Krystalline Salt Limited (Gongoni) v Paul Nyandiko Nyakioga

Elrc Appeal No. E023 Of 2024 the whole of the judgment of Hon. James Ongondo, Senior Principal Magistrate, delivered on 30th October 2024 at the Chief Magistrate’s Court, Malindi, in Employment and Labour Relations Cause No. E013 of 2021, Paul Nyandiko Nyakioga v Krystalline Salt Limited. I note, at the outset, that the record before me is not entirely consistent as to the number borne by the cause before the trial court: the Memorandum of Appeal and both parties’ written submissions on this appeal refer to it as “MCELRC No. E013 of 2021”, while the judgment itself, and the Decree extracted from it, bear the citation “ELRC No. E31 of 2021” (also rendered as “Cause No. 31 of 2021”). Nothing turns on this discrepancy, which I attribute to an administrative slip in the registry rather than to any confusion as to the identity of the cause, there being only one judgment, one set of parties and one set of facts before me. I adopt, for convenience, the citation used on the face of the Memorandum of Appeal. 2. By that judgment, the trial court found that the respondent, Paul Nyandiko Nyakioga (“the respondent”), a security guard 2

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Elrc Appeal No. E023 Of 2024 in the appellant’s employment, had been unfairly and unlawfully terminated from his employment, and entered judgment for him in the total sum of Kshs. 502,593/=, comprising: (a) one month’s salary in lieu of notice, Kshs. 16,144/=; (b) twelve months’ salary as compensation for unfair termination under section 49(1)(c) of the Employment Act, 2007, Kshs. 193,728/=; (c) unpaid leave for two years, Kshs. 32,288/=; (d) unpaid overtime, Kshs. 225,280/=; (e) underpayment for five months, Kshs. 23,975/=; and (f) salary for eighteen days worked in October 2018, Kshs. 11,178/=, together with an order for the issuance of a certificate of service, the costs of the suit and interest at court rates. 3. The appeal is brought on five grounds set out in the Memorandum of Appeal, to which I return below. In substance, it raises three connected questions: first, whether the reason the appellant advanced for the respondent’s summary dismissal was one capable, in law, of being described as a valid and fair reason, given the manner in 3

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Elrc Appeal No. E023 Of 2024 which it was framed and reframed across the disciplinary record and at trial; second, whether the process by which the respondent was purportedly dismissed met the standard of procedural fairness prescribed by section 41 of the Employment Act, 2007, in circumstances where the respondent was, for much of the material period, in police custody; and third, whether the reliefs awarded by the trial court were, in each instance, properly grounded on the evidence and the law. I deal with each in turn, but only after setting out, in some detail, the course the matter took before the trial court, and the submissions the parties have respectively made on this appeal — the latter set out, as the nature and detail of this appeal warrant, in a section of its own for each party. B. THE PROCEEDINGS BEFORE THE TRIAL COURT The Pleadings 4. By a Memorandum of Claim filed on or about 17th September 2021, the respondent sued the appellant, his former employer, alleging that he had been employed on or 4

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Elrc Appeal No. E023 Of 2024 about 1st February 2016 as a security guard/watchman, initially at the appellant’s Gongoni salt fields and later at its Marereni sites, at a gross monthly wage which, by the Minimum Wage Order applicable in 2018, ought to have stood at Kshs. 16,144/=. He averred that he discharged his duties without blemish until 18th October 2018, when he was arrested at the instance of the appellant and charged in Malindi Criminal Case No. 1009 of 2018, Republic v Paul Nyandiko Nyakioga, with failing to prevent a felony, namely the theft of diesel from an excavator on the appellant’s premises; that he was held in custody for a material period before being released on bail; that he was ultimately acquitted under section 210 of the Criminal Procedure Code on 30th October 2020; and that when he reported back to work he was turned away at the gate, without ever having been served with a valid notice to show cause, without having been afforded a disciplinary hearing at which he was actually present, and without ever having received a letter of termination. He pleaded that his purported dismissal was, in 5

