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ELRCPartially AllowedGatundu MCELRC No. E002 of 2021 (First Appeal)· [2025] KEELRC 858 (KLR)

Ng’ang’a v Avic International Holding Corporation (Employment and Labour Relations Appeal E150 of 2024) [2025] KEELRC 858 (KLR)

Employment and Labour Relations Court of Kenya
14 March 2025
JKJ.W. Keli
3,582 words in judgment
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The bottom line

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A Kenyan court ruled an employer unfairly fired a driver because it couldn't prove he absconded, awarding him notice pay, salary dues, and three months' compensation.

What this practically means

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Executive summary

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This is a first appeal by a trailer driver against the dismissal of his unfair termination claim by the trial magistrate (D.N Musyoka, CM) in Gatundu MCELRC No. E002 of 2021, whose judgment of 24th April 2024 had dismissed the claim with costs. Guided by Selle v Associated Motor Boat Co and Mbogo v Shah, J.W. Keli (J) re-evaluated the evidence and framed two issues: the fairness of the termination and entitlement to reliefs. The court found the employer's pleaded reason of absconding unsubstantiated: the show cause letter dated 25th January 2021 post-dated the 20th January 2021 job cancellation letter, there was no proof of service of the show cause letter, and the reasons in the job cancellation letter were unsupported by documents and fell below the section 43 threshold of the Employment Act. Relying on Kennedy Obala Oaga v Kenya Ports Authority and the South African decision in Mtati v KPMG, the court held that an employer cannot discipline an ex-employee. On a balance of probabilities the employer failed to discharge its burden under section 47(5), and both substantive and procedural fairness under section 45(2) were absent; the finding of absconding was set aside. The appeal was allowed in part: the trial judgment was set aside and substituted with a declaration that the termination was unlawful and unfair, notice pay of KShs.21,420, 20 days' January 2021 salary of KShs.14,280, prorated leave of KShs.6,247.50, and 3 months' compensation of KShs.64,260, with costs and interest. Reinstatement was refused as statutorily unavailable after three years; housing and overtime claims failed on the all-inclusive salary provision. A 30-day stay was granted.

Key legal issues

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01

Whether the trial court erred in finding the termination fair

Holding

The termination was wrongful and unfair; the trial court's finding of absconding was set aside

Reasoning

The employer's pleaded reason was absconding, but the show cause letter dated 25th January 2021 post-dated the job cancellation of 20th January 2021, and there was no proof of service of the show cause letter. The job cancellation reasons were unsubstantiated and below the section 43 threshold. The employer thus failed to prove a valid reason and fair procedure under sections 45(2), 43 and 41 of the Employment Act.

p. 7
02

Whether the appellant was entitled to the reliefs sought

Holding

Entitled to notice pay, 20 days' salary for January 2021, prorated leave and 3 months' compensation for unfair termination; reinstatement unavailable after 3 years and other claims unsupported

Reasoning

Reinstatement is statutorily barred after three years. The contract provided an all-inclusive salary, defeating the housing/overtime claims. Leave was prorated for the 5-month contract at 21 days under section 28 of the Employment Act. Compensation of 3 months was awarded considering the length of service, prior unsigned warnings and the appellant's ability to secure other work.

p. 7

Legal principles established

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  • An employer cannot subject an ex-employee to a disciplinary process once the employment relationship has ended
  • On first appeal, the court must re-evaluate the evidence and reach its own conclusion
  • The burden of proving valid grounds for termination rests on the employer under section 47(5) of the Employment Act

Court orders

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  1. 1.Judgment and Decree of the Honourable D.N Musyoka (CM) delivered on 24th April 2024 in Gatundu MCELRC E002 of 2021 set aside and substituted
  2. 2.Declaration that the termination of employment of the Claimant by Respondent was unlawful and unfair
  3. 3.Notice pay of KShs.21,420
  4. 4.20 days salary for January 2021 of Kshs.14,280
  5. 5.Untaken prorated leave of KShs.6,247.50
  6. 6.Compensation for unfair termination equivalent to 3 months' gross salary, total sum KShs.64,260
  7. 7.Costs and interest at court rate from date of judgment of 24th April 2024
  8. 8.Costs of the Appeal to the appellant
  9. 9.30 days' stay granted

Authorities

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Legislation

  • Employment Actsection 45(2)
  • Employment Actsection 47(5)
  • Employment Actsection 43
  • Employment Actsection 41
  • Employment Actsection 35
  • Employment Actsection 28
  • Employment and Labour Relations Actsection 12(3)(vii)
  • Constitution of Kenyaarticles 41 and 47 (as pleaded in the Statement of Claim)

Cases cited (4)

  • Selle v Associated Motor Boat Co
    [1968] EA 123
  • Mbogo v Shah
    [1968] EA (De Lestang V.P at page 94)
  • Kennedy Obala Oaga v Kenya Ports Authority
    [2018] eKLR
  • Mtati v. KPMG (Pty) Ltd
    (2017) BLL 315 (LC)
On appeal from
Principal Magistrate's Court at Gatundu (Employment and Labour Relations)
MCELRC No. E002 of 2021
Jurisdiction invoked
First appellate jurisdiction under the Employment and Labour Relations Act (section 12) over appeals from the Employment and Labour Relations Court subordinate bench

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, "Ng’ang’a v Avic International Holding Corporation (Employment and Labour Relations Appeal E150 of 2024) [2025] KEELRC 858 (KLR)", Case Analysis (2025). Gatundu MCELRC No. E002 of 2021 (First Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/858/eng@2025-03-14

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