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ELRCPartially AllowedAppeal from Butali Principal Magistrates' ELRC Case No. 13 of 2020 (memorandum of appeal dated 8th March, 2024)· [2025] KEELRC 485 (KLR)

Satia v West Kenya Sugar Company Limited (Appeal 13 of 2023) [2025] KEELRC 485 (KLR)

Employment and Labour Relations Court
20 February 2025
DNDavid Nderitu
5,976 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's ELRC upheld a fuel-theft dismissal but awarded a former winch operator Kshs18,090 in unpaid leave pay and salary because the employer kept no employment records.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Kakamega (David Nderitu, J) allowed an appeal in part against the judgment of the Butali Chief Magistrate's Court in ELRC Cause No. 13 of 2020 delivered on 23rd February 2023, which had dismissed a winch operator's claim for unfair termination arising from allegations that he siphoned about 30-39.4 litres of fuel from winch KTCB 029J on 9th January 2020, detected by a fuel level sensor (FLS). The appellant argued the FLS was faulty, uncalibrated and unproven under Section 78A of the Evidence Act, and that the disciplinary hearing breached Section 41 of the Employment Act because the union representative present was not of his choice. The respondent maintained the dismissal was both substantively and procedurally fair. Applying the reasonable-employer test in British Leyland UK Limited v Swift and re-evaluating the evidence as a first appellate court, the court held the respondent reasonably believed the appellant siphoned fuel; the FLS graph was produced by consent, the alleged 8.00 am discrepancy was explained, and the appellant failed to prove the sensor was faulty, report the alleged clutch defect, or call corroborating witnesses. Procedurally, the show-cause letter, written reply, hearing with a union representative and unexercised right of appeal satisfied Section 41. However, the court found the trial magistrate erred in failing to consider the claims for 2019 leave pay and salary for 25 days worked (1-25 February 2020), which the respondent had not rebutted with records required under Sections 10 and 74 of the Act. It struck down the unpleaded service pay award and ordered unconditional delivery of a certificate of service. Judgment of Kshs18,090/= was entered for the appellant, with half costs of both the trial and the appeal.

Key legal issues

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01

Whether the termination was substantively fair

Holding

Yes - the respondent reasonably believed the appellant had siphoned about 30 litres of fuel based on FLS evidence produced by consent; the appellant failed to demonstrate the FLS was faulty or to report the alleged mechanical fault or call corroborating witnesses

Reasoning

The FLS graph was produced by consent with no objection. The explanation for the 8.00 am reading (time of fueling) was given and clarified. The appellant, though alleging a clutch fault, failed to report it or call witnesses. In the absence of evidence of a faulty FLS, dismissal fell within the band of reasonableness of a reasonable employer.

p. 9
02

Whether the termination was procedurally fair under Section 41 of the Employment Act

Holding

Yes - the appellant was given a show-cause letter, responded in writing and verbally, was accompanied by a union representative at the disciplinary hearing, and did not appeal the dismissal

Reasoning

The appellant was informed of the charges via the show-cause letter dated 22nd January 2020, replied on 26th January 2020, attended the disciplinary hearing on 18th February 2020 with a union representative (Mark Wekesa), and admitted he understood the charges. No evidence showed the minutes were objected to or that natural justice was breached.

p. 10
03

Claims for leave pay for 2019 and salary for 25 days worked (1/2/2020 to 25/2/2020)

Holding

Allowed - the lower court erred in dismissing them without consideration; the respondent produced no records under Sections 10 and 74 of the Act, so the uncontroverted claims were awarded (Kshs11,340 leave pay and Kshs6,750 half-pay)

Reasoning

The trial court dismissed these claims without considering them on merits. The respondent bore the statutory duty under Sections 10 and 74 to keep and produce employment records proving leave taken and half-pay made; failing that, the uncontroverted claims succeeded and were computed on the contractual salary of Kshs16,200/=

p. 10
04

First appellate court's duty on re-evaluation of evidence

Holding

The court is obliged to re-evaluate the evidence and reach its own conclusions while bearing in mind it neither saw nor heard the witnesses