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Elrc Appeal No. E023 Of 2024 the circumstances, both substantively and procedurally unfair, in breach of sections 41, 43, 45 and 47(5) of the Employment Act, 2007, and sought the sum of Kshs. 648,190/=, particularised under the heads of underpayment, notice pay, gratuity, leave allowance, salary for eighteen days worked in October 2018, overtime and twelve months’ compensation, together with a certificate of service, costs and interest. 5. The appellant entered appearance and filed its Memorandum of Defence dated 10th December 2021. It admitted the fact of the respondent’s employment but denied that his termination was unfair. Its pleaded case, which lies at the heart of this appeal and to which I return at length below, was that the respondent was, in the events of 18th October 2018, guilty of three distinct species of wrongdoing: that he had committed theft of fuel from the very station assigned to him for safekeeping; that he was, in the alternative, under suspicion of having merely watched the theft of diesel take place without intervening; and that he had, in any event, 6

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Elrc Appeal No. E023 Of 2024 made no attempt to assist his supervisor to apprehend the thieves. It pleaded that a notice to show cause dated 19th October 2018 was issued to him, that a disciplinary hearing was convened on 29th October 2018, and that he was thereafter summarily dismissed by a letter dated 31st October 2018. It denied owing the respondent any of the sums claimed and prayed that the suit be dismissed with costs. The Evidence 6. The matter proceeded to a full hearing before the trial court on 28th May 2024, at which the respondent testified as PW1 and the appellant called a single witness, Ms. Philister Mwamuye, its Human Resource Officer, as DW1. 7. The respondent’s evidence, both in his witness statement adopted as his evidence-in-chief and under cross- examination, was to the following effect. He was employed as a security guard on or about 4th March 2016 — a date that does not sit entirely easily with the date pleaded in his own Memorandum of Claim, a discrepancy I address in 7

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Elrc Appeal No. E023 Of 2024 passing at paragraph 15 below — and was assigned to guard the appellant’s premises, including its excavators and, on the material night, a lorry that had broken down some distance from them. While on patrol, he was informed that diesel was being siphoned from the excavators by persons unknown, and he was thereafter arrested on suspicion of having failed to prevent, or of having colluded in, that theft. He maintained that he was never served with any notice to show cause, that he did not participate in any disciplinary proceedings, that no minutes of any such proceedings existed in respect of the 2017 disciplinary process to which he was separately subjected, and that he was not paid overtime to which he was entitled. Of particular significance to this appeal, he testified, when confronted in crossexamination with three leave application forms which the appellant had placed on the record as exhibits, that “the leave application is not true. I applied for leave but was declined. I have no application form before Court.” He further testified, and this evidence was not shaken, that he 8

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Elrc Appeal No. E023 Of 2024 was arrested on 18th October 2018, held at Marereni Police Station until 22nd October 2018 when he was arraigned and charged, and that he “could not attend the disciplinary proceedings of 29th October 2018” since he was “charged and remanded for 7 days” after the taking of his plea, so that he remained in custody well beyond the date on which the disciplinary hearing is said to have taken place. 8. DW1’s evidence, in examination-in-chief, was that she personally signed and issued all the warning letters and the notice to show cause to the respondent, that he acknowledged receipt of each by signing, that he was present at the disciplinary hearing though he refused to sign its minutes, and that he was paid his salary for October and November 2018 by cheque. Under cross-examination, however, her evidence yielded a markedly different, and in this Court’s view telling, picture. She confirmed that the notice to show cause dated 19th October 2018 records, on its face, that the respondent “refused to acknowledge receipt”, witnessed by two of his colleagues, Austine 9

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Elrc Appeal No. E023 Of 2024 Ongondi and Fredrick Mumbo, and she was constrained to concede that “Austin and Fredrick are not witnesses” in any formal sense capable of being relied upon. She confirmed that the respondent was arrested on 18th October 2018, charged on 22nd October 2018, and released only after seven days, and — critically — she conceded that she had “no other evidence to show Claimant was at my office on the said dates. It is not possible to get from custody and return.” Most significantly for the analysis that follows, when asked about the reason for the respondent’s dismissal, DW1 stated in terms: “We did not say he was terminated for theft but poor performance. Excavator drivers ran away. They were not arrested. They worked for Respondent.” The Judgment of the Trial Court 9. In its judgment delivered on 30th October 2024, the trial court, having reviewed the evidence of both parties, made two central findings. First, on the reason for dismissal, it held that the reason given — that the respondent had neglected his duty under section 44(4)(c) of the Employment Act, 2007 10

