Irungu v Murban Movers Ltd

2. f. The learned Magistrate erred in law and in fact by failing to award the Claimant special damages. g. The learned Magistrate erred in law and in fact by failing to analyze the evidence on record and arrived at a wrong conclusion thereby dismissing the suit by the Appellant herein. h. The learned Magistrate erred in law by failing to properly apply the law to the facts thereby resulting in the dismissal of this suit. The Appellant prays for orders that: a. The judgment delivered by Hon. Christine A. Ogweno in MCELRC E665 of 2020 on 22nd August 2024 be set aside in totality. b. The Claimant’s memorandum of claim in MCELRC E665 of 2020 as contained in the record of appeal be allowed as prayed. c. Costs of the appeal be awarded to the Appellant. d. Any further relief this Honourable Court may deem t and just to award under the circumstances. 3. The Appellant’s case is that he was employed by the Respondent as a heavy commercial driver from February, 2019 to March, 2020 earning a monthly salary of Kshs. 33,550.00. His duties involved longdistance transport of fuel products to regional destinations including Rwanda, Tanzania, and Uganda. 4. The Appellant’s case, as presented through his memorandum of claim and testimony at the lower court, is as follows: Throughout his employment, the Respondent subjected him to unilateral and unjustied salary deductions amounting to Kshs. 72,666.00 across February, July, August, September, and November, 2019 and January and February, 2020. The Respondent attributed these deductions to fuel shortages incurred during his deliveries. The Appellant denied responsibility, stating that fuel tankers were sealed at loading and could only be opened at the delivery point by the Uganda Revenue Authority. He therefore could not have been responsible for any shortfall. 5. In February, 2020 his salary for that month was paid late on 18th March, 2020. A show cause letter had already been issued on 11th March, 2020. The Appellant’s case is that owing to the accumulated deductions and the late payment of his February, 2020 salary, he was unable to meet his basic nancial obligations including bus fare to report to work. He communicated his predicament through WhatsApp messages. Despite this, the Respondent proceeded to issue a summary dismissal letter on 26th March, 2020 on grounds of absconding duty. 6. The Appellant submits that the lower court erred in nding the termination substantively fair in circumstances where the Respondent had created the very conditions that made it impossible for the Appellant to report to work. He further contends that the burden of justifying salary deductions rested on the employer, not the employee and that the lower court misdirected itself in placing that burden on the Appellant. On quantum, the Appellant seeks revision of the compensation award from one month’s salary to the maximum of twelve months, being Kshs. 402,600.00 and the allowance of the salary deductions refund in full. 7. The Respondent opposes the appeal and urges this court to uphold the judgment of the lower court in its entirety. The Respondent Murban Movers Limited is a company engaged in long-distance fuel transport. The Appellant was employed as a heavy commercial driver whose duties required him to transport oil products to regional destinations including Rwanda, Tanzania, and Uganda. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1993/eng@2026-07-15 2

