Rupra Construction Company Limited v Makomere (Civil Appeal E221 of 2023) [2025] KEELRC 1376 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent's employment was wrongly terminated (substantive justification for alleged abscondment)
The trial court correctly found the reason of absconding was not proved under section 43 of the Employment Act; no evidence of efforts to contact the Respondent was produced
The appellant gave absconding as the reason for termination but produced no evidence of attempts to reach the Respondent, nor the letter said to have been sent to the Labour office. The court applied section 43 and the Simon Mbithi Mbane principle that an employer alleging abscondment must demonstrate efforts to contact the employee. The respondent's account - being told to go home and wait to be called - was un-rebutted, so the finding of unfair termination stood.
Whether the termination was procedurally fair under section 41 of the Employment Act
Procedural fairness in a case of alleged absconding required notice of intention to end the employment relationship; none was given, and the alleged communication with the Labour office was not produced
The court held that absconding amounts to gross misconduct but the employer is still obliged to issue a notice to show cause before terminating on that basis. The trial court found no evidence of a warning or notice to the claimant, and the appellant's witness produced no proof of the alleged letter to the Labour office, so the finding of procedural unfairness was upheld.
Whether the reliefs granted by the trial court (compensation, notice pay, leave arrears, dues) were erroneous
The reliefs were properly granted: notice pay was due under section 35 for lack of procedural fairness, compensation of 6 months was fair given length of service, and the leave and dues claims were supported by the appellant's witness's admission
The appellant's witness admitted the Managing Director withheld the Respondent's leave pay without reasons, and the trial court explained the basis of the dues as days worked. Applying Mbogo v Shah, the appellate court found no misdirection by the trial court and upheld the award in its entirety.
Burden of proof in unfair termination claims
The claimant discharged his initial burden under section 47(5) by showing he was not called back to work after responding to the show cause letter; the employer then failed to justify the termination
The court reiterated that the employee bears the initial burden of proving unfair termination and the employer must justify the grounds. The claimant's evidence that he responded to the show cause letter and was told to go home and await a call satisfied his burden, and the appellant produced no evidence of attempts to contact him.
Legal principles established
#- Under section 47(5) of the Employment Act, the employee bears the burden of proving unfair termination while the employer bears the burden of justifying the grounds for termination
- An allegation that an employee has absconded duties obliges the employer to reasonably demonstrate that efforts were made to contact the employee without success before dismissal
- An appellate court will not interfere with the exercise of discretion by an inferior court unless satisfied the decision is clearly wrong
Court orders
#- 1.The appeal is dismissed for lack of merit with costs to the respondent
- 2.The Judgment of the Chief Magistrate's Court at Nairobi (Hon. N. Ruguru Senior Principal Magistrate) delivered on 6 October 2023 in Nairobi Chief Magistrate's CMEL No. 1623 of 2019 is upheld in its entirety (declaration that termination was procedurally and substantively unfair; 6 months' compensation Kshs.151,020; one month's notice pay Kshs.25,170; unpaid leave arrears Kshs.21,814; unpaid dues Kshs.22,653; costs of suit and interest)
- On appeal from
- Chief Magistrate's Court at Nairobi (Hon. N. Ruguru Senior Principal Magistrate)
- CMEL No. 1623 of 2019
- Jurisdiction invoked
- First appellate jurisdiction under the Employment and Labour Relations Court Act read with Order 42 of the Civil Procedure Rules, 2010 (appeal from the magistrates' employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kilonzo v Avacare Kenya Limited; Pharmaceutical Society of Kenya (Interested Party) (Employment and Labour Relations Cause 611 of 2019) [2025] KEELRC 2302 (KLR)[2025] KEELRC 2302 (KLR)31 Jul 2025applied
Cite this brief
#Cite this brief
Caselaw, "Rupra Construction Company Limited v Makomere (Civil Appeal E221 of 2023) [2025] KEELRC 1376 (KLR)", Case Analysis (2025). Employment and Labour Relations Appeal (Nairobi) arising from Nairobi Chief Magistrate's CMEL No. 1623 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1376/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.