Musyoka t/a Jana Pestcon v Mnyika (Appeal E186 of 2024) [2025] KEELRC 376 (KLR)
The bottom line
#A Kenyan court cut an unfairly terminated driver's compensation to zero because his own misconduct caused the employer's loss.
What this practically means
#Executive summary
#Key legal issues
#Duty of a first appellate court
A first appellate court must re-evaluate and reconsider the evidence on record and draw its own conclusions, making allowance for not having seen or heard the witnesses
The court restated the Selle v Associated Motor Boat Company principle that an appeal is by way of retrial: the appellate court reconsiders and evaluates the evidence and draws its own conclusions, bearing in mind it did not see or hear witnesses firsthand, and is not bound by trial findings where they fail to account for particular circumstances or probabilities.
Effect of police investigations on internal disciplinary proceedings
An employer may proceed with internal disciplinary proceedings regardless of the outcome of police investigations following a traffic offence
Traffic and criminal procedures are regulated under different regimes from employment disputes. Arrest following an accident is a legal requirement, but the employer remains free to hold shop-floor disciplinary proceedings under Section 41 of the Employment Act unless it has expressly communicated that the criminal outcome would dictate the internal process.
Employer's duty to conclude the employment relationship
The employer must terminate employment and serve notice where an employee fails to attend work; failing to conclude the show-cause process is an abdication of legal duty rendering termination unfair
Although the respondent's refusal to attend work amounted to gross misconduct justifying a show-cause notice, once he opted to file suit the employer abandoned the process. The employer was bound under Section 41(2) and Section 18(5)(b) to terminate and serve notice, or notify the Labour Office if the employee could not be traced. Leaving the employee at large invites claims of unfair termination.
Conduct of the employee in assessing compensation
An employee whose culpable conduct caused the employer loss is not entitled to compensation for unfair termination notwithstanding procedural defects
Applying Section 45(5)(b), the court found the respondent's conduct in allowing an unauthorized driver to take his allocated vehicle unjustifiable, causing loss of Ksh.180,000. Relying on authorities including Kimongo v Shrink Pack Limited and Lilian W Mbogo-Omollo, the court interfered with the trial court's discretion and awarded zero compensation.
Deduction of losses from terminal dues
An employer may deduct losses caused by an employee's negligent performance of duties from the employee's terminal dues under Section 19 of the Employment Act
The accident caused by the respondent's conduct led to a loss of Ksh.180,000 to the appellant. Under Section 19 of the Employment Act, the employer can deduct such losses from the awards due at the end of employment. The court accordingly ordered the dues to be paid less Ksh.180,000.
Legal principles established
#- Police investigations and traffic proceedings do not bar an employer from undertaking internal disciplinary proceedings against an employee
- An employer must bring the employment relationship to a definite close; leaving an employee at large after filing suit is an abdication of the duty under Section 41(2) of the Employment Act
- An employee's culpability and conduct is a significant factor in assessing compensation under Section 45(5)(b) of the Employment Act
Court orders
#- 1.Employment terminated unfairly
- 2.Compensation zero (0)
- 3.Notice pay ksh.29,674.75
- 4.Underpayments and house allowances Ksh.582,346.65
- 5.Leave pay ksh.28,384.56
- 6.The dues shall be paid less Ksh.180,000 for damage incurred by the respondent to the property of the appellant
- 7.Each party is to bear its costs for this appeal and trial court proceedings
- On appeal from
- Mombasa CMELRC (Magistrates' Court, Employment and Labour Relations)
- E183 of 2023
- Jurisdiction invoked
- First appeal from the trial court in employment and labour relations proceedings
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Amakobe v Majorel Kenya Limited (Employment and Labour Relations Cause E257 of 2022) [2025] KEELRC 3745 (KLR)[2025] KEELRC 3745 (KLR)19 Dec 2025
Cite this brief
#Cite this brief
Caselaw, "Musyoka t/a Jana Pestcon v Mnyika (Appeal E186 of 2024) [2025] KEELRC 376 (KLR)", Case Analysis (2025). ELRC Appeal (Mombasa) against Mombasa CMELRC E183 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/376/eng@2025-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.