Malumbu Malio v AJ Ceramics Limited

b) The Judgement of the trial magistrate be set aside. c) That the costs of the lower court and the appeal be awarded to the Appellant. d) Interest from the date of judgment of the lower court on 9th June 2025. e) Any other relief the Court may deem fit and just to grant. GROUNDS OF THE APPEAL 2. The Honourable Magistrate erred in law and in fact in failing to find that the termination, dismissal of the appellant by the respondent was unlawful, unfair, untimely, harsh and in complete disregard to the rules of natural justice and the Employment Act. 3. The Honourable Magistrate erred in law and in fact in failing to consider whether there was any valid reason for the termination of employment. 4. The Honourable Magistrate erred in law and in fact in failing to consider that the respondent did not consider any representations that the appellant may have given in his defence despite there being no valid reasons for termination. 5. The Honourable Magistrate erred in law and in fact in failing to consider that the respondent failed to, in the alternative of giving termination notice, pay one month’s salary in lieu of notice to the appellant. J U D G M E N T I N M K O S E L R C A N O . E 0 3 6 O F 2 0 2 5 P a g e 2 | 17

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6. The Honourable Magistrate erred in law and in fact in failing to consider that the appellant did not meet the threshold of the burden of proof on dismissal despite evidence. 7. The Honourable Magistrate erred in law and in fact by failing to consider that the appellant is entitled to terminal benefits and dues owed to him and any assertions by the respondent that the claimant was not entitled to any benefits are those of disputatious sophist. BACKGROUND TO THE APPEAL 8. The Claimant/Appellant filed a claim against the Respondent vide a memorandum of claim dated 20th May 2024 seeking the following orders: - a) A declaration that the termination was unlawful, unfair, untimely and harsh and an order that the Claimant be paid his dues and benefits of Kshs. 618,167/- as aforesaid. b) A declaration that the Claimant is entitled to a Certificate of Service. c) Costs of the claim plus interest therein. (pages 16-19 of Appellant’s ROA dated 30th July 2025) 14. Alongside the claim, the Claimant/Appellant filed his list of documents dated 20th May 2024 with the bundle attached, list of witnesses of even date, and undated witness statement (pages 21-28 of ROA). J U D G M E N T I N M K O S E L R C A N O . E 0 3 6 O F 2 0 2 5 P a g e 3 | 17

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15. The claim was opposed by the Respondent who entered appearance and filed a statement of response dated 29th November 2024 (pages 29-32 of ROA). They also filed a witness statement of YVONNE A. OBONYO dated 1 st April 2025; and list and bundle of documents of even date (pages 33-47 of ROA). 16. By consent, both parties’ cases proceeded by way of documents (pages 8-9 of ROA). 17. The court delivered its Judgment on 9th June 2025 dismissing the Claimant/Appellant’s suit, with costs (judgment at pages 10-14 of ROA). DETERMINATION 18. The appeal was canvassed through written submissions. Only the appellant filed written submissions vide hard copy. The court on perusal of the CTS did not find any submissions. Issues for determination 19. The court on perusal of the grounds of the appeal, discerned the issues for determination to be- J U D G M E N T I N M K O S E L R C A N O . E 0 3 6 O F 2 0 2 5 P a g e 4 | 17

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a. Whether the trial court erred in fact and law in finding valid reason of termination b. Whether the trial court erred in fact and law in finding the termination was procedurally fair c. Whether the trial court erred in fact and law in failing to allow relief sought. 20. This being a first appellate court, it was held in Selle v Associated Motor Boat Co. [1968] EA 123 that:“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that 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 allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.” Whether the trial court erred in fact and law in finding a valid reason of termination J U D G M E N T I N M K O S E L R C A N O . E 0 3 6 O F 2 0 2 5 P a g e 5 | 17

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21. The grounds under the issue were as followsa. The Honourable Magistrate erred in law and in fact in failing to find that the termination, dismissal of the appellant by the respondent was unlawful, unfair, untimely, harsh and in complete disregard to the rules of natural justice and the Employment Act. b. The Honourable Magistrate erred in law and in fact in failing to consider whether there was any valid reason for the termination of employment. c. The Honourable Magistrate erred in law and in fact in failing to consider that the appellant did not meet the threshold of the burden of proof on dismissal despite evidence. 22. The prove of employment claims is as per section 47(5) of the Employment Act which states- ‘For any complaint of unfair termination of employment or wrongful dismissal the of employment or burden of proving that an unfair wrongful dismissal has occurred termination shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall the employer.’ J U D G M E N T I N M K O S E L R C A N O . E 0 3 6 O F 2 0 2 5 P a g e 6 | 17 rest on

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23. The appellant’s case is that the respondent did not prove a valid reason for the termination and that the reason did not meet the threshold of the burden of proof on dismissal despite evidence. 24. The case before the trial court proceeded by way of documentation and pleadings. The burden of proof of reasons for the termination lay with the respondent (employer) pursuant to section 43 of the Employment Act which states‘(1)In any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45. (2)The reason or reasons for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist, and which caused the employer to terminate the services of the employee.’ 25. Both parties availed to the trial court the letter of summary dismissal dated 27th November 2023. The respondent stated the reason for termination was absence from the shop floor without leave or lawful cause from 9th October 2023 to 14th October 2023. The respondent stated this was gross gross-misconduct under section 44(4)a) of the Employment Act. The provision states- J U D G M E N T I N M K O S E L R C A N O . E 0 3 6 O F 2 0 2 5 P a g e 7 | 17

