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ELRCPartially AllowedELRC Appeal No. E028 of 2025· [2026] KEELRC 2490 (KLR)

Julius Garama Kitsao v Mnarani Club

Employment and Labour Relations Court
21 September 2026
5,677 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that firing a worker for 'absconding' was unfair when the employer already knew he was injured, awarding him over Kshs. 521,000.

What this practically means

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Executive summary

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This is a first appeal against the judgment of the Chief Magistrate's Court at Kilifi (Hon. James N. Mwaniki, CM) dismissing in its entirety the claim of Julius Garama Kitsao, a nineteen-year employee of Mnarani Club, for unfair termination. The Appellant was summarily dismissed in January 2023 after a road traffic accident on 23rd December 2022 left him off duty for two weeks; he notified his employer of the accident on the day it occurred but did not physically deliver his medical off-duty note until 28th December 2022, and did not answer calls or messages between 26th and 28th December. The trial court upheld the dismissal and rejected claims for notice pay, gratuity and leave pay. The ELRC, per Ocharo Kebira J, allowed the appeal in part. It held that absconding requires concealment or an intention to abandon employment, which was absent since the employer knew the cause of the absence from day one; that clause 14 of the CBA and section 30 of the Employment Act were complied with; that the apology for late delivery of the medical note and the plea of guilty before the internal tribunal were not blanket admissions; and that the established infraction - failing to answer calls - warranted only ordinary termination on notice, consistent with clause 8(a)(iv) of the CBA for employees of ten or more years' service. Procedural fairness was upheld. The summary dismissal was declared substantively unfair and commuted to lawful termination. The Appellant was awarded three months' notice pay (Kshs. 125,265/-) and CBA gratuity (Kshs. 396,667/-), totalling Kshs. 521,932/-. Claims for leave pay and section 49(1)(c) compensation were declined, and each party was ordered to bear its own costs at both levels.

Key legal issues

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01

Substantive fairness - whether the Appellant absconded duty

Holding

The charge of absconding was not established; the Appellant's whereabouts and the cause of his absence (a road traffic accident and injury) were known to the employer from the first day, so section 44(4)(a) was inapplicable

Reasoning

The court defined absconding as requiring concealment or an intention to abandon employment. The Appellant reported the accident to the Resort Manager on the day it occurred, sought and received assistance, later returned and tendered the medical note and a written explanation. There was lawful cause for the absence known to the employer, negating absconding.

p. 17
02

Compliance with clause 14 of the CBA and section 30 of the Employment Act

Holding

The Appellant notified the employer of illness on the same day, well within the 48-hour window, so neither clause 14 nor section 30 was breached

Reasoning

Clause 14 required notification of illness within 48 hours; the Appellant informed the Resort Manager in person on the day of the accident. Section 30 requires notification as soon as reasonably practicable; same-day personal notification could hardly be improved upon. Neither provision could sustain a finding of absconding.

p. 17
03

Gravity of the failure to answer calls and messages

Holding

The failure to respond to calls and SMS over several days was misconduct warranting ordinary termination on notice, not summary dismissal

Reasoning

Summary dismissal is reserved for gross misconduct destructive of trust and confidence. A few days' silence while recuperating from a known injury, with the cause of absence already disclosed, was at most a failure of communication. The CBA's clause 8(a)(iv) itself distinguished employees of ten or more years' service, who may only be terminated, not summarily dismissed.

p. 22
04

Procedural fairness under section 41 of the Employment Act

Holding

The disciplinary process met section 41 requirements; the trial court's finding on procedural fairness was upheld

Reasoning

The Appellant received a written show cause letter, submitted a written explanation, was heard at a disciplinary hearing with two representatives and an interpreter, was informed of his rights and of the verdict in writing with a right of appeal. The process satisfied the Nyandiko ingredients of a fair hearing.

p. 26
05

Gratuity under clause 27(b) of the CBA versus statutory service pay

Holding

The trial court erred in barring gratuity under sections 35 and 36; contractual gratuity under the CBA is distinct from statutory service pay and was awarded at Kshs. 396,667/-

Reasoning

Section 35 service pay is excused where the employee is a member of a registered scheme such as NSSF, but CBA gratuity is a contractual entitlement preserved by section 26(2) of the Employment Act where more favourable than the statutory minimum. NSSF membership does not extinguish it.

p. 28

Legal principles established

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  • Absconding imports concealment or desertion, distinct from absence whose cause is known to the employer from the outset
  • An apology for late delivery of a document is not a blanket admission of guilt on all disciplinary charges; the employer bears the burden of establishing each element independently
  • An employee's plea before an internal disciplinary tribunal cannot bind a court determining whether the admitted facts meet the threshold of the offence charged
  • NSSF membership excuses statutory service pay under section 35 but does not extinguish a contractual gratuity entitlement negotiated under a CBA
  • A court cannot grant relief beyond that which is pleaded and prayed for
  • Rule 59 documents-only disposal is ill-suited to disputes turning on heavily contested findings of fact

Court orders

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  1. 1.The appeal is allowed
  2. 2.The judgment of the trial court dated 28th October 2025 dismissing the Appellant's claim in its entirety is set aside
  3. 3.It is declared that the summary dismissal of the Appellant was substantively unfair, and the same is commuted to a lawful termination of employment
  4. 4.The Respondent shall pay the Appellant three months' salary in lieu of notice in the sum of Kshs. 125,265/-
  5. 5.The Respondent shall pay the Appellant gratuity in the sum of Kshs. 396,667/-, making a total of Kshs. 521,932/-
  6. 6.The Appellant's claims for leave pay and for compensation under section 49(1)(c) of the Employment Act are declined and dismissed
  7. 7.Each party shall bear its own costs, both of this appeal and of the proceedings before the trial court

Authorities

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Legislation

  • Employment Act, 2007section 30
  • Employment Act, 2007section 35
  • Employment Act, 2007section 36
  • Employment Act, 2007section 41
  • Employment Act, 2007section 44(4)(a)
  • Employment Act, 2007section 49(1)(c)
  • Employment Act, 2007section 49(4)
  • Employment Act, 2007section 26(2)
  • Employment and Labour Relations Court (Procedure) Rules, 2024Rule 59
  • National Social Security Fund Actregistered scheme provisions

Cases cited (2)

  • Rose Nafula Wanyama v Nusra Nasambu Chibanga & Another
    [2020] eKLR

    Duty of a first appellate court to re-evaluate the evidence and arrive at its own independent conclusions

  • Nyandiko v Kenya Commercial Bank Ltd
    [2017] KECA 798 (KLR)

    Ingredients of a fair hearing in disciplinary termination under section 41 of the Employment Act

On appeal from
Chief Magistrate's Court at Kilifi
Kilifi CMC ELRC Cause No. E5B of 2024 (formerly Principal Magistrate's Court, Kaloleni, Employment Cause No. E034 of 2023)
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court ELRC cause (Employment and Labour Relations Court (Procedure) Rules, 2024 framework)

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, "Julius Garama Kitsao v Mnarani Club", Case Analysis (2026). ELRC Appeal No. E028 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2490/eng@2026-09-21

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