRC 4123 (KLR) (25 April 2022) (Judgment). 55. Having presented receipts of the same, the Court is therefore satised that the Appellant was entitled to take into account the outstanding SACCO and welfare dues in computing the Respondent’s nal dues. 56. In the premises, the Appellant’s appeal succeeds in part. Thus; a. The nding of the learned trial Court that the termination of the Respondent’s employment was both substantively and procedurally unfair is hereby set aside. In place thereof, this Court nds that the termination was substantively justied but procedurally unfair. b. One month’s salary in lieu of notice 37,086/- https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2484/eng@2026-09-22 11

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57. c. The award of compensation for unfair termination pursuant to section 49(1) (c) of the Employment Act is hereby reviewed and reduced to 1 month’s gross salary, being Kshs. 37,086/- d. The award of salary for June 2021 is hereby set aside and substituted with an award of Kshs. 14,834.40, being salary for the 12 days worked. Total monetary compensation Kshs. 89,006/40 e. The award for accrued leave is hereby set aside. f. Interest on the sums awarded under paragraphs (b) and (c) above shall be at court rates from the date of the judgment of the lower Court until payment in full. g. The Appeal being partially successful, each party shall bear their own costs of the appeal. It is so ordered. DATED AT NAIROBI THIS 22ND DAY OF SEPTEMBER, 2026 DELIVERED VIRTUALLY THIS 22ND DAY OF SEPTEMBER, 2026 ABUODHA NELSON JORUM JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2484/eng@2026-09-22 12

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