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‘Any of the following matters may amount to gross misconduct so as to justify the summary dismissal of an employee for lawful cause, but the enumeration of such matters or the decision of an employer to dismiss an employee summarily an employer or under an employee from subsection (3) shall respectively not alleging or preclude disputing whether the facts giving rise to the same, or whether any other matters not mentioned in this section, constitute justifiable or lawful grounds for the dismissal if:— (a)without leave or other lawful cause, an employee absents himself from the place appointed for the performance of his work;’ (see page 9-10 of RoA and page 26 and 27 of RoA being the summary dismissal letter as produced by both parties under their lists of documents) 26. The facts of the absence were not in dispute as discerned from the witness statement of the appellant who admitted to being absent from the shop floor from 9th October 2023 on basis of having been unwell and admitted that he was unbale to disclose the hospital he attended and failed to produce supporting documents. He stated that 10 th Oct1ober was a public holiday(True). The appellant contended that had explained to the management his absence from 11th October on the basis of having attended the burial of his nephew. He stated that on resuming duty on 16th October 2023 he explained to the management the foregoing reasons. The court found the submissions at the appeal raised issues not J U D G M E N T I N M K O S E L R C A N O . E 0 3 6 O F 2 0 2 5 P a g e 8 | 17

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before the trial court of prove of the absence. The appellant admitted to the absence and thus it is moot to raise issues of proof of the absence. (page 23 of the RoA was the witness statement of the appellant) 27. The respondent at trial produced the disciplinary hearing minutes which reflected that the appellant had no documents to support the alleged hospital visit, had no receipt of purchase of medicine as alleged. It is recorded the employer was only aware the appellant was unwell on the Monday of 9th October. The employer, Manoj said he was not aware of the absence for the rest of the days and the appellant was unreachable. 28. The trial court on analysis of the foregoing evidence held the termination was proper and fair. 29. The court having re-evaluated the evidence before the trial court found no reason to interfere with the decision of the trial court. The appellant, in a witness statement, admitted to the absence from the shop floor without permission of the employer and was heard before the termination. The termination was valid as per section 45 of the Employment Act- ‘(2)A termination of employment by an employer is unfair if the employer fails to prove— (a)that the reason for the termination is valid;(b)that the reason for the termination is a fair reason— J U D G M E N T I N M K O S E L R C A N O . E 0 3 6 O F 2 0 2 5 P a g e 9 | 17

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(i)related to the employees conduct, capacity or compatibility; or (ii)based on the operational requirements of the employer; and (c)that the employment was terminated in accordance with fair procedure.’ 30. The court found the reason of absence without permission or lawful cause related to the conduct of the appellant. The reason is upheld as fair (section 43 and 45 of the Employment Act). Whether the trial court erred in fact and law in finding the termination was procedurally fair 31. The grounds of appeal under the issue were as follows‘(a)The Honourable Magistrate erred in law and in fact in failing to find that the termination, dismissal of the appellant by the respondent was unlawful, unfair, untimely, harsh and in complete disregard to the rules of natural justice and the Employment Act. (b)The Honourable Magistrate erred in law and in fact in failing to consider that the respondent did not consider any representations that the appellant may have given in his defence despite there being no valid reasons for termination. ‘ 32. The procedure for termination of employment on account of gross misconduct is as stated in section 41 of the Employment Act as follows- J U D G M E N T I N M K O S E L R C A N O . E 0 3 6 O F 2 0 2 5 P a g e 10 | 17

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‘41. Notification and hearing before termination on grounds of misconduct (1)Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation. (2)Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1) make.’ 33. In the instant case, the appellant’s representations are reflected in the minutes of the disciplinary proceedings as follows-‘ ‘MIN 2/23: PROCEEDINGS OF THE DISCIPLINARY HEARING Malumbu was given an opportunity to address the meeting and he responded by saying that the reason why he was absent on 9th October 2023 was that he was sick and went to the hospital where he J U D G M E N T I N M K O S E L R C A N O . E 0 3 6 O F 2 0 2 5 P a g e 11 | 17

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was diagnosed with pneumonia and was to be admitted but he didn't have money so he went to buy medicine instead. Ms. Rina inquired if he had any documentation to show or his hospital visit. Malumbu indicated that he had none. Ms. Obonyo further asked him to state to the panel the name of the hospital which he had visited and any receipts he had after purchasing the medicines. Mr. Malumbu indicated that he had already mentioned that he did not have any receipts with him. Mr. Malumbu failed to give the name of the hospital. He told the committee that he had a patient whom he had to attend to also, who passed away on Tuesday night, and therefore he went to make arrangements for the burial. Mr. Manor indicated that he only knew Mr. Malumbu was unwell on Monday and not the rest of the days, since he only received a single text message. Mr Manoj said that he had even given the HR the telephone number for Mr Malumbu to call him and find out where he was. Ms. Obonyo confirmed that he had made attempts to call Mr. Malumbu but he had failed to answer his calls….’(Page 7 of RoA are the minutes also signed by the appellant). J U D G M E N T I N M K O S E L R C A N O . E 0 3 6 O F 2 0 2 5 P a g e 12 | 17

