Malumbu Malio v AJ Ceramics Limited
The bottom line
#A Kenyan court confirmed that an employee fired for staying away from work without permission loses claims for notice pay and compensation if the employer followed fair procedure.
What this practically means
#Executive summary
#Key legal issues
#Whether there was a valid reason for termination
Yes - absence from the shop floor without leave or lawful cause from 9th to 14th October 2023 was gross misconduct under section 44(4)(a) of the Employment Act and a valid, fair reason related to the employee's conduct
The appellant admitted in his witness statement to being absent without permission, claiming illness and a nephew's burial but producing no hospital documents or receipts. The employer bore the burden under sections 43 and 45, which it discharged through the dismissal letter and disciplinary minutes. The court found no basis to interfere with the trial court's finding.
Whether the termination procedure was fair
Yes - the appellant was given a notice to show cause, invited to a disciplinary hearing, heard and his representations considered, satisfying section 41 of the Employment Act
The disciplinary minutes show the appellant was given an opportunity to explain his absence and was questioned on documentation. The dismissal letter expressly considered his explanations and found them unsatisfactory. The invitation to the hearing informed him of his right to be accompanied by a fellow employee.
Whether the appellant was entitled to notice pay, compensation, breach of contract damages and NHIF dues
No - summary dismissal for gross misconduct disentitles the employee to notice pay; compensation was not due as the termination was lawful and fair; the trial court's decision on breach of contract and NHIF was upheld
Section 44(1) permits summary dismissal without notice. Having been issued a notice to show cause and heard before a valid termination, the appellant could not claim salary in lieu of notice. The compensation claim failed because the termination was lawful and fair.
Legal principles established
#- A first appellate court must re-evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses
- Where an employee admits the misconduct (absence without leave), issues of proof of the absence become moot
- An employee summarily dismissed for gross misconduct after being issued a notice to show cause and heard is not entitled to payment in lieu of notice
Court orders
#- 1.The appeal is dismissed for lack of merit
- 2.The Judgment and Decree of the Hon. M.A. Nanzushi (SPM) delivered on 9th June 2025 in Mavoko CMELRC No. E138 of 2024 is upheld
- 3.No order as to costs in the appeal
- 4.The file is marked as closed
- On appeal from
- Magistrates' Court (Mavoko)
- Mavoko CMELRC No. E138 of 2024
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court's judgment in an employment claim (Employment and Labour Relations Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Malumbu Malio v AJ Ceramics Limited", Case Analysis (2026). ELRC Appeal No. E036 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2472/eng@2026-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.