Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedEldoret ELRC Appeal (Memorandum of Appeal dated 25th October 2022 arising from Eldoret CMELRC No. E 5 of 2020)· [2025] KEELRC 1250 (KLR)

School Depot (K) Limited v Kisia (Employment and Labour Relations Appeal E043 of 2022) [2025] KEELRC 1250 (KLR)

Employment and Labour Relations Court
30 April 2025
MOMaureen Onyango
3,164 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

A Kenyan employer claiming an employee absconded must prove it with records and a fair hearing, or the dismissal is unfair — but large compensation awards can be reduced.

What this practically means

#

Executive summary

#
This is a first appeal from the judgment of the Eldoret CMELRC in CMELRC No. E 5 of 2020, delivered on 30th September 2022, in which the Respondent (then Claimant) was awarded Kshs 16,582 for July 2019 salary, Kshs 16,582 in lieu of notice, Kshs 16,550 leave allowance for 2019, and 12 months' salary (Kshs 198,984) for unfair termination, plus certificate of service, costs and interests. The Appellant appealed on grounds that the trial magistrate misapprehended the evidence, ignored submissions, wrongly found dismissal, and made disproportionate awards. The appeal was disposed of by written submissions. The court, guided by Selle v Associated Motor Boat Co., re-evaluated the evidence. On the first issue, it held the burden lay on the employer to prove valid reasons and fair procedure; no disciplinary process was commenced, no attendance registers were produced to show absconding, and no evidence proved the alleged recall to work. The finding of unfair and unprocedural termination was upheld. On quantum, the court substituted the July 2019 salary award with Kshs 11,805 for 22 days worked, substituted notice pay with Kshs 13,951, set aside the leave allowance award as unjustified, and reduced the 12 months' compensation to one month's salary (Kshs 13,951) considering the Respondent's service of less than one year and the section 49(4) factors. The appeal partially succeeded; each party bears their own costs of the appeal, while the lower court's costs order was upheld.

Key legal issues

#
01

Whether the Respondent was unfairly terminated or absconded duty

Holding

The Appellant did not prove absconding; the Respondent was unfairly and unprocedurally terminated

Reasoning

Absconding duty constitutes gross misconduct under section 44(4)(a) of the Employment Act, but the employer bore the burden of proving it. No disciplinary process under section 41 was commenced, no attendance registers were produced, and no evidence of recall to work after investigations was tendered. The trial court's finding of procedural unfairness was therefore upheld.

p. 6
02

Whether the trial court's awards should stand

Holding

Partially: July 2019 salary, notice pay and compensation were substituted with lower amounts; leave allowance was set aside

Reasoning

The court substituted the July 2019 salary with Kshs 11,805 for 22 days worked, notice pay with Kshs 13,951, and reduced the 12 months' compensation to one month's salary at Kshs 13,951 given the Respondent's service of less than one year and the section 49(4) factors. The leave allowance award was set aside because the Respondent had proceeded on leave during the contract.

p. 7

Legal principles established

#
  • The burden of proof in termination of employment is on the employer, who must prove valid reasons and fair procedure
  • Section 41 of the Employment Act prescribes a mandatory procedure of notification, hearing and consideration of representations before termination
  • An employer alleging absconding must produce evidence such as attendance registers and proof of recall to work
  • On a first appeal, the court re-evaluates and re-examines the evidence to reach its own findings

Court orders

#
  1. 1.The award of one month's salary in lieu of notice is upheld but replaced with Kshs 13,951
  2. 2.The award of salary arrears for July 2019 is substituted with Kshs 11,805
  3. 3.The award of 12 months' salary as compensation for unfair termination is substituted with an award of one month's salary at Kshs 13,951
  4. 4.The award of leave allowance is set aside
  5. 5.Each party bears their own costs of the Appeal
  6. 6.The order for costs in the lower court is upheld

Authorities

#

Legislation

  • Employment Actsection 41
  • Employment Actsection 49(1)(a)
  • Employment Actsection 49(1)(c)
  • Employment Actsection 49(4)
  • Employment Act 2007section 44(4)(a)
  • Employment Act 2007section 42(1)
  • Employment Act 2007section 44(3) and (4)

Cases cited (2)

  • Selle & Another Vs Associated Motor Boat Co. Ltd & Another
    (1968) EA 123
  • Jane Achieng & Another vs University of Nairobi
    (2015) eKLR
On appeal from
Eldoret Chief Magistrate's Court (CMELRC)
Eldoret CMELRC No. E 5 of 2020
Jurisdiction invoked
First appellate jurisdiction over Eldoret CMELRC No. E 5 of 2020

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "School Depot (K) Limited v Kisia (Employment and Labour Relations Appeal E043 of 2022) [2025] KEELRC 1250 (KLR)", Case Analysis (2025). Eldoret ELRC Appeal (Memorandum of Appeal dated 25th October 2022 arising from Eldoret CMELRC No. E 5 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1250/eng@2025-04-30

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