Structural Construction International Limited v Muleka (Employment and Labour Relations Appeal E120 of 2024) [2025] KEELRC 1361 (KLR)
The bottom line
#A Kenyan employer lost its appeal because it could not prove an employee absconded, having skipped every required fairness step before termination.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent's employment was unfairly terminated
Yes - the trial court's finding of unfair (substantively and procedurally) termination was upheld; the alleged abscondment was not proved and no disciplinary process or notice to show cause was issued.
The trial court found the abscondment allegation unsupported: there was no notice to show cause, no disciplinary hearing, and the appellant allowed the respondent to continue working after the 19th November 2018 termination notice, which waived it. RW admitted there was no disciplinary hearing. The employer failed to comply with section 41 of the Employment Act in proving abscondment, so the termination was unfair both substantively and procedurally.
Whether the trial court erred in the reliefs granted (notice pay and 9 months' compensation)
No - notice pay was due under section 35 given lack of procedural fairness, and the 9 months' compensation was a judicious exercise of discretion; no basis to interfere.
The appeal on reliefs hinged on the finding of unfair termination, which was upheld. Notice pay was due under section 35 of the Employment Act. On the 9 months' compensation, the trial court considered the manner of termination, the respondent's 4 years of service, travel between sites, and his importance to the appellant. Applying Mbogo v Shah, the appellate court found no basis to interfere with the discretion exercised.
Burden of proof under section 47(5) of the Employment Act
The claimant laid sufficient basis for the claim of termination, which elicited an informed response from the employer; the employer then bore the burden of justifying the termination and failed.
The appellant argued the respondent never discharged the initial burden of proving summary dismissal. The court found the claimant had laid sufficient basis for the claim of termination of employment, which elicited an informed response from the employer under section 47(5). The employer's evidence, including the admitted termination notice and Director's testimony, established termination; the employer's abscondment defence was unproved.
Legal principles established
#- An employer alleging that an employee deserted or absconded duty must demonstrate efforts made towards getting the employee to resume duty, and at the very least must issue a notice that termination on the grounds of desertion is being considered.
- An appellate court will not interfere with a trial court's exercise of discretion unless it is satisfied the decision is clearly wrong, having misdirected itself, acted on wrong matters, or failed to consider relevant matters.
- A first appellate court must reconsider and evaluate the evidence itself and draw its own conclusions while making due allowance for not having seen or heard the witnesses.
Court orders
#- 1.The appeal is dismissed with costs to the respondent
- 2.The entire judgment of Honourable Rawlings Liluma Musiega (SRM) delivered in Nairobi on the 16th February, 2024 in Nairobi CMELRC No. E818 of 2020 is upheld
- On appeal from
- Chief Magistrate's Court (Employment and Labour Relations), Nairobi
- Nairobi CMELRC No. E818 of 2020
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court (Employment and Labour Relations Court), pursuant to the Memorandum of Appeal dated 25th April, 2024 (statutory provision not expressly cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Structural Construction International Limited v Muleka (Employment and Labour Relations Appeal E120 of 2024) [2025] KEELRC 1361 (KLR)", Case Analysis (2025). Appeal filed by Memorandum of Appeal dated 25th April, 2024 against Nairobi CMELRC No. E818 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1361/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.