Royal Garments Industries EPZA Ltd v Vaati

5. It is the Appellant’s case and submission that the Respondent developed a pattern of absenteeism during her employment. She was issued with a rst warning letter dated 14th May, 2019 for unauthorised absence from work between 8th and 13th May, 2019 to which she responded with an apology of even date. A second warning letter was issued on 30th March, 2020 for poor performance. 6. It is the Appellant’s case that between 6th and 20th April, 2020 the Respondent absented herself from work without authorisation and was served with a Notice to Show Cause dated 20th April, 2020. She declined to respond. A disciplinary meeting was convened on 21st April, 2020 which the Respondent also failed to attend and she was thereafter summarily dismissed by a letter dated 22nd April, 2020. The Appellant contends that the Respondent’s terminal dues were paid in full and collected on her behalf by a union ocial. On appeal, the Appellant submits that the Respondent failed to discharge the burden placed on her by Section 47(5) of the Employment Act, 2007 to establish that the termination was unfair, and that the trial court erred in rejecting the Appellant’s evidence concerning the disciplinary process. Reliance is placed on Mackenzie Maritime (E.A.) Limited v Moses Ochola Juma ELRCA No. E073 of 2022 and Ngunda v Ready Consultancy Limited, Civil Appeal No. 128 of 2019, for the proposition that an employee who declines a genuine opportunity to be heard cannot later complain of denial of a fair hearing. 7. On quantum, the Appellant urges that ve months’ compensation is excessive and that the Respondent substantially contributed to her own termination through absenteeism. 8. The Respondent’s case and submission is that on 6th March, 2020 while engaged in her ordinary duties, she was summoned by her supervisor and directed to the Human Resource oce, where she was verbally informed that her services were no longer required. Security was instructed to escort her out of the premises forthwith. When she attempted to return on 7th March, 2020 the gate was locked against her. She testied that no reason was ever given for the termination of her employment. She was not served with any show cause letter, and that to date she has not been paid her terminal dues. The Respondent draws attention to a fundamental chronological inconsistency in the Appellant’s case: the absenteeism the Appellant relies upon as the substantive basis for dismissal ran from 6th to 20th April, 2020 a period commencing thirty-one days after 6th March, 2020 when on the Respondent’s evidence, she had already been verbally dismissed and excluded from the premises. The Respondent submits that the April 2020 show cause and disciplinary process was an afterthought devised to regularise a dismissal already eected without any process. She sought to rely on Mureu v Ressourcethica Kenya Limited [2025] KEELRC 1912 (KLR.) 9. On quantum, the Respondent urges that ve months’ compensation was fair in the circumstances and relies on Nation Media Group Limited v Munene [2025] KECA 114 (KLR). 10. After a considered look and scrutiny of the Memorandum of Appeal, the Record of Appeal, the proceedings and evidence on record and the submissions of the parties the issues for determination therefore become; 11. 1. Whether the trial court erred in nding that the Respondent’s dismissal was unlawful and unfair. 2. Whether the trial court erred in awarding the Respondent ve months’ salary as compensation. 3. Who shall bear the costs of the appeal. The 1st issue for determination is whether the trial court erred in nding that the Respondent’s dismissal was unlawful and unfair. This being a rst appeal, this Court is enjoined to re-evaluate the evidence on the record and arrive at its own independent conclusions on both fact and law, while https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2338/eng@2026-07-29 2

