Zizi v Sifa Investment Limited (Cause E098 of 2023) [2025] KEELRC 972 (KLR)
The bottom line
#A Kenyan driver who lost over Ksh.12.6 million to his employer after dismissing his unfair termination claims shows employees can be made to pay for negligence at work.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was wrongful, unlawful and unfair termination of the claimant's employment with the respondent
- 2.Whether there were unfair labour practices
- 3.Whether the remedies sought should be issued
- 4.Whether the plea for set-off and counterclaim should be allowed
- 5.Question of costs
Key legal issues
#Whether the summary dismissal was wrongful, unlawful and unfair
The dismissal was justified; the claimant was culpable of gross misconduct for failing to report the accident to police, obtain an OB and present the vehicle for inspection, and due process under Sections 41 and 44 was followed
The court found the claimant failed to report the 30 April 2023 accident to police or secure an OB, defeating the respondent's insurance claim. He also ignored the notice to show cause. The court held the motions of due process were adhered to, following the four-element test in Oyombe v Eco Bank, and substantive reasons existed for dismissal under Section 44. The claim for notice pay and compensation therefore failed.
Whether there were unfair labour practices
The claim failed as the claimant laid no proper foundation
The claimant reported only minor injuries after the accident, remained at the site until rescue, and only disclosed serious injuries after being served with the notice to show cause. Being on sick leave did not excuse his responsibility to respond to the show cause notice. The court held that failing to seize the opportunity to explain does not aid the employee, following Okun v Kenyatta University.
Whether the claims for overtime, Sundays, rest days, public holidays and service pay should issue
All such claims failed
Working hours were agreed in the 2016 internal memo which the claimant signed; rest day allocation was lawful under Section 27; the public holiday claim was not particularised; service pay was not due since statutory dues were remitted under Section 35(5) and (6). The wage deduction claims from 2013 were time-barred under Section 89 and lawful under Section 19.
Whether the set-off and counterclaim should be allowed
Allowed; the respondent was awarded Ksh.12,614,514.22
The court found the dismissal justified due to the claimant's negligent work performance. Under Section 19(1)(c) read with Sections 44(3) and (4)(c), losses from the claimant's gross misconduct, including repair, recovery, guarding costs and loss of use of both vehicles, are recoverable from him, following Ajuoga, Assen and Hayombe.
Legal principles established
#- Four elements must be satisfied for a summary dismissal procedure to be fair: explanation of grounds in a language the employee understands, the reason for termination, entitlement to a representative, and hearing of representations
- A reasonable amount for damage to or loss of the employer's property occasioned by the employee's wilful default is deductible from wages
- An employee issued a comprehensive notice to show cause who fails to respond cannot later claim unfair labour practices
- Losses arising from an employee's careless and negligent performance of duty amounting to gross misconduct are recoverable by the employer under Sections 19 and 44 of the Employment Act
Court orders
#- 1.The claim is dismissed
- 2.The counterclaim is allowed with an award of Ksh. 12,614,514.22 to the respondent
- 3.Costs of the counterclaim from the date of judgment until paid in full
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (first-instance claim, set-off and counterclaim)
Relief refused
#Notice pay and 12 months' compensation for unfair termination
Summary dismissal was justified under Sections 41 and 44 of the Employment Act; substantive reasons existed and due process was followed
Overtime for 8 hours daily for 11 years (Ksh.6,067,344)
Working hours were agreed in the internal memo of 29 January 2016; no evidence of calls to work beyond agreed hours
Overtime for Sundays and rest days
The claimant was allowed rest on Sundays or allocated leave days; a rest day need not be a Saturday or Sunday
Payment for working on 11 public holidays (Ksh.569,184)
The claim was not specified or particularised
Service pay for 11 years (Ksh.193,727)
The respondent remitted statutory dues; no collective agreement or policy document granting service pay above the legal threshold
Refund of alleged wrongful salary deductions (Ksh.106,527)
Deductions were lawful wage advances under Section 19 and the claims from 2013 are time-barred under Section 89
Compensation for infringement of constitutional rights to fair labour practices (Ksh.211,338)
No proper foundation laid for the unfair termination claim
Costs
The claim was dismissed with the counterclaim allowed with costs from the date of judgment until paid in full
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
On costs, the claim is without merit and is hereby dismissed. The counterclaim is with merit and is hereby allowed with an award of Ksh. 12,614,514.22 with costs from the date of the judgment until paid in full.
There were substantive reasons for summary dismissal in this case, and the claimant was taken through a proper disciplinary hearing. The resulting termination of employment was justified.
…Four elements must thus be satisfied for the summary dismissal procedure to be said to be fair, being: a. An explanation of the grounds of termination in a language understood by the employee;
Where the employee is issued with a comprehensive notice to show cause and fails to respond, he cannot turn back and claim that there were unfair labour practices
A rest day under Section 27 of the Employment Act is one day within the week. This may not necessarily be a Saturday or Sunday.
Where the employee is in fundamental breach of the employment relationship due to careless and negligent performance of duty, the employer can recover any loss resulting from such gross misconduct
Issues in the judgment
#The judgment variously states the claimant applied emergency brakes due to mechanical malfunction (rear axle/brakes) while the respondent asserted speeding; the court adopted the respondent's position without reconciling the claimant's testimony on the malfunction
The judgment inconsistently records the accident date in the dismissal grounds as 1 May 2023 whereas the pleadings state 30 April 2023
The set-off figure is variously stated as Ksh.2,579,860 and Ksh.2,578,860
Recovery cost of vehicle KBX 858Z is stated as Ksh.289,000 in the response but Ksh.298,000 elsewhere
The claimant's testimony is recorded as taking place on 30 April 2023, the same date as the accident, which appears to be a clerical error
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zizi v Sifa Investment Limited (Cause E098 of 2023) [2025] KEELRC 972 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/972/eng@2025-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.