Alomba v Green Park Golf & Country Complex t/a the Great Rift Valley Lodge & Golf Resort (Civil Appeal 46 of 2019) [2025] KECA 378 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that an employer may lawfully dismiss an employee without pay who skips work without permission, provided the worker gets a genuine chance to respond.
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 appellant's summary dismissal was lawful and procedurally fair
- 2.Whether the appellant was entitled to notice pay, compensation and overtime (as grounds of appeal)
- 3.Whether this Court should disturb the discretionary findings of the trial court
Key legal issues
#Whether the appellant's summary dismissal was procedurally fair under Sections 41 and 44 of the Employment Act
The dismissal was lawful and procedurally fair. Absenteeism without leave is a lawful ground for summary dismissal under Section 44(4)(a), and the circumstances showed the appellant knew the reasons for termination and was given an opportunity to respond, which he did by submitting a medical note that the employer was entitled to reject.
The Court examined Section 44(1) and (3) and the non-exhaustive list of gross misconduct in Section 44(4), noting absenteeism without leave or lawful cause is a lawful ground for summary dismissal. It then applied the four Section 41 elements of fair procedure. Because the appellant submitted a medical note in response to the accusation of absenteeism, he could not contend he was never heard. The Court declined to substitute its own view for the learned judge's assessment of that note.
Allocation of the burden of proof in unfair termination claims
The employer must prove both substantive and procedural fairness under Sections 43, 45 and 47(5), but the employee must first lay the foundation by proving the termination was unfair or wrongful.
The Court adopted its earlier decision in Pius Machafu Isindu v Lavington Security Guards Limited, holding that the Employment Act places heavy obligations on employers in summary dismissal cases: to prove the reasons for termination, their validity and fairness, and to follow the mandatory notification and hearing process under Section 41. Section 47(5) places the burden of proving unfairness on the employee; only once that foundation is laid must the employer justify the grounds under Section 43.
Whether the Court should interfere with the trial court's exercise of discretion and fact findings
No; the Court refused to substitute its reasoning for that of the learned judge, finding no misdirection, and confined itself to the issues raised in the memorandum of appeal.
As a first appeal, the Court re-evaluated the evidence but found the trial judge had properly found that the claimant was invited to show cause and accorded due process under Sections 44 and 41(2). The appellant also failed to demonstrate that the judge misdirected herself or considered irrelevant matters. Additionally, the house allowance claim was excluded because it was not raised in the memorandum of appeal.
Legal principles established
#- Under Sections 47(5) and 45(2) of the Employment Act, the employee bears the burden of proving that dismissal was unfair or wrongful, while the employer bears the burden of justifying the grounds of termination and proving both substantive and procedural fairness.
- Section 41 of the Employment Act lays down the four minimum elements of a fair procedure before termination on grounds of misconduct.
- Procedural fairness is contextual; whether an employee was accorded a hearing is assessed objectively through the reasonable man test rather than by the strict formalities of court proceedings.
- On a first appeal, the Court must re-evaluate, re-assess and re-analyse the evidence on record, bearing in mind that it did not see or hear the witnesses, and must not introduce extraneous matters not presented at trial.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal are awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- Not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction over the Employment and Labour Relations Court (the judgment refers to 'This being a first appeal')
Relief refused
#Vacatur of the finding that the summary dismissal was lawful and justified; notice pay; compensation; overtime claim
The appellant absented himself from work without lawful cause and was accorded an opportunity to submit his defence; the trial court's findings disclosed no basis for interference
Claim for alleged unpaid house allowance of Kshs.184,000
The issue was not raised in the memorandum of appeal
Costs
The appeal was dismissed with costs to the respondent ('we find that this appeal is devoid of merit and dismiss it with costs to the respondent').
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.
In conclusion, we find no reason to fault the learned judge for finding that the summary dismissal was in accordance with the law. In the circumstances, we find that this appeal is devoid of merit and dismiss it with costs to the respondent.
When an employee claims their dismissal was unfair, the onus falls on the employer to prove that the termination was both procedurally and substantively fair
Procedural fairness is contextual in nature. The circumstances of this case suggest that he was accorded an opportunity to submit his defence, which he did, but, the respondent was not persuaded by his explanation.
Section 41 of the Act provides the minimum standards of a fair procedure that an employer ought to comply with. Four elements are required under the said Section
This being a first appeal, this Court has a duty to re-evaluate, re-assess and re- analyse the evidence on record and determine whether the conclusions reached by the trial Judge should hold bearing in mind that we did not see or hear the witnesses.
the issue of the alleged unpaid house allowance was not raised in the appellant’s memorandum of appeal. As as a result, we are precluded from entertaining the said issue.
Issues in the judgment
#The judgment records the permission to be absent as running from '28th November 2011 to 1st December 2014', which is internally inconsistent with the employment dates (5th August 2011 to 6th December 2014) and the surrounding narrative; 2011 appears to be a typographical error for 2014.
The judgment does not state its own appeal number or neutral citation, and the parties are identified only by role.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Alomba v Green Park Golf & Country Complex t/a the Great Rift Valley Lodge & Golf Resort (Civil Appeal 46 of 2019) [2025] KECA 378 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/378/eng@2025-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.