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ELRCPartially AllowedNot stated in the judgment (appeal against Eldoret CMELRC No. 292 of 2019)· [2025] KEELRC 1269 (KLR)

School Depot (K) Limited v Kapkarich (Employment and Labour Relations Appeal e044 of 2022) [2025] KEELRC 1269 (KLR)

Employment and Labour Relations Court of Kenya
30 April 2025
3,433 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a first appeal from the judgment of the trial court in Eldoret CMELRC No. 292 of 2019, delivered on 30th September 2022, which found that the Respondent's summary dismissal was procedurally unfair and awarded her terminal dues. The Appellant, her former employer, appealed on grounds that the trial court failed to consider the evidence and submissions, made findings contrary to the evidence, and made disproportionate awards. Guided by Selle & Another v Associated Motor Boat Co. Ltd, the court re-evaluated the evidence. On the first issue, it held that although absconding duty constitutes gross misconduct under section 44(4)(a) of the Employment Act, the employer produced no attendance registers, no evidence of disciplinary action under section 41, and no proof of the alleged recall of the Respondent after investigations. The trial court's finding of unfair and unprocedural termination was upheld. On quantum, the court varied the awards: July 2019 salary arrears and pay in lieu of notice were each substituted at Kshs. 15,525 (the Respondent's actual monthly pay); the award of leave allowance for 2016-2019 was set aside because the Respondent had taken leave during her contract; and the award of 12 months' salary as compensation for unfair termination was reduced to one month's salary (Kshs. 15,525) after considering the section 49(4) factors, given her just over two years of service. The lower court's costs order was upheld, but each party was ordered to bear its own costs of the appeal. Judgment dated, signed and delivered virtually on 30th April 2025 by Maureen Onyango, Judge.

Key legal issues

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01

Whether the Respondent was unfairly terminated or absconded duty

Holding

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.

Reasoning

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.

p. 7
02

Whether the trial court's awards were disproportionate and should be interfered with

Holding

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.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.Award of salary arrears for July 2019 substituted at Kshs. 15,525
  2. 2.Award of one month's salary in lieu of notice substituted at Kshs. 15,525
  3. 3.Award of leave allowance set aside
  4. 4.Award of 12 months' salary as compensation for unfair termination substituted with one month's salary at Kshs. 15,525
  5. 5.Order for costs in the lower court upheld
  6. 6.Each party to bear its own costs of the appeal

Authorities

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Legislation

  • Employment Act, 2007section 45(2)
  • Employment Act, 2007section 41
  • Employment Act, 2007section 42(1)
  • Employment Act, 2007section 44(3)
  • Employment Act, 2007section 44(4)
  • Employment Act, 2007section 49(1)(a)
  • Employment Act, 2007section 49(1)(c)
  • Employment Act, 2007section 49(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 (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

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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, "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.