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ELRCPartially AllowedNot stated in judgment· [2025] KEELRC 2536 (KLR)

Hakika Transport Services Limited v Musango (Appeal E059 of 2025) [2025] KEELRC 2536 (KLR)

Employment and Labour Relations Court
25 September 2025
MMM. MBARŨ
2,111 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court upheld a driver's unfair dismissal claim, ruling employers must prove workers knew disciplinary policies and cannot blame staff for missing records.

What this practically means

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Executive summary

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This ELRC judgment at Mombasa, delivered by M. Mbarũ, Judge, on 25 September 2025, determines a first appeal against the judgment of 6 March 2025 in Mombasa CMELRC No. E636 of 2023. The respondent, a driver employed from April 2015, was summarily dismissed on 10 March 2023 on grounds of underperformance (trips below a 50-visit monthly target) and a shortage of 196 litres of diesel in January 2023. The trial magistrate found the termination unlawful and unfair and awarded notice pay, three years' house allowance, overtime, accrued leave, NSSF/NHIF refunds and six months' compensation. The appellant contended the awards were unjustified and excessive. On re-evaluation of the record as a first appeal, the court found that the allegations lacked particulars, the record-keeping duty lay with the employer, the underperformance sheet was not disclosed before the disciplinary hearing, and no surcharge had been recovered for the lost fuel. The finding of unfair termination was upheld, notice pay was assessed at KSh. 22,700, and compensation was reduced from six to three months (KSh. 68,100) with reasons given. Overtime was refused because the written contract outlined shift hours and trips were paid; leave was limited to 10 accrued months (KSh. 12,035); public holiday, NSSF/NHIF refund and severance claims failed. The judgment in Mombasa CMELRC No. E636 of 2023 was varied accordingly, with costs at the trial court to the respondent and each party bearing its own costs of the appeal.

Key legal issues

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01

Validity and fairness of summary dismissal

Holding

The summary dismissal was unfair as the allegations lacked particulars and the underperformance records were not brought to the respondent's notice

Reasoning

The reasons for dismissal (fuel shortage and underperformance) were unsubstantiated: no particulars were given, the record-keeping duty lay with the employer, the underperformance sheet was not shared before the disciplinary hearing, and no surcharge was levied for the alleged lost fuel. Applying sections 41 and 44 of the Employment Act, the reasons were devoid of validity and reasonableness.

p. 4
02

Quantum of compensation

Holding

6 months' compensation reduced to 3 months with reasons given

Reasoning

Although the unfair termination finding was upheld, the court gave reasons for reducing compensation: the respondent was invited to show cause, replied, attended the disciplinary hearing without requesting more time, and had a previous warning. On the gross wage of Ksh. 22,700, 3 months yields Ksh. 68,100.

p. 4
03

Leave pay

Holding

Leave awarded only for the 10 months from June 2022 to March 2023 not accounted for

Reasoning

Under section 28 of the Employment Act annual leave is a right, but the leave application sheets for 2019, 2021 and 2022 were unchallenged. Accrued leave was limited to 10 months, entitling the respondent to 19 days based on the last basic wage, totalling Ksh. 12,035.

p. 5
04

Overtime claim

Holding

Overtime not justified

Reasoning

The respondent had a written contract outlining regular and night shift hours, and any overtime was based on trips performed, with the January 2023 payment statement showing KSh. 5,010 for trips. The claim of 4 hours daily overtime for 84 months was therefore unsupported.

p. 5

Legal principles established

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  • Workplace policies expanding grounds for summary dismissal must be brought to the employee's attention and cannot punish an employee unaware of them
  • The employer bears the legal burden of proof that the employee was apprised of workplace policies and procedures
  • The employer must demonstrate substantial justification for terminating employment
  • The duty to keep employment records cannot be vested in the employee
  • A court must give reasons for any award of compensation for unfair termination

Court orders

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  1. 1.Finding that employment was terminated unfairly
  2. 2.Compensation of KSh. 68,100 (3 months' gross wage)
  3. 3.Leave pay of KSh. 12,035
  4. 4.Certificate of service to be issued
  5. 5.Costs at the trial court to the respondent
  6. 6.On the appeal, each party to bear its own costs
On appeal from
Magistrates' Court (ELRC), Mombasa
Mombasa CMELRC No. E636 of 2023
Jurisdiction invoked
First appeal from the magistrates' court in employment and labour relations matters (ELRC appellate jurisdiction)

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, "Hakika Transport Services Limited v Musango (Appeal E059 of 2025) [2025] KEELRC 2536 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2536/eng@2025-09-25

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