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ELRCDismissedAppeal No. E006 of 2026

Norah Kerubo Tagiri v Kenyenya FCS Limited

Employment & Labour Relations Court of Kenya at Kisii
29 September 2026
1,858 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that an employee who deserts duty can be lawfully dismissed without a hearing.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Kisii against the judgment of Hon. P. K. Biwott in Ogembo MELRC No. E004 of 2023, which dismissed Norah Kerubo Tagiri's claims against Kenyenya FCS Limited arising from her termination after approximately 31 years of service. The Appellant, canvassing the appeal by written submissions, raised eight grounds: failure to analyse her evidence, absence of a disciplinary hearing, breach of sections 41, 43 and 45 of the Employment Act, misdirection on desertion, wrongful dismissal of her claim for 168 months' unpaid salary, and entitlement to compensation, notice pay and service pay. She relied on authorities on burden of proof, desertion, procedural fairness and the employer's duty to produce records. The Respondent maintained that the termination was lawful, that desertion after a warning letter and an acknowledged offer to resume duty was a valid ground for summary dismissal, and that the Appellant failed to discharge her burden under section 47(5). Nzioki wa Makau, J, restating the duty of a first appellate court per Selle v Associated Motor Boat Co., held that where an employee absconds and makes herself unavailable for the disciplinary process, the employer cannot be faulted for not conducting a section 41 hearing; persistent desertion is itself sufficient to found a dismissal. The claim for 168 months' unpaid salary was characterised as 'puffing' - implausible and uncorroborated. The appeal was dismissed with costs to the Respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Trial Magistrate erred in finding a valid and fair reason for termination (desertion of duty)
  2. 2.Whether the Respondent complied with section 41 of the Employment Act on procedural fairness
  3. 3.Whether the Respondent discharged the statutory burden of proof under sections 43, 45 and 47(5) of the Employment Act
  4. 4.Whether the claims for 168 months' unpaid salary, notice pay, compensation and service pay were wrongly dismissed
  5. 5.Whether the costs order of the trial court was erroneous

Key legal issues

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01

Procedural fairness under section 41 where employee deserts

Holding

The Respondent was relieved of the duty to conduct a hearing because the Appellant's persistent desertion made a hearing infeasible and constituted a valid ground for summary dismissal.

Reasoning

The court reasoned that a hearing requires the employee to be at hand to face charges. Having been warned and offered an opportunity to resume duty, which she acknowledged, her refusal to return meant the employer could not be faulted for absence of a hearing; desertion itself sufficed for dismissal.

p. 10
02

Claim for 168 months' unpaid salary

Holding

The claim was dismissed as an unsubstantiated allegation; the Trial Magistrate did not err in rejecting it.

Reasoning

The court found it implausible that an employee worked 31 years but was paid for only 17, questioned the absence of any complaint record, and characterised the claim as 'puffing' - a mere allegation unsupported by evidence, which fell with the main claim.

p. 11
03

Duty of a first appellate court

Holding

The court applied the settled duty to re-evaluate evidence and draw its own conclusions while according deference to the trial court's advantage of seeing witnesses.

Reasoning

Citing Selle v Associated Motor Boat Co. and Abdul Hammed Saif v Ali Mohamed Sholan, the court restated that a first appellate court reconsiders the evidence and draws its own conclusions, bearing in mind it did not hear the witnesses testify.

p. 9

Legal principles established

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  • Where an employee absconds and makes themselves unavailable, the employer cannot be faulted for not conducting a section 41 hearing; persistent desertion is itself sufficient to found a summary dismissal.
  • A first appellate court must reconsider and re-evaluate the evidence and draw its own conclusions, mindful it did not see or hear the witnesses.

Court orders

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  1. 1.Appeal dismissed with costs
  2. 2.Costs on appeal to be borne by the Appellant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Ogembo MCELRC (magistrates' court)
Ogembo MCELRC No. E004 of 2023
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's judgment and decree (Employment and Labour Relations Court)

Relief refused

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Setting aside the Trial Court's judgment

Appeal lacked merit; termination for desertion was valid and fair

p. 11

Claim for 168 months' unpaid salary

Mere allegation ('puffing'); inconceivable she worked 31 years paid for only 17

p. 11

Compensation, notice pay and service pay

Termination found lawful; claims fell with the main claim

p. 11

Costs of the appeal

Appellant persisted in a hopeless appeal

p. 11

Costs

Appeal dismissed with costs; costs on appeal borne by the Appellant. (Trial court had ordered each party to bear their own costs, which the court found 'generous'.)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

If an employee runs away from the employer and declines to return, the desertion is itself ipso facto sufficient to found a dismissal.
p. 10Desertion and section 41 hearing
Where an employee absconds from work and makes themselves unavailable for the disciplinary process, the employer cannot be faulted for not having conducted a hearing.
p. 10Procedural fairness
The duty of a first appellate court is to reconsider and re-evaluate the evidence on record and draw its own conclusions
p. 9First appellate duty
The Appellant has persisted on an exercise that would only result in one outcome – dismissal of the appeal. Costs on appeal will therefore be borne by the Appellant. Appeal dismissed with costs.
p. 11Disposition

Issues in the judgment

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minor

Appellant's name printed vertically/fragmented in the cause title; reconstructed as 'Norah Kerubo Tagiri' from the body of the judgment.

minor

Appeal number dated 2026 with trial judgment of 18th March 2026 and memorandum dated 30th March 2026 - dates appear internally consistent but the appeal number year (E006 OF 2026) post-dates the 2023 trial filing.

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, "Norah Kerubo Tagiri v Kenyenya FCS Limited", Case Analysis (2026). Appeal No. E006 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2632/eng@2026-09-29

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