Yegon William Kemboi v Cherangani Hills Limited
The bottom line
#Kenya's Employment Court ruled that an employer claiming an employee deserted duty must prove it tried to trace them and follow fair procedure before dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant was terminated or absconded duty
On a balance of probabilities the Appellant established he was prevented from continuing his duties and his employment was brought to an end by the Respondent; the trial court erred in finding no termination
The Respondent alleged desertion but produced no evidence of efforts to trace the Appellant or require him to resume duty. The notice to show cause dated 21st November 2022 was not proved to have been served, and the law requires such notice to be in writing. Absence of a written termination letter is not conclusive proof that no termination occurred.
Whether the termination was substantively and procedurally fair
The termination was both substantively and procedurally unfair
The Respondent failed to establish a valid and fair reason under sections 43 and 45: no client was called to substantiate fraud allegations and losses could not be proved. Procedurally, service of the notice to show cause was not demonstrated, no disciplinary hearing was afforded, and the disciplinary process was never concluded or its outcome communicated, contrary to section 41.
Whether RW1's evidence was properly admitted without a board resolution
The Trial Court did not err; a witness's competence to testify does not depend on a board resolution, and no objection notice was raised under rule 33
The authorities requiring company resolutions concern institution of proceedings, not testimony. RW1 testified on matters within his personal knowledge and the Respondent was represented by counsel. Further, rule 33 of the ELRC Procedure Rules required objections to pleadings to be raised by notice, which the Appellant never did at trial.
Entitlement to reliefs
Declaration of unfair and unlawful termination granted; one month's notice pay (Kshs. 40,000) and three months' compensation (Kshs. 120,000) awarded; service pay and leave dues declined
Statutory notice under section 35 applied absent proof of a contractual six-month notice period; the salary of Kshs. 40,000 was adopted because the employer, as custodian of wage records under sections 10 and 74, produced no contrary records. Compensation was fixed at three months considering nine years of service under section 49(4). NSSF membership barred service pay; the leave claim was unparticularised.
Legal principles established
#- Desertion is more than mere absence; an employer alleging desertion must show reasonable steps to trace the employee, require resumption of duty, or notify of contemplated disciplinary action
- Under section 47(5) of the Employment Act the employee bears the initial burden of establishing unfair termination, while the employer bears the burden of justifying the termination
- Absence from work is not a ground for dismissal unless it is without leave or other lawful cause (section 44(4)(a))
- No board resolution is required for a company officer to testify as a witness; resolution requirements relate to instituting proceedings, not to witness competence
- An employer need not prove misconduct to the criminal standard but must show it genuinely believed on reasonable grounds that the employee committed the misconduct
- A first appellate court must re-evaluate and re-analyse the evidence and reach its own conclusions, making allowance for not having seen or heard the witnesses
Court orders
#- 1.The appeal is hereby allowed
- 2.The judgment of the trial court delivered on 2nd October 2025 in Kitale CMELRC No. E007 of 2024 is hereby set aside
- 3.A declaration is issued that the termination of the Appellant's employment was unfair and unlawful
- 4.The Appellant is awarded one (1) month's salary in lieu of notice being Kshs. 40,000
- 5.The Appellant is awarded compensation for unfair termination equivalent to three (3) months' salary being Kshs. 120,000
- 6.The claims for service pay and unpaid leave are dismissed
- 7.The total award shall attract interest at court rates from the date of judgment in the trial court until payment in full
- 8.The Appellant shall have the costs of the suit before the trial court and the costs of this appeal
- On appeal from
- Kitale Magistrate's Court (CMELRC)
- Kitale CMELRC No. E007 of 2024
- Jurisdiction invoked
- First appellate jurisdiction of the ELRC over the trial magistrate's court (Employment Act / ELRC establishment); appeal by Memorandum of Appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Yegon William Kemboi v Cherangani Hills Limited", Case Analysis (2026). ELRC Appeal No. E005 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2695/eng@2026-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.