Elsa’s Kopje Limited v Mwendwa (Civil Appeal 624 of 2019) [2025] KECA 725 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that an employer who fires a worker must produce actual evidence of misconduct, or the dismissal is unfair.
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 summary dismissal of the respondent was substantively justified
- 2.Whether the learned Judge erred in granting the respondent the remedies that she did
Key legal issues
#Whether the grounds in Section 44(4) of the Employment Act are exhaustive
The grounds are not exhaustive; an employer may expand them by regulation, but in this case no such regulations or any evidence of contractual, internal regulation or industry practice grounds were produced.
The Court of Appeal in Geoffrey Gikonyo Mathu v. Intex Construction held that Section 44(4) is non-exhaustive. However, in this case the appellant pleaded gross misconduct based on express and implied contract terms, internal regulations and industry practice, yet produced none of these documents or evidence before the trial court. The pleaded reason therefore remained unproven.
Whether the employer discharged its burden under Section 43 of the Employment Act to prove the reason for termination
The employer failed to discharge its burden; the termination was therefore substantively unjustified and the ELRC finding of unfair termination was upheld.
The employment contract was not produced, nor were the internal regulations or evidence of industry practice. No evidence showed the employee required employer concurrence to pursue his legal rights against third parties. The Court accordingly upheld the Judge's conclusion that there was no valid and justified reason for the summary dismissal.
Whether the remedies awarded (one month's salary in lieu of notice and maximum 12 months' compensation) were justified
The Judge erred in not giving reasons for awarding maximum compensation, but the award was not manifestly excessive and would not be disturbed.
Relying on the Supreme Court's decision in Kenfreight (EA) Limited v. Nguti, Section 49 of the Employment Act governs remedies for unfair termination, and the discretion is limited to a maximum of 12 months' salary. The Judge's failure to justify the maximum award was an omission, but considering the circumstances of the termination, the total award of Kshs. 256,730 was not so excessive as to warrant appellate interference.
Legal principles established
#- The grounds of gross misconduct in Section 44(4) of the Employment Act are not exhaustive; employers may make regulations expanding the grounds constituting gross misconduct, but must adduce evidence of such grounds at trial.
- Under Section 43 of the Employment Act, an employer bears the burden of proving the reason or reasons for termination with evidence; failure to do so renders the termination unfair.
Court orders
#- 1.The appeal is dismissed with costs 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 judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal from the Employment and Labour Relations Court, pursuant to Rule 31(1) of the Court of Appeal Rules
Relief refused
#Setting aside or reducing the ELRC award of one month's salary in lieu of notice and 12 months' salary compensation
Although the Judge did not give reasons for awarding maximum compensation, the Court found the award not manifestly excessive in the circumstances
Costs
The appeal was dismissed 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.
This list is not exhaustive as Section 44(4) of the Employment Act allows an employer to further make regulations expanding the grounds that may constitute gross misconduct.
We accordingly uphold the conclusion by the learned Judge that Elsa’s failed to discharge its burden to prove that it had valid reason to terminate Mwendwa’s employment.
In the end, the appeal fails and is hereby dismissed with costs to the respondent.
Issues in the judgment
#The quoted passage of Section 44(4) of the Employment Act appears incomplete/truncated in the judgment, breaking off mid-sentence: 'the enumeration of such matters or the decision of an employer to dismiss an employee summarily' employer or an employee from respectively alleging or disputing whether the facts giving rise to the same...'
The case number and neutral citation of this appeal are not stated anywhere in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mwadori v Milly Glass Works Limited (Appeal E035 of 2025) [2025] KEELRC 2312 (KLR)[2025] KEELRC 2312 (KLR)31 Jul 2025applied
- Oliech v Komaza Forestry Limited (Cause E001 of 2023) [2025] KEELRC 1991 (KLR)[2025] KEELRC 1991 (KLR)8 Jul 2025
- Oliech v Komaza Forestry Limited (Cause E001 of 2023) [2025] KEELRC 1991 (KLR)[2025] KEELRC 1991 (KLR)8 Jul 2025applied
Cite this brief
#Cite this brief
Caselaw, "Elsa’s Kopje Limited v Mwendwa (Civil Appeal 624 of 2019) [2025] KECA 725 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/725/eng@2025-05-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.