Apex Steel Limited v Mulinge (Employment and Labour Relations Appeal E063 of 2021) [2025] KEELRC 736 (KLR)

The court examined the disciplinary hearing form and found it was not filled as expected: the Respondent's response to the charge was not recorded, the clause on confirmation of hearing and allegations was unsigned, and the committee's resolution was not indicated. Section 41 of the Employment Act mandatorily requires notification, a hearing, and consideration of representations. Since the form did not demonstrate compliance, the court found procedural unfairness and upheld the trial court's finding on this limb.

The general manager, the alleged eyewitness, neither testified nor made a statement; the turn boys who allegedly implicated the Respondent were not called to testify. The Respondent denied involvement and explained he could not see behind the lorry while driving. The court found no proof the Respondent aided the theft, and indeed no proof that any theft of the Appellant's property occurred at all. Consequently the dismissal was unfair under section 45(2).

Having found the dismissal unfair both procedurally and substantively, the Respondent was entitled to pay in lieu of notice. On compensation, the court considered that the Respondent had served over two years and, taking into account the circumstances and the factors in section 49(4) of the Employment Act, found the award of 6 months' salary not inordinately high so as to warrant interference on appeal.

The trial court awarded Kshs 140,000 for the remaining part of the contract but gave no justification for the award. Since the Respondent had already been compensated for unfair termination, the court found the award duplicated that compensation and lacked legal basis or justification, and therefore set it aside, varying the trial judgment only to that extent.