Omusundi v Kitui Flour Mills Limited (Appeal E049 of 2025) [2025] KEELRC 2664 (KLR)
The bottom line
#A Kenyan employee who ignores an employer's notice to show cause loses all rights to claim unfair dismissal compensation.
What this practically means
#Executive summary
#Key legal issues
#Effect of failure to respond to a notice to show cause
The summary dismissal was justified; the appellant cannot claim notice pay or compensation
The appellant was served with a notice to show cause dated 25 September 2023 requiring him to explain why his employment should not terminate following theft charges. He did not reply, despite his own pleadings acknowledging receipt. Relying on Ogutu and Gachuri, the court held the employer had fulfilled section 41 requirements, and the dismissal was therefore justified, defeating claims for notice pay and compensation.
House allowance claim
The claim fails because payment statements already provided a house allowance
Although the written contract of 1 July 2019 at Ksh. 24,083 did not state a house allowance, the payment statements for June to September 2023 included a house allowance of Ksh. 4,972, which was not challenged. The claim for 79 months' house allowance therefore failed.
Unpaid leave claim
The claim fails because accrued leave days were paid in the terminal dues
The discharge voucher dated 12 October 2023 included a payment of Ksh. 33,469 for accrued leave days. The terminal dues paid factored in accrued leave days and days worked, so the trial court's finding was upheld.
Scope of first appeal
The court is entitled to review, reassess and make its own findings on the evidence
As a first appeal, the court reappraises the evidence and draws its own conclusions, though in this case it affirmed the trial court's findings.
Legal principles established
#- An employee served with a notice to show cause who fails to respond cannot later claim that their employment rights were breached, and is precluded from relief under section 47(5) of the Employment Act
Court orders
#- 1.The appeal is dismissed
- 2.Costs to the respondent
- On appeal from
- Magistrates' Court (ELRC), Mombasa
- CMELRC No. E749 of 2023
- Jurisdiction invoked
- First appellate jurisdiction of the Employment and Labour Relations Court over the subordinate court judgment (the judgment states 'This is a first appeal. The court must review, reassess, and make findings.')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omusundi v Kitui Flour Mills Limited (Appeal E049 of 2025) [2025] KEELRC 2664 (KLR)", Case Analysis (2025). Mombasa CMELRC No. E749 of 2023 (appeal against that judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2664/eng@2025-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.