Guni v African Marine & General Engineering & Co Ltd (Appeal E064 of 2025) [2025] KEELRC 2678 (KLR)
The bottom line
#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 magistrate erred in finding that the appellant's absence from work justified summary dismissal
- 2.Whether the provisions of section 45(5)(a) of the Employment Act and the corroborative evidence were considered
- 3.Whether the claims for notice pay, August salary, annual leave, compensation and certificate of service should be allowed
Key legal issues
#Justification of summary dismissal for absence from duty
The summary dismissal was justified; the appellant did not seek permission and did not adequately explain the absence
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.
Entitlement to notice pay and compensation
Not available where summary dismissal is justified
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.
Certificate of service
Due subject to compliance with section 51 procedures
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.
Standard of review on first appeal
Court may reassess evidence but defers to credibility findings
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed as without merit
- 2.Judgment in Mombasa MCELRC No. E086 of 2022 is affirmed (recited in the order as 'MCELRC No. E087 of 2022')
- 3.No orders on costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Notice pay and 12 months' compensation
Summary dismissal for gross misconduct (absence from duty) was justified
Annual leave claim
The appellant submitted approved leave forms, so the trial court's disallowance could not be faulted
Costs
No orders on costs
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.
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.
once an employee is absent from work without permission, summary dismissal is permissible
The sanction of summary dismissal was justified in the given circumstances. Notice pay and compensation are not available.
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
Issues in the judgment
#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
The word 'afirmed' appears misspelled in the final orders
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.