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Elrc Appeal No. E023 Of 2024 — “cannot be said to be valid since the Claimant attended duty and was at the assignment,” noting that he had been tasked to guard a stalled truck away from the excavators, and that “the said supervisor whom the Claimant is alleged to have refused to assist is the one who saw the thieves and should have been the one held to account for the theft since the Claimant was at the stalled truck area then,” the supervisor never having been called to testify. Second, on procedure, the trial court found that “it is clear from the criminal proceedings that the Claimant was still in custody when the purported notice to show cause dated 18th October, 2018 was served upon him,” and that the notice was, on its face, “contradictory as it is indicated by hand and witnessed by Austine and Fredrick on the top that the Claimant had refused to acknowledge the notice yet it is indicated at the bottom that he acknowledged by signing,” such that “the Claimant could not attend the proceedings of 29th October, 2018.” I note, without attaching any significance to it beyond what I have already said at 11

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Elrc Appeal No. E023 Of 2024 paragraph 1 above, that the trial court there gave the date of the notice to show cause as 18th October 2018, whereas the document itself, and every other reference to it on the record, bears the date 19th October 2018; this is plainly no more than a slip of the pen, immaterial to the substance of the finding. 10. On that analysis, the trial court concluded that “the Claimant’s termination was unfair and unlawful,” and entered judgment for the respondent in the sums and on the heads set out at paragraph 2 above, while declining to award gratuity, that relief not having been provided for in the contract of employment. C. THE APPEAL 11. Aggrieved, the appellant filed a Memorandum of Appeal dated 13th November 2024, advancing five grounds, which I reproduce in full: “1) THAT the Learned Trial Magistrate erred in Law and in fact and misdirected himself in holding that 12

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Elrc Appeal No. E023 Of 2024 the Respondent was wrongfully and unfairly terminated. 2) THAT the Learned Trial Magistrate erred in Law and in fact and misdirected himself in awarding the Respondent twelve (12) months’ salary in compensation for unfair termination. 3) THAT the Learned Trial Magistrate erred in Law and in fact and misdirected himself in finding that the Respondent had not been paid notice pay, leave, overtime and 18 days worked in the month of October 2018. 4) THAT the Learned Trial Magistrate erred in Law and in fact and misdirected himself in awarding the Respondent salary in lieu of notice, leave, overtime, underpayment and 18 days worked in the month of October 2018. 5) THAT the Learned Trial Magistrate erred in Law and in fact in failing to take into account the Appellant’s evidence and submissions.” 13

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Elrc Appeal No. E023 Of 2024 12. I observe, in passing, that grounds 3 and 4 sit uneasily together, the one complaining that the trial court erred in finding that certain sums had not been paid, the other complaining that it erred in awarding those very sums — a want of precision in draftsmanship that is not, however, fatal to the appeal, since the substance of the complaint, taken as a whole and as elaborated in the written submissions, is plain enough: that the trial court ought to have found that notice pay, leave, overtime, underpayment and the salary for eighteen days worked in October 2018 had in fact been settled, or were otherwise not properly proved, and erred in awarding them. The Appellant’s Submissions 13. In its written submissions, the appellant sets out a summary of the facts, evidence and awards made below, and urges this Court, sitting as a first appellate court, to reappraise the evidence afresh. Its principal contentions may be summarised as follows. On the reason for dismissal, it submits that the respondent was, on his own admission, the 14

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Elrc Appeal No. E023 Of 2024 guard assigned to the very excavator from which the diesel was stolen, and that his warning letters — for sleeping on duty in 2017 and for lateness in September 2018 — together establish a pattern of neglect sufficient to justify summary dismissal under section 44(4)(c) of the Employment Act, 2007, relying on Ngondi v Factory Guards (MBA) Limited [2022] KEELRC 1521 (KLR). On procedure, it submits that the disciplinary hearing minutes of 29th October 2018, at page 41 of the Record of Appeal, confirm the respondent’s attendance and participation, and that the trial court erred in disregarding them. On reliefs, it submits, relying on Vincent Abuya Obunga v Mast Rental Services Limited [2009] eKLR and Naftali Priva Kitatu v Jitegemee Sacco Society Limited [2021] eKLR, that an employee summarily dismissed is, as a matter of law, not entitled to salary in lieu of notice; that the leave application forms at pages 56 to 58 of the Record of Appeal establish that the respondent did in fact proceed on leave in 2016, 2017 and 2018, contrary to his denial, and that the Kshs. 2,650/= leave encashment reflected in his 15