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8. The Respondent avers that the Appellant’s employment was terminated on 26th March, 2020 on grounds of absconding duty, having failed to report to work from 11th March, 2020 without leave or any communication to his employer. Under Section 44(4)(a) of the Employment Act, 2007, absenteeism without leave or lawful cause constitutes gross misconduct warranting summary dismissal. The Appellant admitted in cross-examination before the trial court that he failed to report to work from 11th March, 2020 and did not seek permission or inform anyone in authority of his absence. 9. On procedural fairness, the Respondent acknowledges the lower court’s nding of procedural irregularity but contends that this lapse was rendered impractical by the Appellant’s own conduct. A Notice to Show Cause was prepared on 16th March, 2020. Multiple eorts were made by phone and through the HR to contact the Appellant, but all proved futile. An employee who absconds duty and renders himself unreachable cannot subsequently rely on procedural fairness as a shield, as armed in Jacob Mutua v Keen Kleeners Limited [2019] eKLR. 10. On the salary deductions, the Respondent submits that all deductions were justied and properly documented. The fuel shortages were real and the recoveries were explained and consented to by the Appellant, who signed the relevant delivery reports. The lower court correctly found that the Appellant failed to lead evidence sucient to displace the Respondent’s justication for the deductions and that nding should not be disturbed on appeal. 11. On the issue of quantum, the Respondent submits that the award of one month’s compensation under Section 49(1)(c) is proportionate and appropriate, having regard to the Appellant’s short tenure of thirteen months, his contribution to his own termination and the nding that the termination was substantively fair. The Respondent relies on Kenya Ports Authority v Kuston (Kenya) Limited [2009] 2 EA 212 for the proposition that the appellate court should not disturb discretionary awards absent of clear evidence of misdirection or improper exercise. 12. The issues for determination are: 1. Whether the trial court erred in nding that the Respondent had a valid and justiable reason to terminate the Appellant’s employment. 2. Whether the trial court correctly applied the law in nding that the termination was procedurally unfair but substantively fair. 3. Whether the remedies awarded were reasonable and in accordance with the law, including the claim for refund of salary deductions. 13. The role and place of this court as a rst appellate court is well settled in the authority of Peters v Sunday Post Ltd [1958] EA 424 which enunciated that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution and if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate to so decide. This court is further reminded, as stated in Gitobu Imanyara & 2 others v Attorney General [2016] eKLR that in an appeal by way of retrial the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect. 14. The 1st issue for determination is whether the trial court erred in nding that the Respondent had a valid and justiable reason to terminate the Appellant’s employment. The applicable statutory framework is Sections 41, 43, 44, and 45 of the Employment Act, 2007. Here, Section 43(1) places on https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1993/eng@2026-07-15 3

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the employer the burden of proving that there was a valid reason for termination. Section 44(4)(a) specically provides that an employee who, without leave or lawful cause, absents himself from work is guilty of gross misconduct justifying summary dismissal. 15. The Appellant admitted in cross-examination before the trial court that he did not report to work from 11th March, 2020 and that he did not communicate his absence to anyone in authority at the Respondent. The attendance register corroborated his absence from 11th to 16th March, 2020. The Managing Director of the Respondent testied that several eorts were made to contact the Appellant by phone and through HR, but all attempts went unanswered. These facts were not materially disputed. 16. The Appellant’s explanation is that his absence was driven by nancial hardship caused by the Respondent’s own salary deductions and the delayed payment of his February, 2020 salary. This court notes with concern that the salary was paid on 18th March, 2020 — well after the show cause letter of 11th March, 2020 had been issued. However, the critical question is whether the Appellant communicated this nancial position to the Respondent before simply ceasing to report. The lower court found, and this court agrees, that he did not. WhatsApp messages said to have been sent were not produced in evidence in any manner capable of challenging the Respondent’s records and testimony that all attempts to reach the Appellant went unanswered. In the absence of communication, the Respondent was reasonably justied in concluding that the Claimant had absconded work and the reason for termination was therefore valid. The 1st issue is determined against the Appellant. 17. The 2nd issue for determination whether the trial court correctly applied the law in nding that the termination was procedurally unfair but substantively fair. The trial court’s nding is armed. Section 41 of the Employment Act, 2007 requires that before termination on grounds of misconduct, the employer shall explain the reasons to the employee and aord him an opportunity to respond. The Respondent prepared a show cause letter dated 16th March, 2020 but the trial court found that there was no proof it was received by the Appellant. The Respondent’s own witness conceded this in crossexamination. This failure renders the process procedurally defective. 18. That said, the procedural lapse must be viewed in context. As the court held in the authority of Jacob Mutua v Keen Kleeners Limited [2019] eKLR, an employee who absconds duty frustrates the employer’s ability to hold a disciplinary hearing and cannot later rely on procedural fairness as a shield. The Respondent made documented eorts to contact the Appellant. The Appellant, by placing himself beyond reach, substantially contributed to the procedural gap. The lower court’s balanced nding is therefore correct: the termination was procedurally unfair but substantively fair. The 2nd issue is determined accordingly. 19. The 3rd issue for determination is whether the remedies awarded were reasonable and in accordance with the law, including the claim for refund of salary deductions. This court analyses these as follows: On compensation, Section 49 of the Employment Act, 2007 empowers this court to award up to twelve months’ salary, taking into account the employee’s conduct, the employer’s conduct, length of service and prospects of securing comparable employment. The Appellant served for approximately thirteen months. He contributed materially to his own termination by failing to communicate with his employer. The termination was substantively fair. The lower court awarded one month’s salary. This is consistent with the statutory framework and with the principles set out in John Ngoko Isoe v Nyasiongo Tea Factory Co. Ltd [2017] eKLR and Amos Kitavi Kivite v Kenya Revenue Authority [2020] eKLR which hold that where termination is found substantively lawful, additional compensation should not be granted unless specic injustice or statutory breach is shown. The one month award is therefore upheld. There is no basis for enhancement to twelve months, or at all. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1993/eng@2026-07-15 4

