School Depot (K) Limited v Kapkarich (Employment and Labour Relations Appeal e044 of 2022) [2025] KEELRC 1269 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent was unfairly terminated or absconded duty
The Appellant failed to prove the Respondent absconded duty; no disciplinary process was commenced under section 41 and no attendance registers or recall evidence were tendered; the summary dismissal was procedurally unfair.
The employer asserted the Respondent absconded after being implicated in a theft incident and was later recalled but could not be reached. The court found no evidence of disciplinary action under section 41, no attendance registers to prove absence, and no evidence of the alleged recall. Absconding constitutes gross misconduct under section 44(4)(a), but the burden lay on the employer to prove it, which was not discharged. The trial court's finding of unfair termination was therefore upheld.
Whether the trial court's awards were disproportionate and should be interfered with
The awards for July 2019 salary and pay in lieu of notice were reduced to Kshs. 15,525 each (actual monthly earnings); the leave allowance award was set aside; the 12 months' compensation was substituted with one month's salary under section 49(4) of the Employment Act.
The court reviewed each head. It noted the Appellant admitted owing July 2019 salary and awarded the Respondent's actual monthly pay of Kshs. 15,525. Pay in lieu of notice followed from the finding of unfair dismissal. Leave allowance was set aside because the Respondent had taken leave. Twelve months' compensation was inordinately high for an employee with just over two years' service, and one month's salary was substituted after considering section 49(4) factors.
Legal principles established
#- The burden of proof in termination of employment lies on the employer to prove valid reasons and fair procedure
- Section 41 of the Employment Act mandates notification, a hearing and consideration of the employee's representations before termination
- On a first appeal, the court must re-evaluate and re-examine the evidence adduced in the trial court and reach its own findings
- Section 49(4) factors must be considered in calibrating compensation; length of service bears on whether maximum compensation is warranted
Court orders
#- 1.Award of salary arrears for July 2019 substituted at Kshs. 15,525
- 2.Award of one month's salary in lieu of notice substituted at Kshs. 15,525
- 3.Award of leave allowance set aside
- 4.Award of 12 months' salary as compensation for unfair termination substituted with one month's salary at Kshs. 15,525
- 5.Order for costs in the lower court upheld
- 6.Each party to bear its own costs of the appeal
- On appeal from
- Eldoret Chief Magistrate's Court (Employment and Labour Relations) - CMELRC
- CMELRC No. 292 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court (Employment and Labour Relations Court appeal from Eldoret CMELRC No. 292 of 2019)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "School Depot (K) Limited v Kapkarich (Employment and Labour Relations Appeal e044 of 2022) [2025] KEELRC 1269 (KLR)", Case Analysis (2025). Not stated in the judgment (appeal against Eldoret CMELRC No. 292 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1269/eng@2025-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.