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ELRCPartially AllowedAppeal against Mavoko MCELRC Cause No. E006 of 2023 (appeal number not stated in judgment)· [2025] KEELRC 3708 (KLR)

Mas Intimates Kenya (EPZ) Limited v Ochieng (Employment and Labour Relations Appeal E012 of 2025) [2025] KEELRC 3708 (KLR)

Employment and Labour Relations Court
17 December 2025
JKJ.W. Keli
4,735 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled an employee who absconded was fairly terminated because the employer sent proper show-cause letters, reversing all awards against the employer.

What this practically means

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Executive summary

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The Appellant appealed against the judgment of the Hon. D.K. Kuto (SPM) delivered on 6th February 2025 in Mavoko MCELRC Cause No. E006 of 2023, which had allowed the Respondent's claim for unfair termination and awarded notice pay, twelve months' compensation and unpaid 2021 leave. The Respondent alleged she was summarily dismissed on 1st July 2022 after refusing to resign; the Appellant maintained she absconded from 2nd July 2022 and was deemed to have vacated her post by a letter of 12th July 2022 after unresponsive show-cause letters of 6th and 12th July 2022. Framing two issues - whether the trial court erred in finding unfair termination, and whether it erred on the reliefs - the court applied section 45(2) of the Employment Act, requiring both substantive justification and procedural fairness. It found absconding to be gross misconduct under section 44 and a valid reason for termination, and held that the two notices issued under certificate of postage, which the Respondent did not deny receiving, satisfied section 41. Following New World Stainless Steel Limited v Cosmas Mbaulu Munyasya, the court held the 12th July 2022 letter lawfully ended the relationship after the Respondent failed to show cause. The trial court's finding of unfair termination was therefore reversed. On reliefs, the leave award was set aside as double payment given the December 2021 leave encashment, and the notice and compensation awards fell away. The appeal was allowed; the trial judgment and decree were set aside and the claim dismissed, with costs of the appeal to the Appellant.

Key legal issues

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01

Whether the termination of the Respondent's employment was unfair

Holding

The termination was fair. Absconding is a valid reason for termination under section 44, and the employer complied with section 41 by issuing the show-cause letters of 6th and 12th July 2022 under certificate of postage.

Reasoning

The trial court had found unfairness because the claimant was not heard, relying on sick-leave documents. On appeal, the court found the sick sheets covered April and May while the respondent worked throughout June, so the absenteeism accusation could stand. The notices of 6th and 12th July 2022, which the respondent did not deny receiving, satisfied section 41. Following New World Stainless Steel, the letter of 12th July 2022 lawfully ended the relationship after the respondent failed to respond.

p. 8
02

Whether the awards of notice pay, compensation and unpaid leave were justified

Holding

The awards of notice pay and compensation were set aside because termination was fair; the leave award was set aside as double payment given the December 2021 leave encashment.

Reasoning

With the finding of fair termination, the substratum of the notice and compensation awards fell away. On leave, the pay advice produced by the claimant showed a leave balance of 8.75 days as at December 2021 which had been encashed, so awarding 2021 leave again was duplicative.

p. 9

Legal principles established

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  • An employer alleging that an employee has absconded duty must show efforts made to reach out to the employee to put them on notice that termination on that ground is being considered
  • Fairness of termination requires both substantive justification and procedural fairness
  • Issuance of show-cause notices under certificate of postage is prima facie evidence of compliance with section 41 in absconding cases

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment and Decree of the Hon. D.K. Kuto (SPM) delivered on 6th February 2025 in Mavoko MCELRC Cause No. E006 of 2023 set aside and substituted with a judgment dismissing the Respondent's claim with costs
  3. 3.Costs of the appeal to the Appellant

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 44(4)
  • Employment ActSection 45(2)
  • Employment Act 2007Section 51
  • Constitution of KenyaArticle 41(2)(c)

Cases cited (8)

  • Joseph Njoroge Kiama vs. Summer Ltd
    (2014) eKLR
  • Richard Kiplimo Koech versus Yuko Supermarket Limited
    (2015) eKLR
  • Leonard Kipkorir Mutai vs. Lichi Security Systems Limited
    (2020) eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Ngagaya v Securitas Kenya Limited
    [2025] KEELRC 1714 (KLR)
  • Simon Mbithi Mbane Vs Inter Security Services Limited
    (2018) eKLR
  • Muani v Epco Builders Limited
    [2025] KEELRC 476 (KLR)
  • New World Stainless Steel Limited v Cosmas Mbaulu Munyasya
    (2021) eKLR
On appeal from
Magistrates' Court (Mavoko), Employment and Labour Relations Cause
Mavoko MCELRC Cause No. E006 of 2023
Jurisdiction invoked
First appellate jurisdiction over the subordinate court in employment and labour relations matters (Memorandum of Appeal against the judgment of the trial magistrate)

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, "Mas Intimates Kenya (EPZ) Limited v Ochieng (Employment and Labour Relations Appeal E012 of 2025) [2025] KEELRC 3708 (KLR)", Case Analysis (2025). Appeal against Mavoko MCELRC Cause No. E006 of 2023 (appeal number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3708/eng@2025-12-17

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