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ELRCPartially AllowedELRC Appeal from Othaya PM ELRC Cause No. E018 of 2023· [2025] KEELRC 1881 (KLR)

Roben Aberdare Limited v Merabe (Appeal E029 of 2024) [2025] KEELRC 1881 (KLR)

Employment and Labour Relations Court
27 June 2025
4,116 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Nyeri against the judgment of Hon. M.N. Munyendo, Principal Magistrate, in Othaya ELRC Cause No. E018 of 2023, which found that the respondent driver had been unfairly dismissed and awarded him compensation, notice pay, leave pay, a certificate of service, costs and interest. The appellant employer sought to set aside that judgment, contending the respondent was lawfully dismissed for siphoning fuel and absconding, that the award should have been subjected to statutory deductions, and that its counter-claim of Kshs.47,421 for lost fuel was ignored. The court re-evaluated the evidence, applying the first-appeal mandate exemplified by Selle v Associated Motor Boat Co. It found, on a balance of probability, that the respondent was served with a show cause letter on 28th September 2023 and dismissed on 18th October 2023 for absconding, a valid reason under section 44(4)(a) of the Employment Act. However, applying section 41 and the authority of Mombasa Coffee Limited v Shuke, the court held the dismissal procedurally unfair because the employer made no demonstrated effort to trace and hear the respondent before dismissing him. The trial court's awards were found reasonable and left undisturbed; the absence of an order for statutory deductions was not fatal since section 49(2) operates by command of statute. The fuel counter-claim failed for lack of proof. Save for the finding on the reason for dismissal, the appeal was dismissed with no order as to costs, the appellant having partially succeeded.

Key legal issues

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01

Date and validity of the reason for dismissal

Holding

The respondent was dismissed on 18th October 2023 for absconding, and that reason was valid under section 44(4)(a) of the Employment Act

Reasoning

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).

p. 6
02

Procedural fairness of the dismissal

Holding

The dismissal was procedurally unfair because the respondent was never accorded a hearing before the decision to dismiss for absconding

Reasoning

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.

p. 8
03

Whether the trial court's awards should stand

Holding

The awards of compensation, notice pay, certificate of service, costs and interest were reasonable and remain undisturbed

Reasoning

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.

p. 8
04

Appellant's counter-claim for Kshs.47,421 for lost fuel

Holding

The claim failed as unproven on a balance of probability

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 1.Finding that the dismissal of the respondent was unfair (on procedure) but the reason for dismissal (absconding) was valid
  2. 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. 3.The appellant's claim/counter-claim for Kshs.47,421 for lost fuel fails for lack of proof
  4. 4.The appeal is dismissed save for the finding on the reason for dismissal
  5. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.