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34. The court finds that the appellant’s representations were considered by the respondent as stated in the letter of dismissal as follows‘Reference is made to the incident on the dates 9th October 2023 to 14th October 2023, your written responses thereto and to the disciplinary hearing conducted on 25th November 2023. The Company has considered your explanation of the material incident that is; your absence and does not find the same satisfactory. In particular, as regards your explanation of your apparent hospital visit. Further to this your explanation of the surrounding circumstances was at variance and inconsistent at all times as to the hospital you visited and even lack of naming the hospital visited. The Management has given you sufficient time to produce any medical documentation supporting your alleged hospital visit and justify your absence. It has remained futile. Further you acknowledge attending a separate personal matter within the apparent sick leave without my notification to the supervisor, any leave day approved or permission sought. The HR Manager made attempts to call you through your telephone number +254752434387 on 12th October 2023 between the times 16:11 and 16:22; but you failed to answer. As a consequence we have come to the conclusion that your actions is in contravention to section 44 4 (a) of the Employment Act that states "...without leave or other lawful cause, an employee absents himself from the place appointed for the performance of his work..." amount to J U D G M E N T I N M K O S E L R C A N O . E 0 3 6 O F 2 0 2 5 P a g e 13 | 17

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gross misconduct and constitute justifiable grounds for your summary dismissal from employment. You are therefore summarily dismissed from the service of the Company with effect from 1ª December.’ 35. The appellant raised an issue of a letter dated 10 th November 2023 having not been availed. On perusal of the witness statement of the respondent I only found reference to letter of invitation to disciplinary hearing dated 22nd November 2023 and the same was produced before the trial court and it informed the appellant of right to be accompanied by fellow employee(see page 33 of RoA, witness statement of the respondent and page 6 of RoA the invitation dated 22nd November 2023). 36. I have found the process followed by the employer in the termination was procedurally fair(section 41 of the Employment Act). Whether the trial court erred in fact and law in failing to allow relief sought. 37. The grounds of appeal were as follows‘b) The Honourable Magistrate erred in law and in fact in failing to consider that the respondent failed to, in the alternative of giving termination notice, pay one month’s salary in lieu of notice to the appellant. b)The Honourable Magistrate erred in law and in fact by failing to consider that the appellant is entitled to terminal benefits and dues J U D G M E N T I N M K O S E L R C A N O . E 0 3 6 O F 2 0 2 5 P a g e 14 | 17

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owed to him and any assertions by the respondent that the claimant was not entitled to any benefits are those of disputatious sophist.’ 38. In the statement of claim before the trial court, the appellant sought for the following reliefa. 1 month notice in lieu Kshs. 39,859 b. compensation for 12 months salary unfair loss of employment c. breach of contract Kshs.100000 d. unremitted NHIF to be ascertained. 39. On the notice, the trial court held the – ‘Termination of the claimant was lawful, notice and due process was followed’. 40. The ground of appeal was as follows‘The Honourable Magistrate erred in law and in fact in failing to consider that the respondent failed to, in the alternative of giving termination notice, pay one month’s salary in lieu of notice to the appellant.’ 41. The appellant was dismissed on account of gross misconduct of absence from the place of work without lawful cause/permission. The conduct is subject of summary dismissal under section 44 of the Employment Act. J U D G M E N T I N M K O S E L R C A N O . E 0 3 6 O F 2 0 2 5 P a g e 15 | 17

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Section 44(1) of the Employment Act provides for summary dismissal without notice as follows‘Summary dismissal shall take place when an employer terminates the employment of an employee without notice or with less notice than that to which the employee is entitled by any statutory provision or contractual term.’ 42. In the instant case, the appellant was issued with notice to show cause and was heard before termination. The reason for termination has been upheld as valid. I find that having been issued with notice to show cause before the valid termination, the appellant was not entitled to payment of notice in lieu. 43. The claim for compensation was not due as the termination was lawful and fair. 44. The court upholds the decision of the trial court on the claim for breach of contract and NHIF. Disposition 45. The appeal is held to lack merit and is dismissed. The Judgment and Decree of the Hon. M.A. Nanzushi (SPM) delivered on 9 th June 2025 in Mavoko CMELRC No. E138 of 2024 is upheld. The respondent did not defend the appeal. I make no order as to costs in the appeal. J U D G M E N T I N M K O S E L R C A N O . E 0 3 6 O F 2 0 2 5 P a g e 16 | 17

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46. The file is marked as closed. 47. It is so ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT MACHAKOS THIS 18 th DAY OF SEPTEMBER, 2026. Jemimah Keli, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Appellant – Chepkorir h/b Mutonyi Respondent – No appearance J U D G M E N T I N M K O S E L R C A N O . E 0 3 6 O F 2 0 2 5 P a g e 17 | 17

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