page 2 of 4

bearing in mind that it neither saw nor heard the witnesses testify and will not interfere with the trial court’s ndings merely because it might have arrived at a dierent result on the same evidence. This is the ratio decidendi in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123. 12. For a termination from employment to withstand scrutiny it must satisfy the conjunctive requirements of substantive justication and procedural fairness. The employer bears the burden under Sections 43 and 45 of the Employment Act, 2007 of proving that the reason for the termination was valid and fair, and that fair procedure was observed in eecting it. Where either limb fails, the termination is unfair for the purposes of the Act, regardless of the strength of the other limb as was in Walter Ogal Anuro v Teachers Service Commission [2013] eKLR. 13. The Respondent’s account of her dismissal on 6th March, 2020 was given in evidence and tested in cross-examination. Her testimony that she was called to the Human Resource oce, verbally informed her services were no longer required and escorted from the premises was not displaced by the Appellant’s witness. She further testied that when she returned the following day, the gates were locked against her. This account was not materially challenged and the Appellant’s own witness did not credibly rebut it. 14. The Appellant’s narrative introduces a fundamental chronological diculty that is determinative of this appeal. The alleged absenteeism put forward as the substantive basis for dismissal is said to have run from 6th to 20th April, 2020 a period that commences thirty-one days after 6th March, 2020 when on the Respondent’s evidence, she had already been verbally dismissed and excluded from the premises. The Notice to Show Cause is dated 20th April, 2020. The disciplinary meeting is said to have been held on 21st April, 2020 and the summary dismissal letter is dated 22nd April, 2020. 15. That timeline cannot be reconciled with a lawful termination. If the Respondent had already been dismissed and locked out on 6th March, 2020 her non-attendance at work in April, 2020 was the direct consequence of the Appellant’s own act in excluding her, not an independent dereliction of duty capable of founding a separate or subsequent ground for summary dismissal. The Appellant cannot dismiss an employee, lock her out of the premises, and then retrospectively attribute her nonattendance in the period following that exclusion to absenteeism. 16. The integrity of the Appellant’s procedural narrative faces a further diculty. Under crossexamination, the Appellant’s witness, John Muthui, was pressed to produce evidence that the show cause letter of 20th April, 2020 was in fact served on the Respondent. He was unable to do so. His response, that the Respondent had refused service, was rejected by the trial court, which observed that this explanation sat uneasily with the Appellant’s simultaneous assertion that a union ocial had been available to collect the Respondent’s terminal dues on her behalf. If the union ocial could collect dues, the Appellant’s failure to use that same conduit to serve or witness service of the show cause notice, or to call any union representative to give evidence on this point, remains unexplained. 17. The trial court’s rejection of the Appellant’s evidence on these points was a credibility nding open to it on the evidence adduced before it. This court, not having had the benet of hearing the witnesses, is slow to depart from such ndings. More fundamentally, the chronological inconsistency identied above is not a question of credibility; it is an internal inconsistency within the Appellant’s own case that undermines the substantive basis for dismissal entirely. 18. The Appellant’s reliance on Mackenzie Maritime (E.A.) Limited v Moses Ochola Juma and Ngunda v Ready Consultancy Limited for the proposition that an employee who declines a hearing cannot complain of procedural unfairness does not assist in the circumstances of this case. These authorities presuppose that a genuine disciplinary process was underway when the employee declined to participate. Here, the prior question, whether any genuine disciplinary process was initiated at all as https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2338/eng@2026-07-29 3

page 3 of 4

opposed to a paper exercise erected after the fact, is itself answered against the Appellant. Disciplinary proceedings purportedly conducted in respect of an employee who had already been dismissed, in relation to absence from premises from which she had already been excluded, carry little weight. This is so observed in the authority of Mureu v Ressourcethica Kenya Limited [2025] KEELRC 1912 (KLR). The 1st issue is answered against the Appellant. The trial court’s nding of unlawful and unfair termination is armed. 19. The 2nd issue for determination is whether the trial court erred in awarding the Respondent ve months’ salary as compensation. Section 49(1)(c) of the Employment Act, 2007 empowers the court to award compensation of up to twelve months’ gross salary in cases of unfair termination. Section 49(4) sets out the matters to which regard must be had in xing any such award, including the circumstances of the termination, the extent of the employee’s contribution to it, her length of service, and the manner in which the dismissal was carried out. This court has found that the Respondent was dismissed summarily, without any prior disciplinary process, having served the Appellant for approximately four years. The manner of dismissal, a verbal notication in the Human Resource oce followed by an immediate escort from the premises and the following day a locked gate, was abrupt and oered the Respondent no notice, no explanation and no opportunity to respond. 20. The contribution, if any, of the Respondent’s own conduct to her termination has not been established for the reasons set out above. The alleged absenteeism on which the Appellant relies cannot stand as a contributing factor once it is found to have occurred, if at all, after the dismissal had already been eected. An award of ve months’ gross salary falls squarely within the range available to the trial court in the exercise of its discretion under Section 49. The award is proportionate to the circumstances, is not punitive towards the Appellant, and makes reasonable good the Respondent’s loss. It is a case of justice well applied. It does not warrant interference. The 2nd issue is answered against the Appellant. 21. On the issue of costs, it is an accepted principle of civil law that cause follow the event. The Appellant having failed to establish their case on both grounds, costs would follow the Respondent. 22. I am therefore inclined to dismiss the appeal with costs to the Respondent. DELIVERED, DATED AND SIGNED THIS 29TH DAY OF JULY 2026. D. K. NJAGI MARETE JUDGE Appearances: Mr. Kipkorir instructed by Naikuni, Ngaah & Miencha Advocates for the Appellant. Mr. Wanyangu holding brief for Namada instructed by Namada & Company Advocates for the Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2338/eng@2026-07-29 4

page 4 of 4