Kitiri Dairy and Investment Co-operative Limited v Kaguthi (Employment and Labour Relations Appeal E007 of 2023) [2025] KEELRC 541 (KLR)
The bottom line
#Keroche lost its appeal because it could not prove it fairly terminated an employee for desertion, and must pay Kshs.238,583 plus interest and costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant proved valid reason and procedural fairness for terminating the respondent's employment
The appellant failed to prove a valid reason and procedural fairness; the termination was unfair.
The court found the claim that the respondent was employed as an accountant in March 2015 without the employer having her certificates incredible. The only letter, dated 15th March 2019, came many months after the respondent left employment in September 2018, and there was no evidence she was ordered to produce documents or invited to a disciplinary hearing. Section 41 of the Employment Act was not followed, so both substantive justification and procedural fairness failed.
Whether the appellant proved desertion
Desertion was not proved; there was no evidence of the mandated process.
Desertion is serious misconduct that can justify termination, but the employer must prove efforts to reach the employee and to take them through a disciplinary process on grounds of desertion. No evidence of an invitation to a disciplinary hearing on desertion was presented, and no effort was made to let the respondent defend herself against the allegations.
Whether the trial magistrate's awards were correct
The trial magistrate was right on liability but exceeded her mandate by awarding reliefs not claimed in the pleadings; the awards were substituted.
The court upheld the finding of unfair termination but varied the reliefs: unpaid salary, one month's notice pay, house allowance and six months' compensation were allowed; accrued leave and underpayment were disallowed as unproved; a total of Kshs.238,583/= was awarded with interest at 14% per annum.
Legal principles established
#- For a termination to be fair it must be both substantively and procedurally fair; the employer must prove the reasons for termination.
- An employer alleging desertion must prove it made efforts to reach the employee and to take the employee through a disciplinary process on the grounds of desertion.
- On alleged abscondment, the employer must issue notice to the employee to render an account, and if the employee persists, terminate through the employee's last known address.
Court orders
#- 1.The appeal is dismissed
- 2.Trial magistrate's awards replaced as follows: unpaid salary up to 10th September 2018 Kshs.5,833/=
- 3.One month's salary in lieu of notice Kshs.17,500/=
- 4.Accrued annual leave claim disallowed as not proved
- 5.Underpayment claim disallowed as not proved
- 6.House allowance allowed at Kshs.110,250/= as the appellant produced no documents showing salary was inclusive of house allowance
- 7.Damages for unlawful termination upheld at 6 months' pay, Kshs.105,000/=
- 8.Total award of Kshs.238,583/= with interest at 14% per annum from the date of judgment until full payment
- 9.Costs of the lower court and of this court awarded to the Respondent based on the award
- On appeal from
- Principal Magistrate's Court (Honourable Ruth Kefa Chebesio, Principal Magistrate)
- not stated in judgment
- Jurisdiction invoked
- First appellate jurisdiction over the learned Magistrate's judgment and decree in an employment dispute
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kitiri Dairy and Investment Co-operative Limited v Kaguthi (Employment and Labour Relations Appeal E007 of 2023) [2025] KEELRC 541 (KLR)", Case Analysis (2025). Employment Appeal (Nakuru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/541/eng@2025-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.