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Elrc Appeal No. E023 Of 2024 November 2018 payslip, which it admits is owing, is the only sum properly due under that head; that his salary for October 2018 was paid in full, as shown by the payslip for that month; that the claim for overtime, computed by an undifferentiated formula rather than by reference to specific dates and hours worked, was not pleaded with the particularity the law requires, citing Nandi v Super Bargains Glass & Hardware, Cause No. 216 of 2018, [2024] KEELRC 840 (KLR); and that the claim for underpayment is disproved by the payslips on record. Finally, on quantum of compensation, it submits that should this Court uphold the finding of unfair termination, the appropriate award, having regard to the respondent’s comparatively short length of service, ought to be reduced from twelve months to a figure in the region of two months’ gross pay, relying on Alfred Ogenche Nchore v Kenya Kazi Services Ltd (2022) eKLR, Justus Orina Mariita v Accurate Steel Mills Limited (2022) eKLR and Joseph Mwaniki Nganga v United Millers Limited [2022] eKLR, in each of 16 which awards of unlawful-

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Elrc Appeal No. E023 Of 2024 termination compensation were substantially reduced on appeal notwithstanding trial-court findings of unfair dismissal. The Respondent’s Submissions 14. The respondent, for his part, filed submissions reproducing the five grounds of appeal verbatim and setting out a background largely consonant with his pleaded case: that he was employed on 1st February 2016 as a guard at a wage of Kshs. 16,144/= per month; that he was arrested on 18th October 2018 for failing to prevent a felony, released on cash bail, and ultimately acquitted; and that upon reporting back to work he was denied re-entry. He submits, correctly in this Court’s assessment for the reasons that follow, that the reason recorded by the appellant for his dismissal — neglect of duty under section 44(4)(c) of the Employment Act, 2007 — was found by the trial court, after a careful and, in the main, sound analysis of the evidence which the respondent reproduces at length, not to be a valid reason, since it was in fact the supervisor, and not the respondent, 17

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Elrc Appeal No. E023 Of 2024 who witnessed the theft and who alone could have been expected to apprehend the culprits, and since that supervisor was never called to testify. He further submits that the notice to show cause was, on its own face, internally contradictory as between an assertion of refusal to acknowledge and an assertion of acknowledgment by signature, and that no disciplinary hearing at which he was genuinely present could, in the circumstances of his custody, have taken place on 29th October 2018. On this basis, he submits that this Court should find, as did the trial court, that “there is no evidence of the Appellant taking the Respondent through disciplinary hearing”, and that the award of twelve months’ compensation was not merely justified but, given what he characterises as the appellant’s “malicious prosecuting of an innocent respondent”, itself conservative. He asserts, further, that the appellant, as custodian of its own personnel records, “did not produce any leave forms, master roll and/or any document to rebut the Respondent[’s] claim for compensation.” I pause to observe, since it bears 18

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Elrc Appeal No. E023 Of 2024 directly on the reliefs I consider later in this judgment, that this last assertion cannot be reconciled with the record as I have found it to be: three leave application forms, bearing the respondent’s employee number, dates, and the signatures of his supervisors and functional head, were in fact produced by the appellant among its listed documents and were put to the respondent, if not entirely successfully, in cross-examination. I return to this at paragraph 30 below. The respondent prays that the appeal be dismissed with costs. D. ISSUES FOR DETERMINATION 15. Having considered the record of appeal, the grounds of appeal and the rival submissions, I find that the following issues arise for determination: (a) Whether the reason or reasons advanced by the appellant for the respondent’s summary dismissal were, given the manner in which they were framed and reframed across the disciplinary record and at trial, 19

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Elrc Appeal No. E023 Of 2024 capable of amounting to a valid and fair reason within the meaning of the Employment Act, 2007; (b) Whether the trial court erred in finding that the respondent’s dismissal was procedurally unfair; (c) Whether the trial court erred in any of the reliefs it granted; and (d) What orders should issue on this appeal, including as to costs. E. ANALYSIS AND DETERMINATION The Standard of Review on a First Appeal 16. This being a first appeal, I am guided by the well-settled principle restated in Selle v Associated Motor Boat Co. Ltd [1968] EA 123, that an appeal of this nature proceeds by way of retrial: this Court is obliged to reconsider and reevaluate the evidence on record afresh and to reach its own independent conclusions, while making due allowance for the fact that, unlike the trial court, it neither saw nor heard 20

