H Young & Co. (EA) Ltd v Kilungya (Employment and Labour Relations Appeal E022 of 2024) [2025] KEELRC 2223 (KLR)
The bottom line
#Kenya's Employment Court confirmed an employer must prove theft allegations with real evidence, not suspicion, before summarily dismissing an employee.
What this practically means
#Executive summary
#Key legal issues
#Substantive fairness of summary dismissal for theft/negligence
Termination was substantively unfair; the allegation of theft was unsubstantiated
Under Section 44(4)(a) the Appellant alleged gross misconduct, but provided no direct evidence such as CCTV footage, witness testimony or police findings linking the Respondent to the missing gearbox part. His role as mechanic in charge, without corroboration, did not establish culpability, so the burden under Section 43(1) was not discharged.
Procedural fairness - service of notice to show cause and hearing notices
Proper service was not proved; the termination was procedurally unfair
The Appellant relied on unsigned acknowledgments and an unverified email address the Respondent denied. The Respondent's denial was not countered, and no alternative means of communication such as phone calls or physical delivery were attempted, so the Section 41 hearing requirement was not met.
Entitlement to notice pay and maximum compensation
Trial court correctly awarded one month's notice pay and 12 months' salary as compensation
Where termination is unfair, notice pay becomes payable notwithstanding summary dismissal. The award equivalent to 12 months' salary was a lawful exercise of discretion under Section 49(1)(c), guided by established principles, and was neither misdirected nor manifestly unjust.
Legal principles established
#- Mere suspicion of misconduct is insufficient; the employer must prove allegations on a balance of probabilities
- The employer bears the burden under Section 43(1) of the Employment Act to prove the reasons for termination
- Procedural fairness requires genuine efforts to afford the employee a hearing, including exploring alternative means of communication
Court orders
#- 1.Appeal dismissed
- 2.Each party to bear their own costs of the appeal
- On appeal from
- Magistrates' Court
- Jurisdiction invoked
- First appellate jurisdiction over the Magistrates' Court judgment (Memorandum of Appeal dated 26th January, 2024)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "H Young & Co. (EA) Ltd v Kilungya (Employment and Labour Relations Appeal E022 of 2024) [2025] KEELRC 2223 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 26th January, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2223/eng@2025-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.