Newmatic Kitchen Kenya Limited v Musyimi (Employment and Labour Relations Appeal E206 of 2024) [2025] KEELRC 2626 (KLR)
The bottom line
#A Kenyan employer who suspects theft must prove it with real evidence, or lose an unfair termination case and pay damages.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court erred in finding that the Respondent's termination of employment was unfair and unlawful
- 2.Whether the trial learned Magistrate erred in disallowing the Appellant's counterclaim
Key legal issues
#Whether the termination of the Respondent's employment was unfair and unlawful
Yes; the trial magistrate did not err. The Respondent proved termination occurred and the Appellant failed to justify the reasons for termination or show any communication or show-cause process
The Respondent was employed from April 2016 as a domestic worker and last earned Kshs 20,000/= in May 2022. She claimed verbal summary dismissal without notice or reasons. The Appellant alleged she absconded to avoid repaying stolen funds. The court found no show cause letter or communication about absconding was produced, no valid reason was proved under section 43, and mere suspicion of theft had to be specifically proved. Under sections 45 and 47(5) the burden had properly shifted to the employer, who failed to discharge it.
Whether the trial magistrate erred in disallowing the Appellant's counterclaim
No; the counterclaim failed because the Appellant produced no tangible evidence of theft or any enforceable agreement to repay
The counterclaim sought recovery of allegedly stolen amounts. Apart from police station statements and the OB, no CCTV footage or other tangible evidence was produced. The Respondent denied recording the statements and claimed she only agreed to repay so as to be allowed back to work. No police officer testified and the Respondent was never charged or convicted of stealing by servant, so the theft and the alleged refund commitment were not proved.
Legal principles established
#- For a termination to pass the fairness test there must be both substantive and procedural fairness; the burden of proving the occurrence of termination lies on the employee under section 47(5) of the Employment Act, and once discharged shifts to the employer to justify the reasons for termination under section 43
- Suspicion of theft by an employee is insufficient; gross misconduct justifying summary dismissal must be specifically proved
- A first appellate court must re-evaluate, re-assess and re-analyse the evidence on the record and determine whether the trial court's conclusions should stand
Court orders
#- 1.The Appeal is dismissed
- 2.Costs of the appeal awarded to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Trial court (Magistrates' Court, per Honourable Lucy Ambasi, CM)
- Not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction of the ELRC over the trial magistrate's judgment (Employment and Labour Relations Court); judgment itself quotes the first-appeal role: 'This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record'
Relief refused
#Setting aside the trial magistrate's judgment and dismissing the Respondent's claim
The Respondent discharged her burden of proving unfair termination and the Appellant failed to justify the reasons for termination
Allowing the Appellant's counterclaim for the alleged stolen funds
No tangible evidence (no CCTV footage, no written repayment agreement) proved the theft or any agreement to repay
Costs
Appeal dismissed with costs to the Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the upshot the Appeal is found unmerited and is hereby dismissed with costs to the Respondent.
To this court therefore, the Respondent discharged her burden of proof that she was unfairly terminated but the Appellant did not justify the reasons for the termination.
The requirement for a fair and valid reason is governed under section 43 of the Employment Act where the termination will be unfair under section 45 if the reasons are not proved.
The ELRC has always held that for termination to pass fairness test there should be both substantive and procedural fairness.
This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way
Issues in the judgment
#The judgment does not state the names of the parties, the case number of the appeal, or the neutral citation; the appeal is identified only by its Memorandum of Appeal dated 26th July 2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Newmatic Kitchen Kenya Limited v Musyimi (Employment and Labour Relations Appeal E206 of 2024) [2025] KEELRC 2626 (KLR)", Case Analysis (2025). Not stated in the judgment (Memorandum of Appeal dated 26th July 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2626/eng@2025-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.