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ELRCDismissedEmployment and Labour Relations Appeal (Nairobi) arising from Nairobi Chief Magistrate's CMEL No. 1623 of 2019· [2025] KEELRC 1376 (KLR)

Rupra Construction Company Limited v Makomere (Civil Appeal E221 of 2023) [2025] KEELRC 1376 (KLR)

Employment and Labour Relations Court of Kenya
9 May 2025
7,118 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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Rupra Construction Company Limited appealed against the judgment of Hon. N. Ruguru, Senior Principal Magistrate, delivered on 6 October 2023 in CMEL No. 1623 of 2019 at Nairobi, which upheld the claimant's claim for unfair termination and awarded a declaration, six months' compensation (Kshs.151,020), one month's notice pay (Kshs.25,170), unpaid leave arrears (Kshs.21,814), unpaid dues (Kshs.22,653), plus costs and interest. The appellant, whose employee was dismissed on 11 June 2019 for alleged abscondment, argued the trial magistrate failed to find gross misconduct under section 44 of the Employment Act, wrongly prioritised procedural fairness over substantive grounds, and wrongly awarded terminal dues. The respondent maintained he was told to go home and wait to be called, and that the appellant produced no evidence of attempts to contact him or of the letter allegedly sent to the Labour office. J.W. Keli, Judge, adopted the issues framed by the appellant and, applying Selle v Associated Motor Boat Co. and Mbogo v Shah, held that the trial court correctly found the reason of absconding was not proved under section 43; that procedural fairness in an abscondment case requires notice of intention to end employment; and that the appellant's own witness admitted leave money was withheld by the Managing Director. The court found no basis to interfere with the reliefs and upheld the trial judgment in its entirety, dismissing the appeal with costs to the respondent on 9 May 2025.

Key legal issues

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01

Whether the Respondent's employment was wrongly terminated (substantive justification for alleged abscondment)

Holding

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

Reasoning

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.

p. 8
02

Whether the termination was procedurally fair under section 41 of the Employment Act

Holding

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

Reasoning

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.

p. 10
03

Whether the reliefs granted by the trial court (compensation, notice pay, leave arrears, dues) were erroneous

Holding

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

Reasoning

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.

p. 12
04

Burden of proof in unfair termination claims

Holding

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

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed for lack of merit with costs to the respondent
  2. 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)

Authorities

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Legislation

  • Employment Act (Chapter 226 of the Laws of Kenya)section 44(4)(d)
  • Employment Act (Chapter 226 of the Laws of Kenya)section 44(4)(a)
  • Employment Actsection 47(5)
  • Employment Actsection 43
  • Employment Actsection 41
  • Employment Actsection 35
  • Evidence Actsection 107
  • Civil Procedure Rules, 2010Order 42 Rule 25

Cases cited (11)

  • Selle v Associated Motor Boat Co. Ltd
    [1968] EA 123
  • Mbogo v Shah
    [1968] EA 93 (observation of De Lestang V.P at page 94)
  • Matsesho v Newton
    (Cause 9 of 2019) [2022] KEELRC 1554 (KLR)
  • Dungani v West Kenya Sugar Company Limited
    (Employment and Labour Relations Appeal 12 of 2023) [2024] KEELRC 172 (KLR)
  • Joseph Njoroge Kiama v Summer Ltd
    [2014] eKLR
  • Cooperative Bank of Kenya Limited v Yator
    (Civil Appeal 87 of 2018) [2021] KECA 95 (KLR)
  • Galgalo Jarso Jillo v Agricultural Finance Corporation
    [2021] eKLR
  • Milano Electronics Limited v Dickson Nyasi Muhaso
    [2021] eKLR
  • Peter Otabong Ekisa v County Government of Busia
    (2017) eKLR
  • Kamotho v Njuca Consolidated Ltd
    (Employment and Labour Relations Appeal E005 of 2022) [2023] KEELRC 541 (KLR)
  • Simon Mbithi Mbane Vs Inter Security Services Limited
    (2018) eKLR
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.