Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedELRCA Appeal from Mombasa CMELRC No. E267 of 2023· [2025] KEELRC 3690 (KLR)

Sidoman Investments Company Limited v Mcharo (Appeal E154 of 2025) [2025] KEELRC 3690 (KLR)

Employment and Labour Relations Court
18 December 2025
2,768 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

A Kenyan court cut a driver's unfair termination award but ruled that even gross misconduct requires a proper hearing before dismissal.

What this practically means

#

Executive summary

#
This is a first appeal from the judgment of the magistrate's court in Mombasa CMELRC No. E267 of 2023, delivered on 4 August 2025, in which a driver was awarded compensation, service pay, underpayments, notice pay, house allowances and leave pay for unfair termination. The appellant, his employer, challenged the finding of unfair termination, the excessiveness of the 10 months' compensation, the leave award, the underpayment finding, the failure to consider the counterclaim, and the service pay award given NSSF registration. The court, as a first appellate court exercising retrial powers, upheld the finding of unfair termination because the respondent was summoned only to hand over the vehicle, not to a disciplinary hearing, and no minutes of any hearing were produced, contrary to sections 41 and 45 of the Employment Act. It confirmed that the respondent's actual duties driving a truck with a trailer made him a heavy commercial driver, attracting a wage of Ksh. 39,450.86 inclusive of house allowance. It adjusted the awards: compensation recomputed on gross wage to Ksh. 394,508.60, notice pay at Ksh. 39,405.86, service pay recomputed to Ksh. 59,221.15, underpayments limited as a continuing injury to the last 12 months (Ksh. 233,518.32), and accrued leave capped at 18 months (Ksh. 37,653.85). The court also allowed the counterclaim, which the trial court had failed to address, awarding Ksh. 2,563,285 for vehicle losses and Ksh. 113,000 for unreturned accessories, to be offset against the awards. Each party was ordered to bear its own costs for the appeal and the trial court.

Key legal issues

#
01

Fairness of termination

Holding

Termination was unfair for want of a disciplinary hearing contrary to sections 41 and 45

Reasoning

The employee was allegedly summoned only to hand over the vehicle, not to attend a disciplinary hearing. No minutes of any hearing were produced. Where the employer could not reach the employee, this should have been demonstrated to the court; failure to invite the employee to address the misconduct rendered the termination unfair.

p. 4
02

Job category and underpayment

Holding

Although the contract described the respondent as a driver, his actual duties driving a truck with a trailer made him a heavy commercial driver, attracting a regulated wage

Reasoning

The court looked to duties actually allocated rather than the contractual designation. The applicable wage for a heavy commercial driver was Ksh. 34,302.75 plus 15% house allowance (Ksh. 39,450.86), creating a monthly underpayment of Ksh. 19,459.86.

p. 4
03

Counterclaim for negligence and unreturned tools

Holding

Counterclaim allowed for Ksh. 2,563,285 plus Ksh. 113,000 for unreturned items as unchallenged and supported by witnesses

Reasoning

The respondent filed no response to the counterclaim. Under section 19 of the Act the employer may deduct losses caused by an employee's negligence, and the employee was accountable for tools of work allocated to him. The trial magistrate erred in failing to determine the counterclaim despite witnesses testifying.

p. 6

Legal principles established

#
  • Compensation under section 49 of the Employment Act should be tabulated on the gross wage including house allowance
  • Even where gross misconduct justifies summary dismissal, notice to attend and address a disciplinary hearing is mandatory under sections 35 and 41
  • Underpayments constitute a continuing injury claimable only within 12 months of cessation under section 90
  • Accrued leave may accumulate only up to 18 months where the employee fails to apply for leave
  • Service pay is not payable where statutory dues are proved paid; the employer must show proof of statutory payments under section 35(5) and (6)

Court orders

#
  1. 1.Compensation KSh. 394,508.60
  2. 2.Notice pay KSh. 39,405.86
  3. 3.Service pay KSh. 59,221.15
  4. 4.Underpayments KSh. 233,518.32
  5. 5.Accrued leave pay KSh. 37,653.85
  6. 6.Counterclaim allowed: loss to motor vehicle KCL 784D KSh. 2,563,285
  7. 7.Costs of items not handed over KSh. 113,000
  8. 8.The payments above shall be offset, whichever is higher
  9. 9.Each party to bear its own costs for the appeal and trial court

Authorities

#

Legislation

  • Employment Actsection 28(2)
  • Employment Actsection 28(4)
  • Employment Actsection 28
  • Employment Actsection 35(6)
  • Employment Actsection 35(5) and (6)
  • Employment Actsection 35
  • Employment Actsection 31
  • Employment Actsection 19
  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 44
  • Employment Actsection 45
  • Employment Actsection 47(5)
  • Employment Actsection 49
  • Employment Actsection 90
  • Employment Actsection 18(5)(b)

Cases cited (9)

  • Selle & another V Associated Motor Boat Co. Ltd
    [1958] EA 123
  • Peters V Sunday Post
    [1958] EA 424
  • Williams Diamonds Ltd V Brown
    [1970] EA
  • Togom v Radar Limited
    ELRCA No. E003 of 2023
  • Radar Limited v Daniel Jomo Machera
    [2022] eKLR
  • Shanga Kitsao Mumba v Mabati Rolling Mills
    [2017] eKLR
  • Churchill Winstones Ochieng v I & M Bank Limited
    [2025] KEELRC 3338 (KLR)
  • Muthee v Kenya Power & Lighting Company Ltd
    [2025] KEELRC 3342 (KLR)
  • The German School Society & another v Ohany & another
    [2023] KECA
On appeal from
Magistrates' Court (Employment and Labour Relations), Mombasa
CMELRC No. E267 of 2023
Jurisdiction invoked
First appeal from the trial court under the Employment and Labour Relations Court jurisdiction (Employment Act and ELRC Act)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Sidoman Investments Company Limited v Mcharo (Appeal E154 of 2025) [2025] KEELRC 3690 (KLR)", Case Analysis (2025). ELRCA Appeal from Mombasa CMELRC No. E267 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3690/eng@2025-12-18

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