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Elrc Appeal No. E023 Of 2024 the witnesses testify. I have approached the record on that footing. The “Moving Target”: Shifting and Inconsistent Characterisation of the Reason for Dismissal 17. I consider it necessary to begin with a matter that, though not framed by either party in quite these terms, lies at the very root of this appeal and, in this Court’s assessment, is dispositive of the question of substantive fairness. It concerns the manner in which the appellant characterised, and repeatedly recharacterised, the conduct for which it dismissed the respondent. 18. The appellant’s own Memorandum of Defence dated 10th December 2021 accuses the respondent, in substance, of three things: first, that he committed theft of fuel from the station assigned to him for safekeeping — that is to say, that he was himself a principal in the theft; second, and pleaded in the alternative, that he was under suspicion of merely watching the theft of diesel take place without intervening — that is to say, that he was, at worst, a passive accessory who 21

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Elrc Appeal No. E023 Of 2024 did nothing while others committed the offence; and third, that he made no attempt to assist his supervisor to apprehend the thieves. It is, with respect, only either of the first two characterisations that can, as a matter of simple logic, be true of the same person in respect of the same incident. An employee who is himself stealing company property is not, at the same moment, a bystander merely watching others steal it; and an employee who is merely watching, however culpably, is not thereby a thief. The two are not cumulative particulars of a single course of conduct, of the kind an employer may properly plead in the alternative pending the evidence; exclusive characterisations of they are mutually fundamentally different conduct, carrying fundamentally different moral and legal content — the one an allegation of theft properly so called, contrary to section 44(4)(g) of the Employment Act, 2007 and, indeed, to the criminal law; the other, at most, an allegation of a dereliction of the duty of vigilance. An employer who pleads both in the same breath, without 22

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Elrc Appeal No. E023 Of 2024 troubling to say which it in fact believes to be true, has not identified a reason for dismissal at all; it has identified a range of possibilities from which the employee, and in due course the court, are left to guess. 19. That initial imprecision did not resolve itself as the disciplinary process unfolded; if anything, it multiplied. The notice to show cause dated 19th October 2018, which I have had occasion to examine, is headed “SHOW CAUSE LETTER” and opens with the words: “We have received reports of your poor performance on the following instance:-”. It particularises the “instance” in these terms: “It is your responsibility to protect company property but on 18th October 2018, you failed to prevent theft of company diesel at the project site. You had been allocated where the excavators were working and that’s where outsiders and the excavator operator coluded [sic] to siphone [sic] three 20 ltr jericanes of diesel while you were looking on.” Here, then, is a third formulation, narrower than either limb of the Memorandum of Defence: not an accusation of theft, nor of 23

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Elrc Appeal No. E023 Of 2024 criminal complicity, but of a failure to protect company property — a species of omission, framed, oddly, under the heading of “poor performance”, a phrase nowhere else used in any document that predates this suit. 20. The minutes of the disciplinary hearing said to have been held on 29th October 2018 supply a fourth formulation again. They record the committee’s conclusion in these terms: “Paul Nyandiko to be terminated for colluding with others to steal company property instead of him protecting it. Also he failed to join and assist his supervisor in arresting the culprit[s].” This reintroduces the language of “colluding”, that is, of complicity in the theft — a return to the accessory theory of the Memorandum of Defence — layered atop the omission theory of the show cause letter and the failure-toassist theory first raised in the Memorandum of Defence. 21. Finally, and most tellingly, DW1, the appellant’s own Human Resource Officer and the author of the show cause letter itself, testified under cross-examination before the trial court that “we did not say he was terminated for theft but poor 24

