Peter Uraa Mang'ee v AJ Ceramics Limited

c) That the costs of the lower court and the appeal be awarded to the Appellant. d) Interests from the date of judgement of the lower court on 1st 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 4 O F 2 0 2 5 P a g e 2 | 15

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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. 454,900/- as aforesaid. b) A declaration that the Claimant is entitled to a Certificate of Service. c) Costs of the claim plus interest therein. Any other further relief that the Honourable Court deems just and fit to grant. (pages 22-25 of Appellant’s ROA dated 28th July 2025). 9. 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 witness statement of even date (pages 27-33 of ROA). 10. The claim was opposed by the Respondent who entered appearance and filed a statement of response dated 20th September 2024 (pages 34-36 of J U D G M E N T I N M K O S E L R C A N O . E 0 3 4 O F 2 0 2 5 P a g e 3 | 15

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ROA). They also filed a witness statement of YVONNE A. OBONYO dated 17 th October 2024; and list and bundle of documents dated 20 th September 2024 (pages 37-50 of ROA). 11. In challenge to the response, the Claimant/Appellant filed a reply to defence dated 9th October 2024 (pages 18-19 of ROA). 12. By consent, both parties’ cases proceeded by way of documents (pages 1011 of ROA). 13. The court delivered its Judgment on 1 st June 2025 dismissing the Claimant/Appellant’s suit, with an order that each party bears their own costs, but ordering that the Claimant/Appellant be paid for days worked in February 2024 less statutory deductions, and be issued with a Certificate of Service (judgment at pages 12-16 of ROA). DETERMINATION 14. The appeal was canvassed through written submissions. Only the appellant lodged a hard copy, which was not filed on CTS. No appearance by the respondent. Issues for determination 15. The court on perusal of the grounds of appeal, discerned that the issues for determination in the appeal 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 4 O F 2 0 2 5 P a g e 4 | 15

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a. Whether the trial court erred in fact and law in finding that the appellant’s dismissal from employment was lawful and procedurally fair. b. Whether the appellant is entitled to the relief sought. Whether the trial court erred in fact and law in finding that the appellant’s dismissal from employment was lawful and procedurally fair. 16. The grounds of appeal 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 respondent did not consider any representations that the appellant may have given in his defence despite there being no valid reasons for termination. d) 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. J U D G M E N T I N M K O S E L R C A N O . E 0 3 4 O F 2 0 2 5 P a g e 5 | 15

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17. 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.” 18. The threshold for determination of fairness of termination of employment is according to the provisions of section 45 (2) of the Employment Act to wit:‘45(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— (i) related to the employees conduct, capacity or compatibility; or (ii) based on the operational requirements of the employer; and J U D G M E N T I N M K O S E L R C A N O . E 0 3 4 O F 2 0 2 5 P a g e 6 | 15

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(c) that the employment was terminated in accordance with fair procedure.’’ To pass the fairness test the termination must pass the substantive (in terms of reasons) fairness and the procedural fairness under section 41 of the Employment Act (Walter Ogal Anuro v Teachers Service Commission[2013]eKLR). 19. The court upheld the decision of the Court of Appeal relied on by the appellant in Khamis v Oxford University Press (E.A)Ltd (2017)KECA(480) to wit:‘A termination is also deemed substantively unfair where the employer fails to give valid reasons to support the termination. On the other hand, procedural unfairness arises where the employer fails to follow the laid down procedure as per contract, or fails to accord the employee an opportunity to be heard as by law required.’ 20. On the validity of the reason for the termination, the test is stated in section 43 of the Employment Act as – ‘43. Proof of reason for termination (1)In any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the J U D G M E N T I N M K O S E L R C A N O . E 0 3 4 O F 2 0 2 5 P a g e 7 | 15

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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.’ 21. The respondent issued the appellant with a letter of summary dismissal dated 23rd February 2024, and the reason for dismissal was stated as failure to obey lawful and proper command as relates to metal stands and suspicion of committing a crime to substantial detriment of the employer. (page 49 of RoA). 22. In statement of response the Respondent justified the reason for the dismissal as follows‘Under the terms of the Claimant's employment, he was required to adhere to the Respondent's code of conduct, both in letter and in spirit, and to faithfully perform his duties in service to the Respondent On or about 1st November 2023, the Respondent became aware, through its Closed Circuit Television (CCTV) network, that the Claimant, among others, had been observed engaging in suspicious activities during the loading of goods onto trucks belonging to the Respondent's customers. J U D G M E N T I N M K O S E L R C A N O . E 0 3 4 O F 2 0 2 5 P a g e 8 | 15

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Following this, the Claimant was summoned to the Respondent's offices for an investigation regarding his activities captured on the CCTV footage. Annexed hereto as Appendix A is a copy of the invitation letter to the Claimant, and as Appendix B. a copy of the Claimant's explanation provided during the meeting. As the CCTV footage suggested that the Claimant was conspiring to steal metal rods during loading, he was issued with a Notice to Show Cause dated 18th December 2023. The notice outlined the allegations based on the CCTV footage and his conduct, to which the Claimant responded in writing. Annexed as Appendix C & D are copies of the Notice to Show Cause and the written responses. The Claimant was subsequently invited to a disciplinary hearing by a letter dated 10th January 2024, which also informed him of his right to be accompanied by a colleague of his choice. The hearing was scheduled for 18th January 2024. Annexed hereto as Appendix E is a copy of the invitation to the disciplinary hearing, duly received by the Claimant. The disciplinary hearing took place on 18th January 2024, with the Claimant in attendance, where he was given the opportunity to present his case regarding the disciplinary charges. Annexed hereto and marked as Appendix F are the disciplinary minutes of the said meeting. After reviewing the Claimant's representations at the hearing, the Respondent decided to summarily dismiss him for gross misconduct, as communicated in a letter dated 23rd February 2024. Annexed hereto and J U D G M E N T I N M K O S E L R C A N O . E 0 3 4 O F 2 0 2 5 P a g e 9 | 15

