Krystalline Salt Limited (Gongoni) v Paul Nyandiko Nyakioga

Sections 43 and 45(2)(a) and (b) of the Employment Act require an employer to prove a reason that is both valid and fair. Validity presupposes a fixed and ascertainable proposition capable of being tested. Across the Memorandum of Defence, the show cause letter, the disciplinary minutes and trial testimony, the appellant advanced five mutually irreconcilable formulations, including 'poor performance' conjured at trial and unsupported by any pre-suit document. Permitting such shifting characterisations lets the employer evade its statutory burden; the reason accordingly loses validity and fairness.

The disciplinary documents established at their highest only that the respondent was on duty in the vicinity, guarding a stalled lorry some distance from the excavators. The supervisor who actually witnessed the theft — indispensable to both theories of culpability — was never called at the disciplinary hearing, at trial, or by application to this Court. The trial court rightly drew an adverse inference from that absence. The reason for dismissal therefore failed to meet the proof standard demanded by sections 43 and 45(2).

The respondent's arrest on 18 October 2018 and seven-day remand after plea were unchallenged; DW1 conceded she had no evidence of his attendance and that leaving custody and returning was impossible. The show cause letter simultaneously recorded refusal to acknowledge receipt and a signature dated while he remained detained; the minutes recorded detailed participation yet a signature deferred pending legal advice. The documents bore the hallmarks of an afterthought, corroborated only by the appellant's own employees. No fair hearing was afforded.

The authorities relied on by the appellant concerned dismissals whose validity was upheld; they cannot assist an employer whose summary dismissal rests on no valid reason and unfair process. Since gross misconduct under section 44 is the foundation for dispensing with notice, a failed summary dismissal cannot simultaneously yield the benefit of exemption from notice. The award of one month's salary, Kshs. 16,144/=, was therefore upheld.

Section 49(4) requires regard to length of service, manner of termination, contribution and practicability of reinstatement. The maximum award is reserved for the clearest, most egregious cases. The respondent served some two years and eight months, was not a stranger to the events, and the comparator authorities involved substantial reductions. The malicious prosecution characterisation was neither pleaded nor proved. Six months' gross pay, Kshs. 96,864/=, was substituted for the twelve-month award.

The claim applied a notional daily overtime rate across twenty-six days for thirty-two months without specifying dates, hours, or any contemporaneous record such as a clock-in register or duty roster. Following Nandi v Super Bargains Glass & Hardware, overtime like special damages must be specifically pleaded and strictly proved. The court deprecated the practice of presenting arithmetic formulas as substitutes for evidentiary work and set the award aside entirely.

A payslip is a unilateral internal record of what the employer says it paid, not proof of receipt, particularly where payment is disputed. The payslips bore a print date of 29 November 2021, three years after the events and shortly after suit, marking them as retrospective litigation printouts. The appellant declined to produce bank transfer advices, M-Pesa statements, signed vouchers or cheque records uniquely within its control. The award of Kshs. 11,178/= was upheld.

Three leave application forms for 2016, 2017 and 2018 bore the respondent's employee number, dates and supervisors' signatures and were put to him in cross-examination. His response shifted from denying the forms' existence to asserting a declined application, unaccompanied by any handwriting challenge or impeachment of the signatories. On a balance of probabilities, documentary evidence of this kind displaces a bare, internally inconsistent denial. The trial award was set aside and replaced with the conceded Kshs. 2,650/= encashment.

The appellant challenged the underpayment award only by asserting that the payslips showed a basic salary and house allowance. That assertion did not engage the trial court's comparison of actual wages against the 2018 Minimum Wage Order or demonstrate any computational flaw. With no particulars of error advanced on Ground 4, the appellate court declined to disturb the award of Kshs. 23,975/=.