Norah Kerubo Tagiri v Kenyenya FCS Limited
The bottom line
#Kenya's Employment Court confirmed that an employee who deserts duty can be lawfully dismissed without a hearing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Trial Magistrate erred in finding a valid and fair reason for termination (desertion of duty)
- 2.Whether the Respondent complied with section 41 of the Employment Act on procedural fairness
- 3.Whether the Respondent discharged the statutory burden of proof under sections 43, 45 and 47(5) of the Employment Act
- 4.Whether the claims for 168 months' unpaid salary, notice pay, compensation and service pay were wrongly dismissed
- 5.Whether the costs order of the trial court was erroneous
Key legal issues
#Procedural fairness under section 41 where employee deserts
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.
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.
Claim for 168 months' unpaid salary
The claim was dismissed as an unsubstantiated allegation; the Trial Magistrate did not err in rejecting it.
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.
Duty of a first appellate court
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.
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.
Legal principles established
#- 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
#- 1.Appeal dismissed with costs
- 2.Costs on appeal to be borne by the Appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#Setting aside the Trial Court's judgment
Appeal lacked merit; termination for desertion was valid and fair
Claim for 168 months' unpaid salary
Mere allegation ('puffing'); inconceivable she worked 31 years paid for only 17
Compensation, notice pay and service pay
Termination found lawful; claims fell with the main claim
Costs of the appeal
Appellant persisted in a hopeless appeal
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
#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.
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.
The duty of a first appellate court is to reconsider and re-evaluate the evidence on record and draw its own conclusions
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.
Issues in the judgment
#Appellant's name printed vertically/fragmented in the cause title; reconstructed as 'Norah Kerubo Tagiri' from the body of the judgment.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.