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marked as Appendix G is a copy of the summary dismissal letter.’ (pages 34-35 of RoA was the statement of response). 23. Conversely, the appellant stated in claim before the trial court‘16. The Claimant avers that on 18 December 2023, he was issued with a show cause letter dated 18 December 2023 stating that he and his colleagues were seen via CCTV footage putting metal stands belonging to the company without permission or authorisation. The claimant avers that he responded to the said letter and stated that he was assisting the loaders to remove metal bars at the company's loading zone in order to create space for arranging the tiles. The claimant further stated that he did not commit any offence as alleged in the show case letter.’(page 23 of RoA being the claim) 24. The appellant filed a reply to the defence and stated he joined issue with the averments by the respondent. The respondent in its list of documents was the invitation letter to view CCTV (page 41 of RoA)and minutes of meeting to view CCTV(PAGE 42 of RoA) where after watching the CCTV its is recorded the appellant admitted to have participated in removal of the metal rods and having given them to one Robert and the same were taken away but he never informed the supervisor. 25. By consent, the parties proceeded by way of documents as filed and written submissions (page 11 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 4 O F 2 0 2 5 P a g e 10 | 15

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26. The documents by the appellant were the demand letter , show cause letter , and NSSF statement (page 21 of RoA). 27. The trial court held that, in the totality of facts before the court, the respondent had demonstrated that the claimant was guilty of gross misconduct. 28. The appellant to impugn the validity of reason submitted that the allegations were not substantiated, that the CCTV footage was not presented in court, and no independently authenticated CCTV was produced. He relied on the decision in Mbuba and another v Mwangi and another 2023 KEERLC 543(KLR) where the court held as follows- ‘‘The reason cited for the dismissal was stealing of 100kgs of meat from the employer’s fridge by the 1st claimant and accumulated shortages of Kshs 24,000.00 resulting from direct orders from customers and receiving payment by the 2nd claimant. The claimants have denied the said offences. The respondents produced no CCTV footages to prove the alleged theft of 100kgs of meat. Without such evidence there is no evidence to prove the alleged theft because none of the witnesses saw the meat being stolen. Besides there is no evidence tendered by the respondent to prove that indeed there was 100kgs of meat in the fridge.’’ 29. I find that in the instant case, the parties relied on documents and the respondent produced an invitation to the appellant to watch the CCTV J U D G M E N T I N M K O S E L R C A N O . E 0 3 4 O F 2 0 2 5 P a g e 11 | 15

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footage, and the minutes of the watching and interrogation of the appellant were produced. The appellant did not challenge the production of the minutes. In the minutes, the appellant admitted to the accusations. It is not the role of the court to substitute its thoughts on appropriate sanction with that of the employer. The court finds no basis to upset the finding of the trial court to effect that the totality of facts before the court supported a finding of a valid reason for termination. In this case, the reason was related to the conduct of the appellant as an employee. 30. Procedural fairness- the same is as stated in section 41 of the Employment Act, to wit:‘ 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 J U D G M E N T I N M K O S E L R C A N O . E 0 3 4 O F 2 0 2 5 P a g e 12 | 15

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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.’ 31. The grounds of appeal were‘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. 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 appellant in the claim only raised the issue of his representations not having been taken into account. The issue of lack of specificity of charge and lack of adequate time to respond was raised in the submissions; these are not found in the pleadings (see paragraph 15 of the claim, at page 23 of ROA). Submissions are not pleadings. The court perused the minutes of the disciplinary hearing. The minutes reflect what the appellant stated in the proceedings (page 48 of the ROA). The trial court held there was fair hearing. Upon re-evaluation of evidence before the trial court, I find no reason to disturb the finding on procedural hearing. J U D G M E N T I N M K O S E L R C A N O . E 0 3 4 O F 2 0 2 5 P a g e 13 | 15

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Whether the appellant is entitled to the relief sought. 33. The trial court held that the termination was lawful and fair and awarded unpaid wages and certificate of service as well as ordered regularisation of the NHIF records. There is no cross-appeal. The trial court ordered for each party to bear own costs. It is a truism that costs follow the event. Salary was ordered to be paid. It is not explained why the court deviated from the principle. To this limited extent, I disturb the judgment of the lower court and award costs of the suit, with interest thereon, to the appellant. Disposition 34. In the upshot, the appeal is allowed partially with regard to costs and interest. The Judgment and Decree of the Hon. B. Ojoo (CM) delivered on 1 st June 2025 in Mavoko CMELRC No. E135 of 2024 is set aside and substituted as follows‘Judgment is entered for the claimant against the respondent as followsa. THAT the Respondent to pay the Claimant for the days worked in the month of February 2024 less statutory deductions and issue him with a Certificate of Service (under section 51 of the Act) within 30days hereof. b. Costs and interest c. THAT pending final clearance of the employee and issuance of the certificate of service, the Respondent to regularise records and ensure all NHIF deductions are remitted.’ J U D G M E N T I N M K O S E L R C A N O . E 0 3 4 O F 2 0 2 5 P a g e 14 | 15

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35. The appellant is awarded ½ costs of the appeal. 36. It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT 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 4 O F 2 0 2 5 P a g e 15 | 15

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