Reasoning

Relying on Selle v Associated Motor Boat Co Ltd, the court restated the standard applicable to a first appellate court in analysing the trial record and the parties' submissions before determining whether the trial court's findings should stand.

p. 6

Legal principles established

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  • Procedural fairness under Section 41 of the Employment Act is mandatory even where an employer contemplates summary dismissal for gross misconduct under Section 44
  • Issuance of a certificate of service under Section 51 of the Employment Act is unconditional
  • The test for substantive fairness of dismissal is the reasonable employer test (band of reasonableness) from British Leyland UK Limited v Swift
  • An employer's failure to produce employment records required under Sections 10 and 74 of the Employment Act leaves an uncontroverted claim to leave pay and salary proven

Court orders

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  1. 1.The appeal is partially allowed and the judgment of the lower trial court is set aside as ordered
  2. 2.Judgment be and is hereby entered in favour of the appellant in the sum of Kshs18,090/= comprising leave pay for 2019 of Kshs11,340/= and salary for 25 days from 1/2/2020 to 25/2/2020 of Kshs6,750/=
  3. 3.Certificate of service be issued by the respondent to the appellant and delivered to his counsel on record within 30 days of the judgment
  4. 4.The appellant is awarded half costs in the trial in the lower court and half costs of this appeal

Authorities

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Legislation

  • Employment ActSection 43
  • Employment ActSection 41 (incl. s.41(2))
  • Employment ActSection 45 (incl. s.45(2), s.45(5)(e))
  • Employment ActSection 44 (incl. s.44(3),(4))
  • Employment ActSection 47
  • Employment ActSection 35(4)(b)
  • Employment ActSections 10 and 74
  • Employment ActSections 51 and 52
  • Evidence ActSection 78A
  • Weights and Measures Actnull
  • Constitution of KenyaArticle 50

Cases cited (17)

  • Galgalo Jarso Jillo v Agricultural Finance Corporation
    (2021) eKLR
  • Josephine M. Ndungu & others v Plan International Inc
    (2019) eKLR
  • Peter Wafula Juma & 2 others v Republic
    [2014] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Alphonce Machanga Mwachanya v Operation 680 Limited
    (2013) eKLR
  • Nicholus Muasya Kyula v Farmchem Limited
    (2012) eKLR
  • Kabengi Mugo v Syngenta East Africa Limited
    (2013) eKLR
  • Donald Odeke v Fidelity Security Limited
    (2012) eKLR
  • Selle & Another v Associated Motor Boat Co. Ltd & Others
    (1968) EA 123
  • Peters v Sunday Post Limited
    (1958) EA 424
  • Protus Wanjala Mutike v Anglo African Properties t/a Jambo Mutara Lodge Laikipia
    (2021) eKLR
  • Casmir Nyakundi Nyaberi v Mwakikar Agencies Limited
    (2016) eKLR
  • Eric Gichuru Thiga v Unga Limited
    (2013) eKLR
  • Alfayo Jagona Imbuya v Board of Management Ivugwi Secondary School
    (2018) eKLR
  • Mulwa Msanifu Kombo v Kenya Airways
    (2013) eKLR
  • Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 Others
    (2019) eKLR
  • British Leyland UK Limited v Swift
    (1981) I.R.L.R. 91
On appeal from
Butali Chief Magistrate's Court (ELRC)
ELRC Cause No. 13 of 2020
Jurisdiction invoked
First appellate jurisdiction over the Butali Chief Magistrate's Court ELRC Cause No. 13 of 2020

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, "Satia v West Kenya Sugar Company Limited (Appeal 13 of 2023) [2025] KEELRC 485 (KLR)", Case Analysis (2025). Appeal from Butali Principal Magistrates' ELRC Case No. 13 of 2020 (memorandum of appeal dated 8th March, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/485/eng@2025-02-20

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