Andrew Opiyo Ochwang'u v Leafde Ltd
The bottom line
#Kenya's Court of Appeal confirmed that an employee fired for proven fraud cannot claim extra compensation when the employer's evidence justifies the dismissal, even if procedure was flawed.
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 learned Judge was at fault in declining to award the appellant compensation for unlawful termination
Key legal issues
#Whether the trial Judge erred in declining compensation for unfair termination despite finding procedural unfairness
The appeal fails; the Judge properly exercised discretion under section 45(5)(b) of the Employment Act, having regard to the appellant's gross misconduct, and the decision declining compensation stands.
The forensic audit findings of fraud and misappropriation were unrebutted, establishing substantive justification for summary dismissal. The procedural defect (failure to accord a hearing under section 41) was admitted but, given the appellant's serious misconduct and the two months' salary already paid in lieu of notice, any further award would overcompensate him. The Court affirmed the ELRC's discretionary balancing under section 45(5)(b).
Whether the respondent discharged the burden of justifying the termination absent a criminal conviction
Yes; the burden under section 47(5) rests on the employer to justify grounds, on a balance of probabilities, and the audit evidence sufficed without proof of a criminal charge.
Section 47(5) places the burden of justifying grounds for termination on the employer. The standard is the balance of probabilities, not the criminal standard. The Forensic Investigative Audit Report, produced and testified to by RW2, made unrebutted findings of systematic fraud by the appellant, so the respondent discharged its burden regardless of whether a criminal charge was proved to exist.
Legal principles established
#- Where an employer establishes substantive justification for summary dismissal through cogent and unrebutted evidence, a procedural breach can attract only limited or nominal compensation.
- The standard of proof for gross misconduct in employment is the balance of probabilities, not proof beyond reasonable doubt.
Court orders
#- 1.The appeal is dismissed in its entirety with costs to the respondent
- 2.The judgment of the ELRC (Monica Mbaru, J.) delivered on 29th June 2023 is upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court at Mombasa
- ELRC Case No. E072 of 2022
- Jurisdiction invoked
- First appellate jurisdiction over the Employment and Labour Relations Court
Relief refused
#Compensation for unfair termination (12 months' salary) and setting aside of the trial court's decision
Substantive justification for summary dismissal was amply demonstrated; the appellant had already been paid two months' salary in lieu of notice, so further compensation would overcompensate him
Costs
Appeal dismissed with costs to the respondent; the trial court had ordered each party to bear their own costs.
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.
Where, however, an employer has established, through cogent and unrebutted evidence, a substantive justification for summary dismissal, any procedural breach on its part can, at best, attract only limited or nominal compensation.
It bears repeating that the standard of proof an employer needs to be satisfied about an alleged act of criminality on the part of an employee is the lesser one of balance of probabilities.
In view of the foregoing, we find that the appeal fails and is hereby dismissed in its entirety with costs to the respondent. Consequently, the judgment of the ELRC (Monica Mbaru, J.) delivered on 29th June 2023 is hereby upheld.
Issues in the judgment
#Contradiction on notice pay: defence pleads one month's salary in lieu of notice, but the Court's reasoning assumes two months' salary was paid.
Judgment dated 25th September 2026 while submissions were filed May-June 2025; date appears unusually far in the future relative to the appeal timeline.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Andrew Opiyo Ochwang'u v Leafde Ltd", Case Analysis (2026). Civil Appeal No. E023 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1789/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.