Broadways Logistics Limited v Abdulkadir (Appeal E266 of 2024) [2025] KEELRC 2567 (KLR)

Although the appellant asserted the respondent left on 7 December 2020 and never returned, the appellant held a board meeting and resolved to summarily dismiss him. The notice following the 10 December 2020 board meeting was not filed, no notice to show cause was issued allowing the respondent to defend his employment, and no notice was given to the labour officer as required under section 18(5)(b) and section 41(2) of the Employment Act. The mandatory due-process steps were therefore not followed.

The letter of appointment defined the respondent as a truck driver assigned vehicle KCB 599Y/ZE 5349. Under the applicable Wage Orders, a truck driver was entitled to basic pay of Kshs. 30,627.45 plus 15% house allowance of Kshs. 4,594.11, grossing Kshs. 35,221.55. A written agreement to pay Kshs. 25,000 inclusive of house allowance cannot stand because an invalid employment contract cannot bind an employee and wages cannot fall below the legal minimum.

The parties agreed on the work hours given the respondent's role as a heavy commercial driver delivering goods to DRC Congo. The respondent did not dispute the evidence that he had up to 7 days to wait for cargo loading, which balanced his time and rest days. The claim for daily overtime spanning 8 months without rest days was therefore exaggerated and could not stand.

The court must give reasons for awards of compensation, failing which its discretion may be reviewed. The respondent worked only 8 months and failed to account for the delivery order while using the employer's vehicle to DRC Congo; his allegation of handing it to a messenger lacked evidence. Under section 45(5) of the Act, such omission, resulting in loss to the employer, weighed against any award; compensation would reward gross misconduct.

The omission to address the counterclaim rendered the trial judgment incomplete. Where an employee, through omission, commission or misconduct including gross misconduct, causes loss to the employer, the total loss is payable whether or not there is a counterclaim. The respondent's claim that payment of November 2020 salary proved submission of the delivery order was without proof; the loss of Kshs. 300,000 is recoverable from the respondent, offset against his dues.

Unlike commercial disputes, awards of costs in employment claims are discretionary and must adhere to section 12 of the Employment and Labour Relations Court Act and Rule 70 of the Court Rules. Because the trial court gave no reasons for its award of costs, the appellate court found that each party should bear its own costs on that basis.