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Elrc Appeal No. E023 Of 2024 performance.” This fifth formulation cannot be reconciled with any of the four that preceded it. It cannot be reconciled with the Memorandum of Defence, which speaks in terms of theft and criminal complicity. It cannot be reconciled with the disciplinary minutes, which speak of “colluding … to steal”. And, critically, it cannot be reconciled with the documentary record that predates this suit at all. I have examined that record with care — the two earlier show cause letters, dated 18th February 2017 and 27th September 2018, which concern sleeping on duty and lateness respectively; the warning letter of 11th August 2017; the show cause letter of 19th October 2018 itself; and the summary dismissal letter — and in none of them does “poor performance”, in the ordinary sense of underachievement or substandard execution of one’s duties as a species of complaint distinct from a specific act of misconduct, ever feature as an independent, particularised ground. The phrase appears exactly once, as the generic heading of the 19th October 2018 letter, immediately 25

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Elrc Appeal No. E023 Of 2024 followed by particulars that are, on their face, about an alleged failure to prevent theft, not about performance in any general sense. DW1’s attempt, at trial and after the fact, to recast the respondent’s dismissal as one for “poor performance” — a characterisation that appears nowhere in the show disciplinary cause letter’s minutes’ particulars, conclusion, and nowhere in the nowhere in the summary dismissal letter — is not a legitimate restatement of an existing reason; it is a new reason, conjured at trial, unsupported by any document that predates the filing of this suit. 22. This Court must be firm on the principle at stake here. The infractions alleged against an employee cannot be permitted to be a moving target. Sections 43 and 45(2)(a) and (b) of the Employment Act, 2007 require an employer to prove the reason for termination, and to prove that the reason is both valid and fair. That statutory demand presupposes a reason capable of being identified with reasonable precision and adhered to consistently, from the moment it is first 26

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Elrc Appeal No. E023 Of 2024 advanced to the moment it is tested in court. An employer who is permitted to shift the characterisation of an employee’s alleged wrongdoing according to the exigencies of the moment — theft here, complicity there, a bare failure to protect property elsewhere, collusion in the disciplinary minutes, and, when all else is put to proof, an untethered assertion of “poor performance” at trial — is not proving a reason; it is evading the burden the statute places upon it, by ensuring that whichever characterisation is challenged, another remains in reserve. Where an employer allows the reason for a dismissal to acquire that shifting, opportunistic character, it does so at the risk, which in this case has plainly materialised, of the reason losing altogether the validity and fairness contemplated by sections 43 and 45 of the Employment Act, 2007. A court cannot find a reason to be “valid” within the meaning of section 45(2)(a) when the employer itself is unable to settle on what the reason was; validity presupposes a fixed and ascertainable proposition capable of being tested, not a moving target designed, 27

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Elrc Appeal No. E023 Of 2024 whether by design or by simple want of rigour, to elude scrutiny. This alone, in my judgment, is sufficient to dispose of the question of substantive fairness against the appellant. Substantive Justification 23. Independently of the foregoing, and adopting the critical interrogation of the documents actually placed before the trial court that this appeal calls for, I am satisfied that the reason for dismissal, however it is characterised, was in any event not proved. The documents before the trial court — the Memorandum of Defence, the notice to show cause of 19th October 2018, the disciplinary hearing minutes of 29th October 2018 and the summary dismissal letter of 31st October 2018 — establish, at their highest, that the respondent was on duty in the general vicinity of the theft, guarding a stalled lorry some distance from the excavators, and that a supervisor, and not the respondent, actually witnessed the theft taking place. That supervisor was never called to testify, whether before the trial court or, by way of any application to adduce further evidence, before this 28

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Elrc Appeal No. E023 Of 2024 Court, notwithstanding that his account was central to both theories of the respondent’s culpability. His absence is telling, and the trial court was right to draw an adverse inference from it. I am satisfied, as was the trial court, that the reason for dismissal was not proved to the standard sections 43 and 45(2) of the Employment Act, 2007 demand, and that the trial court’s finding that the summary dismissal was unfair and wrongful was, on this ground too, without error. Procedural Fairness 24. I turn to the question of procedure, which the record illuminates, if anything, more starkly than the question of substance. 25. It is not disputed, and could not seriously be disputed on this record, that the respondent was arrested on 18th October 2018 and held at Marereni Police Station; that he was arraigned and charged in Malindi Criminal Case No. 1009 of 2018 on 22nd October 2018; and that, on his own unchallenged testimony, he “remained in custody for seven 29

