Roben Aberdare Limited v Merabe (Appeal E029 of 2024) [2025] KEELRC 1881 (KLR)
The bottom line
#An employer in Kenya must still trace and hear an employee before dismissing them for absconding, or the dismissal will be procedurally unfair.
What this practically means
#Executive summary
#Key legal issues
#Date and validity of the reason for dismissal
The respondent was dismissed on 18th October 2023 for absconding, and that reason was valid under section 44(4)(a) of the Employment Act
The appellant pleaded that it only served a show cause letter on 28th September 2023 and dismissed the respondent for absconding on 18th October 2023. The respondent filed no reply and did not deny absconding in evidence. On a balance of probability the court accepted the show cause letter was served and that the dismissal decision was for absconding, a valid reason under section 44(4)(a).
Procedural fairness of the dismissal
The dismissal was procedurally unfair because the respondent was never accorded a hearing before the decision to dismiss for absconding
Section 41 of the Employment Act obliges an employer to hear the employee before termination or summary dismissal. The employer did not demonstrate any effort to trace the respondent - no evidence of phone calls, emails or letters inviting him to a hearing. Following Mombasa Coffee Limited v Shuke, the absconding allegation could not justify dismissal without such demonstrated effort.
Whether the trial court's awards should stand
The awards of compensation, notice pay, certificate of service, costs and interest were reasonable and remain undisturbed
The respondent worked only one and a half years and no misconduct was proved; three months' salary compensation of Kshs.66,000 was reasonable and not shown to be excessive. Notice pay was supported by the appointment letter and section 35(1)(c). There was no cross-appeal on dismissed heads, and the certificate of service is justified under section 51.
Appellant's counter-claim for Kshs.47,421 for lost fuel
The claim failed as unproven on a balance of probability
The trial court erred in not addressing the prayer, so the first appellate court considered it. However, the fuel report covered the whole of September including days the respondent had absconded, his objection about incorrect locations was unrebutted, and the report did not show how the 243.13 litres allegedly siphoned was computed. The claim was therefore not proved.
Legal principles established
#- An employer contemplating dismissal of an absconding employee must make reasonable efforts to trace and hear the employee before deciding dismissal
- Statutory deductions on awards under section 49 of the Employment Act operate by operation of law without need for a court order
Court orders
#- 1.Finding that the dismissal of the respondent was unfair (on procedure) but the reason for dismissal (absconding) was valid
- 2.The reliefs awarded by the trial court (compensation of Kshs.66,000, salary in lieu of notice of Kshs.22,000, certificate of service, costs and interest) shall stand
- 3.The appellant's claim/counter-claim for Kshs.47,421 for lost fuel fails for lack of proof
- 4.The appeal is dismissed save for the finding on the reason for dismissal
- 5.No costs of the appeal awarded
- On appeal from
- Principal Magistrate's Court, Othaya (Employment and Labour Relations Cause)
- E018 of 2023
- Jurisdiction invoked
- First appeal to the ELRC against the judgment of the Principal Magistrate's Employment and Labour Relations Cause
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Roben Aberdare Limited v Merabe (Appeal E029 of 2024) [2025] KEELRC 1881 (KLR)", Case Analysis (2025). ELRC Appeal from Othaya PM ELRC Cause No. E018 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1881/eng@2025-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.