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ELRCDismissedMombasa ELRC Appeal (judgment delivered 2 October 2025)

Guni v African Marine & General Engineering & Co Ltd (Appeal E064 of 2025) [2025] KEELRC 2678 (KLR)

Employment and Labour Relations Court
2 October 2025
812 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Mombasa against a magistrate's judgment of 21 March 2025 in Mombasa MCELRC No. E086 of 2022, in which the appellant, a former employee of the respondent, had been awarded only Ksh. 6,300 for unpaid days worked, with his claims for notice pay, August 2021 salary, one year's leave pay, 12 months' compensation, certificate of service and costs dismissed. The appellant worked for the respondent from 2007 under a contract ending in 2016 and was re-employed in 2021 as a ship repairer on Ksh. 21,000 monthly. He claimed wrongful termination on 10 August 2021. The respondent maintained he was engaged as a blaster on a one-year contract, was habitually absent, was issued a notice to show cause, and was summarily dismissed after failing to adequately explain his absence from 10 to 17 August 2021, allegedly to attend his father-in-law's burial, for which no permission had been sought. Mbarũ J, sitting as a first appellate court, restated the court's power to reassess evidence while deferring to credibility findings. Relying on section 44(4)(a) of the Employment Act and the cited authorities, the court held that absence without permission is gross misconduct justifying summary dismissal where the explanation is unsatisfactory. The leave claim failed because approved leave forms existed, and a certificate of service was due subject to section 51 procedures. No submissions were filed despite directions. The appeal was dismissed, the trial judgment affirmed, with no orders on costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial magistrate erred in finding that the appellant's absence from work justified summary dismissal
  2. 2.Whether the provisions of section 45(5)(a) of the Employment Act and the corroborative evidence were considered
  3. 3.Whether the claims for notice pay, August salary, annual leave, compensation and certificate of service should be allowed

Key legal issues

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01

Justification of summary dismissal for absence from duty

Holding

The summary dismissal was justified; the appellant did not seek permission and did not adequately explain the absence

Reasoning

Section 44(4)(a) of the Employment Act defines absence from duty as gross misconduct. The employer may require an explanation and, if unsatisfactory, impose summary dismissal. The appellant alleged attending a father-in-law's burial but sought no prior permission and returned only days later with a village chairman's letter. Authorities cited establish that once an employee is absent without permission, summary dismissal is permissible.

p. 2
02

Entitlement to notice pay and compensation

Holding

Not available where summary dismissal is justified

Reasoning

Because the dismissal was for a justified reason and followed a fair procedure (notice to show cause, reply considered), the statutory remedies of notice pay and the 12 months' compensation under section 49 were unavailable. The magistrate's award of Ksh. 6,300 for unpaid days worked stood.

p. 2
03

Certificate of service

Holding

Due subject to compliance with section 51 procedures

Reasoning

The court found a certificate of service was due but conditional on the appellant following the procedures outlined in section 51 of the Employment Act. The appeal otherwise failed and the trial judgment was affirmed.

p. 3
04

Standard of review on first appeal

Holding

Court may reassess evidence but defers to credibility findings

Reasoning

As a first appeal, the court is entitled to reassess, review and reach its own conclusions on the record. However, lacking the advantage of observing witness demeanour, it should be reluctant to disturb findings that turn on credibility unless compelling grounds exist, per Top Tank Company Limited v Amos Ondiek Wandaye.

p. 2

Legal principles established

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  • On a first appeal the court reassesses the evidence but should be reluctant to upset findings turning on witness credibility absent compelling grounds
  • Absence from duty without permission constitutes gross misconduct justifying summary dismissal where the employee's explanation is unsatisfactory

Court orders

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  1. 1.The appeal is dismissed as without merit
  2. 2.Judgment in Mombasa MCELRC No. E086 of 2022 is affirmed (recited in the order as 'MCELRC No. E087 of 2022')
  3. 3.No orders on costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Magistrates' Court (ELRC), Mombasa
Mombasa MCELRC No. E086 of 2022
Jurisdiction invoked
First appeal to the ELRC from the magistrate's court under the Employment Act / ELRC jurisdiction (not expressly cited in judgment)

Relief refused

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Setting aside the trial court's judgment in its entirety

The summary dismissal was justified as the appellant absented himself without permission and failed to adequately explain the absence

p. 3

Notice pay and 12 months' compensation

Summary dismissal for gross misconduct (absence from duty) was justified

p. 2

Annual leave claim

The appellant submitted approved leave forms, so the trial court's disallowance could not be faulted

p. 2

Costs

No orders on costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, the appeal is without merit and is hereby dismissed. Judgment in Mombasa MCELRC No. E087 of 2022 is hereby afirmed. No orders on costs.
p. 3Final orders - appeal dismissed and trial judgment affirmed
once an employee is absent from work without permission, summary dismissal is permissible
p. 2Gross misconduct - absence from duty
The sanction of summary dismissal was justified in the given circumstances. Notice pay and compensation are not available.
p. 2Remedies following justified summary dismissal
Thus, I should be reluctant to upset the trial court’s decision that turns on assessment of the credibility of witnesses unless there are compelling grounds to do so
p. 2First appeal - deference to trial court credibility findings

Issues in the judgment

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material

The appeal is said to arise from Mombasa MCELRC No. E086 of 2022, but the final order affirms judgment in 'MCELRC No. E087 of 2022' - an internal case-number inconsistency

minor

The word 'afirmed' appears misspelled in the final orders

minor

Order 12 of the appellant's claimed reliefs reads 'For days, I worked. This was assessed and allocated.' - garbled drafting referring to the awarded unpaid days

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, "Guni v African Marine & General Engineering & Co Ltd (Appeal E064 of 2025) [2025] KEELRC 2678 (KLR)", Case Analysis (2025). Mombasa ELRC Appeal (judgment delivered 2 October 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2678/eng@2025-10-02

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