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Elrc Appeal No. E023 Of 2024 (7) more days after taking a plea” before he was able to secure his release. DW1, the appellant’s sole witness, did not dislodge this account in any material particular; on the contrary, she conceded that she had “no other evidence to show Claimant was at my office on the said dates,” and, when pressed, accepted in terms that “it is not possible to get from custody and return.” In light of that material — the appellant’s own witness conceding the practical impossibility of the very attendance her documents purport to record — I find, as did the trial court, that the appellant did not dislodge the respondent’s account of his custody and its consequences for his ability to participate in any disciplinary process during the material period. 26. Against that unchallenged timeline, the notice to show cause dated 19th October 2018 — issued, on its face, the day after the respondent’s arrest, while he was already in police custody — bears an annotation, in manuscript, at its head, reading “Refused to acknowledge receipt”, purportedly witnessed by two of the respondent’s colleagues, Austine 30

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Elrc Appeal No. E023 Of 2024 Ongondi and Fredrick Mumbo, and dated 19/10/2018. Yet the same document also bears a separate “Acknowledgement” block at its foot, purporting to carry the respondent’s own signature, dated 26th October 2018 — a date on which, on the unchallenged evidence, he remained in custody. A document cannot simultaneously record that an employee refused, in the presence of witnesses, to acknowledge receipt of a letter on the day of its issue, and that the same employee personally signed to acknowledge that same letter a week later, while detained at a police station many kilometres from his employer’s premises. That internal contradiction, which the trial court was right to seize upon, is not a mere clerical infelicity; it is compelling evidence that the notice was never, in truth, served on the respondent at all, and that the acknowledgment portion of the document was completed after the fact, in his absence and without his participation, precisely as the respondent has consistently maintained. I am satisfied that the notice to show cause was not received by the respondent, that the “witnesses” whose 31

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Elrc Appeal No. E023 Of 2024 names appear upon it — themselves the respondent’s coworkers, neither of whom the appellant called to testify and explain the circumstances of the purported refusal, and DW1 herself having conceded under cross-examination that “Austin and Fredrick are not witnesses” — supply no reliable corroboration of service, and that the document, taken as a whole, bears the hallmarks of an afterthought, assembled to create a paper trail of compliance rather than to record an event that in truth occurred. 27. The disciplinary hearing minutes fare no better. They record the respondent as “Present” at a hearing convened on 29th October 2018 — a date squarely within the period of his custody, on the appellant’s own witness’s concession that he could not have left custody and returned. The minutes purport to attribute to the respondent a series of answers given during the course of the hearing, yet at their foot, under the heading “Confirmed by”, the list of six participants includes the entry: “6. Paul Nyandiko — did not sign as he said he will do so only after getting a go ahead from his 32

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Elrc Appeal No. E023 Of 2024 advocate.” It is a document that asks this Court to accept, in the same breath, that the respondent was sufficiently present to answer detailed questions from four different interlocutors over the course of an extended exchange, and yet was, at the moment of signing, sufficiently absent, or sufficiently guarded, as to defer his signature pending legal advice he could not, on the unchallenged evidence, have had any opportunity to obtain while in custody. The minutes contain nothing — no independent signature, no acknowledgment, no corroboration from any participant other than the appellant’s own employees — capable of verifying that the respondent in fact attended. Self- generated and self-serving in the manner I have described, and directly contradicted by the unchallenged evidence of the respondent’s custody, the minutes cannot be relied upon to establish that a fair hearing, or any hearing at all, was in fact afforded to the respondent before his dismissal. 28. I am fortified in this conclusion by a number of further matters going to the overall fairness of the process and to 33

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Elrc Appeal No. E023 Of 2024 the candour, or want of it, with which the appellant conducted its case. First, the supervisor who is said to have actually witnessed the theft, and whose account was indispensable to any fair assessment of the respondent’s culpability, was never called, whether at the disciplinary hearing — there being no record that he gave any account there either — or at trial; an employer who withholds its key witness while asking a court to accept its own hearsay characterisation of what that witness is supposed to have seen does not discharge its burden. Second, the appellant’s own witness could offer no explanation, when pressed, for how service was in fact effected, for the discrepancy between the two limbs of the annotation on the show cause letter, or for how attendance at a hearing was reconciled with custody; a witness reduced to conceding the central planks of the opposing case is not a witness upon whose evidence a finding of procedural regularity can safely rest. Third, no register, roster, or other contemporaneous document was produced to show when and how the 34

