Focus Logistics Limited v Otieno (Employment and Labour Relations Appeal E230 of 2024) [2025] KEELRC 1931 (KLR)
The bottom line
#Even when an employee commits serious misconduct, Kenyan employers must still give notice and a hearing before firing, or the dismissal is unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was unfair despite alleged gross misconduct
Yes - the failure to adhere to section 41 of the Act rendered the termination unfair, even if the employee carried unauthorised cargo
The employer had a rule against unauthorised cargo, but the right to terminate for misconduct is regulated by section 41, which entitles the employee to notice and a hearing before another employee of his choice. The appellant failed to follow that process; an employer who has invited an employee to show cause but gets no response must still terminate by notice served on the Labour Officer under section 18. The trial court's finding of unfair termination therefore could not be criticised.
Admissibility of electronic photographs without a certificate under section 106B Evidence Act
The Evidence Act does not apply to Employment Act claims; the employee's conduct was taken into account
The respondent relied on section 106B to exclude the ISPY Trackers photographs, but the court held that the Evidence Act's principles do not govern Employment Act claims, which are not akin to criminal or commercial disputes. The fact of carrying unauthorised cargo was not significantly challenged and was considered in assessing compensation under section 45(5).
Quantum of compensation
Maximum award under section 49 requires judicial reasons; reduced to one month's gross pay given the employee's conduct
Following Kenya Broadcasting Corporation v Geoffrey Wakio, the award of maximum compensation must rest on sound judicial principles and the discretion must not be capricious or whimsical. The trial court granted 12 months without reasons and without considering the employee's conduct. Given the loss caused by carrying unauthorised cargo, one month was appropriate.
Limitation on continuing injuries
Service pay, underpayments and rest-day claims are continuing injuries claimable only within 12 months under section 89
Statutory dues accrue monthly; failure to pay them is a continuing injury arising monthly and must be addressed within 12 months of cessation under section 89. Claims said to have accrued in 2015 (service pay, underpayments from May 2015 to August 2016) abated; underpayment from May 2018 to November 2020 was recoverable for the last 12 months only.
Accrued leave
Leave does not accumulate beyond 18 months unless approved; respondent entitled to 33 leave days as employer produced no leave records
Leave is protected under section 28 but does not accumulate beyond eighteen months unless approved by the employer. Because the appellant failed to submit work records showing leave allocation, and its practice of assigning trucks to available drivers exposed it to risk, the respondent was entitled to 33 leave days valued at Ksh.33,000.
Legal principles established
#- Even where there is gross misconduct, an employee is entitled under section 41(2) of the Employment Act to notice and a hearing in the presence of another employee of his choice before termination
- Where an employee invited to show cause for gross misconduct refuses to respond, the employer must terminate by issuing notice, served on the Labour Officer under section 18 of the Act
- The Evidence Act (including section 106B on certificates for electronic evidence) does not apply to employment claims under the Employment Act
- Maximum compensation of 12 months cannot be awarded without judicial reasons; discretion must not be capricious or whimsical
- Leave days do not accumulate beyond eighteen months unless approved by the employer; burden lies on employer to produce leave records
- Continuing injuries (service pay, underpayments, rest days) must be claimed within 12 months under section 89 of the Act
Court orders
#- 1.Compensation of Ksh.35,221.50 (reduced from maximum 12 months to one month)
- 2.Notice pay of Ksh.35,221.50
- 3.Off days Ksh.14,349.40
- 4.Leave days Ksh.33,000
- 5.Underpayments Ksh.62,658.90
- 6.Certificate of service to be issued
- 7.Claim for unremitted NSSF dues 2017 disallowed
- 8.Claims for service pay, October 2020 salary, public holidays and pre-limitation underpayments disallowed
- 9.Each party to bear its own costs of the appeal
- On appeal from
- Magistrates' Court (CMELRC), Mombasa
- Mombasa CMELRC No. E074 of 2022
- Jurisdiction invoked
- First appellate jurisdiction over a suit from the magistrates' court (Employment and Labour Relations Court Act); no specific provision quoted in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Focus Logistics Limited v Otieno (Employment and Labour Relations Appeal E230 of 2024) [2025] KEELRC 1931 (KLR)", Case Analysis (2025). Not stated on face of judgment (appeal from Mombasa CMELRC No. E074 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1931/eng@2025-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.