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ELRCDismissedNot stated in the judgment (first appeal from Mariakani SRMCC No. 289 of 2017)

Munyao v Badar Hardware Limited (Appeal E160 of 2024) [2025] KEELRC 163 (KLR)

Employment and Labour Relations Court
30 January 2025
1,984 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a first appeal from the judgment of the Senior Resident Magistrate's Court at Mariakani in SRMCC No. 289 of 2017 delivered on 29 March 2021, which dismissed the appellant's claim for unfair termination. The appellant, employed as a driver from September 2011 at Ksh 35,000 per month, was summarily dismissed on 24 May 2021 for failing to comply with lawful orders, diverting from an approved journey plan without permission, and neglecting safety instructions. He claimed notice pay, leave pay for 2019-2021, service pay, May 2021 salary, 12 months' compensation, fuel deductions and costs. The respondent asserted he was issued a notice to show cause on 20 May 2021, failed to respond, attended a disciplinary hearing accompanied by a colleague, and was paid his dues including Ksh 50,000 ex gratia. The court, hearing the appeal on written submissions, reaffirmed the standard of proof on a balance of probability and that the employer need only prove reasons it genuinely believed to exist. It held the appellant's failure to respond to the show cause notice was a grievous error, that the allegations amounted to gross misconduct warranting summary dismissal under section 44 of the Employment Act, and that due process was followed. Leave claims were barred under section 28(4), service pay excluded by NSSF registration and remittances, and the fuel refund claim unsupported by evidence. The appeal was dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the summary dismissal of the appellant was for valid and genuine reasons
  2. 2.Whether the respondent followed fair procedure under sections 41, 43 and 44 of the Employment Act
  3. 3.Whether the appellant is entitled to notice pay, leave pay, service pay, salary for May 2021, and fuel refunds

Key legal issues

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01

Validity of reasons for summary dismissal

Holding

The allegations (failing lawful orders, diverting from approved journey plan, neglecting safety instructions) amounted to gross misconduct and the employer genuinely believed them

Reasoning

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.

p. 4
02

Procedural fairness under Section 41

Holding

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

Reasoning

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.

p. 4
03

Claims for leave, service pay and fuel refunds

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The appeal is found to be without merit and is dismissed
  2. 2.The appellant to bear the costs of the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 5

Costs

The appellant is to bear the costs for the respondent.

Quotable passages

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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,”
p. 4Standard of proof in employment termination
The failure to respond to the notice to show cause is a grievous error on the part of the appellant.
p. 3Duty to respond to show cause notice
leave should not be accumulated without approval from the employer and beyond 18 months per Section 28(4) of the Employment Act.
p. 4Accumulation of leave
The court finds the appeal without merit and is hereby dismissed. The appellant is to bear the costs for the respondent.
p. 5Final orders - dismissal of appeal and costs

Issues in the judgment

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minor

Inconsistent dates within the judgment - the dismissal is dated 24 May 2021 in the background but paragraph 18 refers to 24 May 2024

minor

Inconsistent dates on diversion - grounds state 10 and 18 May 2021, submissions state 11 and 18 May 2021

minor

The claim is stated as salary for May 2021 but the respondent's submissions address 'salary for May 2022'

minor

Show cause letter dated 24 May 2021 per appellant's submissions versus 20 May 2021 per respondent and court's findings

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.