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20. As to salary deductions, a total of Kshs. 72,666.00 was deducted from the Appellant’s salary across multiple months, principally on account of fuel shortages incurred during his deliveries. The Appellant contended that the fuel tankers were sealed and that he bore no responsibility. The Respondent produced salary statements, delivery records, and Finance Oce documentation explaining each deduction. 21. Section 19 of the Employment Act, 2007 prohibits unauthorised deductions and places on the employer the obligation to justify them. This court notes that the Respondent’s own witness conceded in cross-examination that there was no denitive explanation for why the fuel shortages arose and that a degree of natural volume variation on account of temperature dierentials was an acknowledged and allowable loss. That concession is signicant: an employer who relies on a fuel shortage to justify a salary deduction bears the burden of demonstrating that the shortage is attributable to the employee’s fault or negligence and is not within the range of acknowledged natural variation. The Respondent’s own witness’ inability to attribute the shortages denitively to the Appellant’s conduct undermines the justication for the deductions. 22. However, the evidentiary diculty identied by the trial court remains. The Appellant was required to lead sucient counter-evidence to challenge the Respondent’s documentary record. The Respondent produced salary statements, delivery reports and Finance Oce correspondence for each deduction. By the letter of 2nd March, 2020 the Appellant was challenged to provide evidence why the deductions should not be made. He did not respond. The Appellant’s bare denial, without production of his own delivery records, tanker manifests, or Uganda Revenue Authority documentation to support his account of the sealing arrangements, is insucient to displace the prima facie documentary justication provided by the Respondent. The claim for salary deduction refund accordingly fails. Had the Appellant produced the documentary evidence reasonably within his reach, the outcome on this issue might well have been dierent, given the signicant concession by the Respondent’s witness. An there we go with a determination for the 3rd issue. 23. Having considered the Record of Appeal, the submissions of both parties, the evidence adduced at the trial court and the applicable law, the feasible way out is a dismissal of the appeal. 24. I am therefore inclined to dismiss the appeal and order relief as follows; i. The judgment delivered on 22nd August, 2024 in MCELRC E665 of 2020 is armed in its entirety. ii. A declaration be and is hereby issued that the termination of the Appellant’s employment by the Respondent was substantively fair but procedurally unfair, and the Respondent is liable to pay the Appellant’s the terminal dues as follows. One (1) month’s salary in lieu of notice ………………………………Kshs. 33,550.00 Seven (7) days untaken leave at Kshs. 1,290.38/day…………………...Kshs. 9,032.69 Salary arrears for ten (10) days worked in March, 2020………………Kshs. 12,903.85 One (1) months compensation for procedurally unfair termination …..Kshs. 33,550.00 Total of award………………………………………………………..Kshs. 89,036.54 iii. The claim for refund of salary deductions in the sum of Kshs. 72,666.00 is dismissed for failure to discharge the evidential burden. iv. Interest on the total award at court rates from the date of ling suit until payment in full. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1993/eng@2026-07-15 5

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v. Each party shall bear its own costs of this appeal having regard to the mixed outcome and the circumstances of this matter. DELIVERED, DATED AND SIGNED THIS 15TH DAY OF JULY 2026. D. K. Njagi Marete JUDGE Appearances: Mr. Wetaba instructed by Wetaba, Were & Associates Advocates for the Appellant. Mr. Wesonga holding brief for Muma & Kanjama Advocates for the Respondent https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1993/eng@2026-07-15 6

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