Munyao v Badar Hardware Limited (Appeal E160 of 2024) [2025] KEELRC 163 (KLR)
The bottom line
#A Kenyan court upheld a driver's summary dismissal because he never responded to his employer's show cause notice — ignoring that letter can cost you your case.
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 appellant was for valid and genuine reasons
- 2.Whether the respondent followed fair procedure under sections 41, 43 and 44 of the Employment Act
- 3.Whether the appellant is entitled to notice pay, leave pay, service pay, salary for May 2021, and fuel refunds
Key legal issues
#Validity of reasons for summary dismissal
The allegations (failing lawful orders, diverting from approved journey plan, neglecting safety instructions) amounted to gross misconduct and the employer genuinely believed them
The appellant admitted having a journey plan and diverting without permission. He did not respond to the show cause notice nor obtain permission before diverting. The court held the employer genuinely believed the allegations which related to gross misconduct, justifying summary dismissal under section 44 of the Employment Act.
Procedural fairness under Section 41
Due process was followed; the appellant was issued a notice to show cause, acknowledged receipt, and attended a disciplinary hearing accompanied by a fellow employee
The court found the appellant was issued a notice to show cause which he acknowledged but failed to answer. He was notified of and attended the disciplinary hearing with another employee of his choice. Summary dismissal is permissible on short notice where the employee was aware of the misconduct and allowed to be heard.
Claims for leave, service pay and fuel refunds
Leave claims for 2019-2021 barred under Section 28(4); service pay not due due to NSSF registration and remittances; fuel refund claim unsupported by evidence
The respondent produced records showing 63 leave days taken, unchallenged. NSSF registration and remittances excluded service pay. The fuel refund claim is a specific claim requiring the claiming party's evidence, which was absent.
Legal principles established
#- The standard of proof in employment termination is on a balance of probability and the employer need only prove reasons it genuinely believed to exist
- Once an employee is invited to show cause for gross misconduct and refuses to respond, the employer has valid and genuine reasons to believe the allegations
- Annual leave should not be accumulated beyond 18 months without approval
- Registration with NSSF and remittances disqualify a claim for service pay
Court orders
#- 1.The appeal is found to be without merit and is dismissed
- 2.The appellant to bear the costs of the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Resident Magistrate's Court, Mariakani
- SRMCC No. 289 of 2017
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court (Employment and Labour Relations Court); the judgment does not cite a specific statutory provision
Relief refused
#Setting aside the judgment and allowing the claim with costs (notice pay, leave pay, service pay, May 2021 salary, 12 months' compensation, fuel refunds)
The termination was lawful; the appellant failed to respond to the show cause notice; leave claims barred by Section 28(4); no evidence for fuel refunds
Costs
The appellant is to bear the costs for 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.
The standard of proof is on a balance of probability, not beyond a reasonable doubt, and all the employer is required to prove are the reasons that it “genuinely believed to exist,”
The failure to respond to the notice to show cause is a grievous error on the part of the appellant.
leave should not be accumulated without approval from the employer and beyond 18 months per Section 28(4) of the Employment Act.
The court finds the appeal without merit and is hereby dismissed. The appellant is to bear the costs for the respondent.
Issues in the judgment
#Inconsistent dates within the judgment - the dismissal is dated 24 May 2021 in the background but paragraph 18 refers to 24 May 2024
Inconsistent dates on diversion - grounds state 10 and 18 May 2021, submissions state 11 and 18 May 2021
The claim is stated as salary for May 2021 but the respondent's submissions address 'salary for May 2022'
Show cause letter dated 24 May 2021 per appellant's submissions versus 20 May 2021 per respondent and court's findings
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munyao v Badar Hardware Limited (Appeal E160 of 2024) [2025] KEELRC 163 (KLR)", Case Analysis (2025). Not stated in the judgment (first appeal from Mariakani SRMCC No. 289 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/163/eng@2025-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.