Koppert Biological Systems Ltd v Chege (Civil Appeal E027 of 2020) [2026] KECA 1123 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a Kshs. 765,000 award against an employer who fired a worker claiming desertion but never tried to contact him or follow fair procedure.
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 trial judge erred in failing to consider the appellant's counterclaim and submissions, and the respondent's contribution to the termination of employment
- 2.Whether the appellant proved desertion so as to justify summary termination
- 3.Whether failure by the trial court to consider the appellant's late-filed final submissions nullified the judgment
- 4.Whether the compensatory award of 8 months' salary for unlawful and unfair termination was excessive
Key legal issues
#Whether the termination of the respondent's employment was lawful on the ground of desertion
The desertion narrative failed; the appellant terminated employment verbally on 6th July 2015 without notice, without a termination letter and without any disciplinary process, in violation of section 41 of the Employment Act.
Desertion requires proof of an intention not to return, deducible from facts such as lack of communication, duration of absence and attempts to reach the employee. The appellant made no attempt to reach the respondent and issued no show cause notice. Its own advocates' letter of 6th October 2015 attributed termination to gross misconduct, not desertion, and a newspaper notice published in August 2015 declared the respondent ceased to be an employee from 6th July 2015, betraying an intention to terminate from that very date. Due process at the shop floor is mandatory.
Whether failure to consider the appellant's final submissions vitiates the trial judgment
It does not. The submissions were filed out of time, no tangible prejudice was shown, and the judgment considered all relevant factors regarding unlawful termination and desertion.
The appellant filed submissions after the deadline set by the ELRC and did not deny the late filing. The court asked itself whether tangible prejudice was occasioned by the omission and, applying the principle that failure to consider submissions per se does not nullify a sound judgment, was satisfied from the trial judgment that all relevant factors regarding the rival allegations were taken into account.
Whether the trial judge failed to consider the counterclaim and set-off
The contention was baseless: the judgment expressly considered the counterclaim and allowed it partially in the sum of Kshs. 7,219, deductible from the decree.
The trial court's judgment on its face showed that the counterclaim was considered and partially allowed; hence the appellant's ground that it was ignored could not stand.
Whether the award of 8 months' salary as compensation for unfair termination was excessive
The award stands. None of the grounds for interfering with a discretionary award was established, even though the trial judgment did not set out the factors considered.
Compensation under section 49(4) of the Employment Act is discretionary; an appellate court may interfere only where the judge misdirected himself in law, misapprehended the facts, took into account irrelevant considerations, failed to take account of relevant ones, or where the decision is plainly wrong. No such ground was established. The court, however, stressed that awards under section 49 must be supported by stated factors for accountability and predictability.
Legal principles established
#- An employer asserting desertion as a defence to a claim of unlawful termination must demonstrate efforts to reach out to the employee and put them on notice that termination is under consideration; mere invocation of the term 'desertion' is insufficient.
- Desertion must be proved like any other misconduct, and requires an intention on the part of the employee not to return to work, which the employer may deduce from the facts and must demonstrate.
- Every award under section 49 of the Employment Act must be supported by an express statement of the factors taken into account in reaching the award.
- Failure to consider submissions per se does not nullify an otherwise sound judgment, absent tangible prejudice.
- The duty of a first appellate court is to re-consider, re-analyze and re-evaluate the evidence on record and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal 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 text
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (specific statutory provision not stated in the judgment)
Relief refused
#Setting aside of the trial court's judgment and the compensatory award of 8 months' salary
No basis established for disturbing the discretionary award, and termination was procedurally unfair; desertion was not proved
Costs
Appeal 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.
Ultimately, we find this appeal to be without merit and proceed to dismiss it with costs to the respondent.
an employer fronting desertion as a defence against a claim of unlawful termination of employment must demonstrate efiorts made to reach out to the employee, with a view to putting them on notice that termination on this account is under consideration.
We therefore agree with the learned trial Judge that termination of the respondent’s employment was in violation of the procedural fairness requirements established by section 41 of the Employment Act.
This is not only a requirement of judicial accountability but also serves to create stability and predictability in compensatory awards.
An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate.
Issues in the judgment
#The judgment is dated '12TH DAY OF JUNE 2026', a date that appears to be in the future; recorded as printed.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Koppert Biological Systems Ltd v Chege (Civil Appeal E027 of 2020) [2026] KECA 1123 (KLR)", Case Analysis (2026). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1123/eng@2026-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.