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ELRCDismissedAppeal from Nairobi Chief Magistrate's Employment & Labour Relations Cause No. E799 of 2020· [2025] KEELRC 211 (KLR)

Gichora v Mater Misericordiae Hospital (Employment and Labour Relations Appeal E115 of 2023) [2025] KEELRC 211 (KLR)

Employment and Labour Relations Court
31 January 2025
JKJ. W. Keli
4,284 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that skipping a disciplinary hearing you were properly invited to amounts to absconding, making the dismissal lawful.

What this practically means

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Executive summary

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The appellant, Anne Wanjiru Gichora, appealed against the judgment of the Chief Magistrate's Court (Hon. B.M. Cheloti, PM) delivered on 29 May 2023 in Nairobi CM ELRC Cause No. E799 of 2020, which dismissed her claims for declarations over her reassignment and disciplinary hearing, a certificate of service, salary for unexpired contract term, 12 months' compensation, unpaid leave and damages. The appeal raised two issues framed by the court: whether the termination of her employment was unlawful and unfair, and whether the trial court erred in failing to award the reliefs sought. The court applied the classic first-appellate duty in Selle v Associated Motor Boat Co. to re-evaluate the evidence. It upheld the trial court's finding that the termination was for a valid reason - absconding duty following reassignment, which the appellant admitted in her response to the show cause letter. On procedure, the court held that the notice and invitation to the 6th October 2020 hearing afforded her a reasonable opportunity to be heard; her excuses of illness and short notice were inconsistent, and the absence of minutes was moot since she admitted not attending. It declined to micromanage the employer's operational reorganisation. The certificate of service was held to be a statutory right under section 51 of the Employment Act, to issue unconditionally; the unpaid leave claim failed for want of evidence and submissions. The appeal was dismissed, the trial judgment upheld, and each party ordered to bear its own costs of the appeal.

Key legal issues

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01

Whether termination of the appellant's employment was lawful and fair

Holding

Termination was lawful and fair; absconding duty after reassignment was a valid reason and procedural fairness was met by the notice and invitation to the disciplinary hearing.

Reasoning

The appellant was issued a show cause letter and invited to a disciplinary hearing on 6th October 2020 by email of 2nd October 2020. Her response to the show cause admitted failing to take up the reassigned role, amounting to absconding. Her explanations of illness and short notice were inconsistent (approbating and reprobating), and she had applied to court to stop the hearing. The court found she had no intention of attending.

p. 8
02

Whether the absence of minutes of the disciplinary hearing vitiates procedural fairness

Holding

No - where the employee admits not attending, the absence of minutes is moot; minutes demonstrate a hearing but the right to hearing is met by a reasonable opportunity to be heard.

Reasoning

The appellant admitted being invited and not attending. The court held minutes are not robotic instruments; their purpose is to demonstrate hearing. Since the employee deliberately stayed away despite invitation, absence of minutes could not found a claim of procedural unfairness.

p. 7
03

Whether the trial court erred in failing to award reliefs (certificate of service, unpaid leave)

Holding

Certificate of service to issue unconditionally as a statutory right; unpaid leave claim failed for want of evidence and submissions.

Reasoning

The certificate is a statutory right under section 51 of the Employment Act, but the appellant could not be faulted for not having it at suit institution since the employment was subsisting then. On unpaid leave, no evidence or submissions were made at trial, so the burden of proof under section 109 of the Evidence Act was not discharged.

p. 9

Legal principles established

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  • A first appellate court must reconsider and evaluate the evidence afresh while making due allowance for not having seen or heard the witnesses.
  • The right to a hearing is met once an employee is granted a reasonable opportunity to be heard; minutes are not indispensable where the employee admits not attending.
  • A certificate of service is a statutory right of every employee under section 51 of the Employment Act and must be issued unconditionally upon termination.
  • An employer's internal reorganisation for operational requirements is not for the court to micromanage.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Judgment of the Chief Magistrate's Court delivered 29 May 2023 upheld
  3. 3.Respondent to issue the appellant Certificate of Service under section 51 of the Employment Act
  4. 4.Each party to bear own costs of the appeal

Authorities

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Legislation

  • Employment Actsection 51
  • Employment Actsection 10(5)
  • Employment Actsection 41(1), (2)
  • Evidence Actsection 109 (quoted as 108/109 in judgment)
  • Constitution of KenyaArticle 41(1)
  • Constitution of KenyaArticle 47(1)
  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 22(1)

Cases cited (4)

  • Selle v Associated Motor Boat Co.
    [1968] EA 123
  • Njuguna v VFS (Kenya) Limited
    (2023) eKLR
  • Rotich v Jirani Cultural Organisation
    (2023) eKLR
  • Royal Ngao Holdings Limited v N.K Brothers Limited and another
    (2021) eKLR
On appeal from
Chief Magistrate's Court, Nairobi (Employment & Labour Relations Cause)
Nairobi Chief Magistrate's Employment & Labour Relations Cause No. E799 of 2020
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court under the Employment and Labour Relations Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gichora v Mater Misericordiae Hospital (Employment and Labour Relations Appeal E115 of 2023) [2025] KEELRC 211 (KLR)", Case Analysis (2025). Appeal from Nairobi Chief Magistrate's Employment & Labour Relations Cause No. E799 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/211/eng@2025-01-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.