Ahmed v Akuno (Appeal E064 of 2023) [2025] KEELRC 1386 (KLR)

The memorandum of appeal dated 29th November 2023 did not include the privity of contract issue. The appellant raised it for the first time in submissions dated 4th April 2025 without leave. Under Order 42 Rule 4 of the Civil Procedure Rules, a party cannot change the nature of its case at submissions stage, and the court cannot rest its decision on an unpleaded ground without giving the affected party sufficient opportunity to contest it.

Section 41 of the Employment Act requires notification of charges, a hearing, time to prepare a defence, and the right to be accompanied by a fellow employee. The meetings of 25th March and 3rd June 2021 were staff meetings, not disciplinary hearings, and the alleged verbal warnings lacked verifiable evidence. The elements in Postal Corporation of Kenya v Andrew K. Tanui were not met.

Once the respondent testified that he was terminated without notice to show cause or a hearing, the burden shifted to the appellants under Sections 43 and 45(2)(a) and (b) to prove valid reasons. The termination letter stated no reason, the complaints were oral and unspecified, and no performance management or appraisal system was demonstrated to justify termination for poor performance.

The trial magistrate did not set out reasons or consider the Section 49(4) factors (wishes of the employee, contribution, duration of service, mitigation), justifying appellate interference with the discretion. Compensation was reduced to two months considering the respondent's contribution, short service and lack of appeal. Gratuity was contractual under clause 5(1) but computed on 35 rather than 36 months.