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ELRCPartially Allowed· [2025] KEELRC 1896 (KLR)

Tononoka Rolling Mills Limited v Otwoma (Employment and Labour Relations Appeal E085 of 2023) [2025] KEELRC 1896 (KLR)

Employment and Labour Relations Court
25 June 2025
DMD. K. Njagi Marete
690 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that firing an employee without a show-cause notice is unfair, but also cut a large compensation award to three months' salary.

What this practically means

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Executive summary

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This is a first appeal from the Principal Magistrate's Court at Nairobi, which had awarded the Respondent Kshs.448,500/- for unfair termination, notice pay, costs and interest. Tononoka Rolling Mills Limited, the Appellant, challenged both the fairness findings and the quantum. The Appellant conceded no notice to show cause was issued but argued the disciplinary hearing of 26th April 2021 satisfied Section 41 of the Employment Act. The Respondent maintained the termination was procedurally and substantively unfair: a second allegation was introduced at the hearing without notice, he was not informed of his right to representation, and the hearing minutes contained no evidence of misconduct. The court framed two issues: procedural and substantive fairness of the termination, and the justification of the awards. On fairness, it held the failure to issue a notice to show case and to inform the Respondent of the second allegation violated Section 41(1), amounting to a trial by ambush, and that the absence of representation vitiated the process. On substance, the Appellant failed to discharge its burden under Section 43(1); the minutes revealed only interrogatory questions. The court, however, found the lower court erred on notice pay, since the Respondent had already received Kshs.30,000/-, and reduced the 12-month compensation award to three months. The appeal succeeded only in part: the court awarded the Kshs.4,500/- salary differential and three months' compensation totalling Kshs.108,000/-, with each party bearing their own costs of the appeal and claim. Judgment delivered on 25th June 2025 by D. K. Njagi Marete, Judge.

Key legal issues

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01

Procedural fairness of the termination

Holding

The termination was procedurally unfair under Section 41(1) of the Employment Act because no notice to show cause was issued, a second allegation was introduced at the hearing without prior notice, and the employee was not informed of his right to representation.

Reasoning

The suspension letter dated 24th April 2021 cited only one incident, yet a second allegation was introduced at the hearing. The court likened this to the condemned 'cosmetic compliance' in John Rioba Maugo v Riley Falcon Security Services. The absence of a notice to show cause and failure to inform the employee of his right to a representative further vitiated the process, amounting to a trial by ambush.

p. 2
02

Substantive fairness of the termination

Holding

The termination was substantively unjustified because the Appellant failed to discharge its burden under Section 43(1) to prove a valid reason; the hearing minutes contained no evidence of misconduct, only interrogatory questions.

Reasoning

The court found the hearing minutes produced by the Appellant lacked evidence of misconduct. Relying on Antony Mkala Chitavi v Malindi Water & Sewerage Co., unsupported allegations render a termination unfair. The employer bears the burden of proving valid reason, and interrogatory questions alone cannot satisfy it.

p. 2
03

Notice pay award

Holding

The lower court erred in awarding Kshs.34,500/- as notice pay without accounting for the Kshs.30,000/- already paid; only the differential of Kshs.4,500/- was properly due.

Reasoning

The Respondent's payslip confirmed receipt of Kshs.30,000/- as notice pay. The lower court awarded the full Kshs.34,500/- without adjustment, which was an error. The court corrected this by awarding only the differential of Kshs.4,500/- being the difference between the actual salary and the amount already paid.

p. 2
04

Quantum of compensation for unfair termination

Holding

The 12 months' salary compensation awarded by the lower court was reduced to three months' salary (Kshs.103,500.00).

Reasoning

Although the court found the termination both procedurally and substantively unfair, it considered the 12-month award excessive. The Appellant had cited Kenfreight (E.A) Limited v Benson K. Nguti on proportionality. The court reduced compensation to three months' salary of Kshs.34,500, totalling Kshs.103,500.00.

p. 2

Legal principles established

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  • An employer who fails to issue a notice to show cause or inform the employee of the allegation against them violates Section 41(1) of the Employment Act; a disciplinary hearing conducted without notice is a trial by ambush.
  • The burden rests on the employer under Section 43(1) of the Employment Act to prove a valid reason for termination; hearing minutes containing only interrogatory questions do not discharge that burden.

Court orders

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  1. 1.Award of differential in salary for the Respondent of Kshs.4,500
  2. 2.Award of three months' compensation at Kshs.34,500 x 3 = Kshs.103,500.00
  3. 3.Total award of Kshs.108,000.00 in place of the lower court's award of Kshs.448,500/-
  4. 4.Each party to bear their costs of their appeal and claim

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 41(1)
  • Employment ActSection 43
  • Employment ActSection 43(1)
  • Employment ActSection 45

Cases cited (6)

  • Kenfreight (E.A) Limited v Benson K. Nguti
    [2016] eKLR
  • Simon Waweru Mugo v Alice Mwongeli Munyao
    [2020] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Pamela Nelima Lutta v Mumias Sugar Co. Ltd
    [2017] eKLR
  • John Rioba Maugo v Riley Falcon Security Services
    [2016] eKLR
  • Antony Mkala Chitavi v Malindi Water & Sewerage Co.
    [2013] eKLR
On appeal from
Principal Magistrate's Court at Nairobi
Not stated in the judgment
Jurisdiction invoked
First appellate jurisdiction over an appeal from the Principal Magistrate's Court (employment matter); specific provision not cited in the judgment

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, "Tononoka Rolling Mills Limited v Otwoma (Employment and Labour Relations Appeal E085 of 2023) [2025] KEELRC 1896 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1896/eng@2025-06-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.