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Elrc Appeal No. E023 Of 2024 respondent came to sign, or to refuse to sign, any of the various letters and minutes said to bear his signature or his refusal, in circumstances where his physical presence at the workplace on the relevant dates was, on the unchallenged evidence, an impossibility. Taken together, these matters disclose not an isolated procedural lapse but a pattern — a show cause letter that could not have been served as recorded, a disciplinary hearing that could not have been attended as recorded, and a key witness never called to testify — which speaks to a fundamental want of candour on the appellant’s part, as much as to a want of procedural fairness properly so called. I find, as did the trial court, that the respondent’s dismissal was procedurally unfair, and that this finding of the trial court cannot be faulted. Conclusion on Liability 29. For the reasons set out above — the shifting and irreconcilable characterisation of the reason for dismissal; the want of proof, independently of that shifting character, of any valid reason; and the want of a fair procedure, 35

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Elrc Appeal No. E023 Of 2024 evidenced by a show cause letter that could not have been served as the document itself records, and disciplinary minutes that could not reflect genuine attendance given the respondent’s undisputed custody — I find that the respondent’s summary dismissal was both substantively and procedurally unfair. The trial court’s finding to that effect was without error, and Ground 1 of the appeal fails. The Reliefs: Grounds 2, 3 and 4 30. I turn to the reliefs, bearing in mind that a finding of unfair termination does not automatically validate every relief a trial court may have granted; each head must be separately justified on the evidence and the law. (i) Salary in Lieu of Notice 31. The appellant’s reliance on Vincent Abuya Obunga v Mast Rental Services Limited [2019] KEELRC 2382 (KLR) and Naftal Priva Kitatu v Jitegemee Sacco Society Limited [2021] KEELRC 1591 (KLR) for the proposition that an employee summarily dismissed is not entitled to notice pay 36

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Elrc Appeal No. E023 Of 2024 is correct as far as it goes, but it goes only so far as the summary dismissal itself was lawfully effected. Both authorities concerned dismissals whose validity was not in issue, or was upheld; they cannot avail an employer whose purported summary dismissal has been found, as this one has, to rest on no valid reason and to have been procedurally unfair. Where the very foundation for dispensing with notice — a proven case of gross misconduct under section 44 of the Employment Act, 2007 — has not been established, the employer cannot simultaneously retain the benefit of summary dismissal’s exemption from the ordinary requirement of notice. I therefore uphold, and decline to disturb, the trial court’s award of one month’s salary in lieu of notice, Kshs. 16,144/=. (ii) Compensation for Unfair Termination 32. The trial court awarded the respondent twelve months’ salary, Kshs. 193,728/=, as compensation under section 49(1)(c) of the Employment Act, 2007, this being the statutory maximum. Section 49(4) of the Act requires a 37

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Elrc Appeal No. E023 Of 2024 court, in fixing compensation within that ceiling, to have regard to a range of factors including, among others, the employee’s length of service, the manner of the termination, the extent to which the employee contributed to the termination, and the practicability of reinstatement. Twelve months, being the maximum the statute permits, is properly reserved for the clearest and most egregious cases — dismissals marked by bad faith, by a complete absence of any process, or by particularly reprehensible conduct on the employer’s part — and ought not, as a matter of principle, to be awarded as a matter of course merely because a termination is found to be unfair. I have already found the appellant’s conduct of this matter to fall well short of what fair labour practice demands; but I am not persuaded, on this record, that it crosses the threshold the respondent invites me to find, still less that it amounts, as the respondent’s submissions characterise it, to “malicious prosecution”, a cause of action neither pleaded nor proved in these proceedings and one 38 this Court, sitting in its

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Elrc Appeal No. E023 Of 2024 employment jurisdiction, is not the proper forum to adjudicate. I have had regard, in this respect, to the respondent’s comparatively modest length of service — some two years and eight months by the time of his dismissal — to the fact that, while ultimately acquitted, he was not a stranger to the events giving rise to his arrest, having been on duty in the vicinity when the theft occurred, and to the comparator authorities the appellant has cited, in each of which this Court’s sister courts, faced with findings of unfair dismissal after periods of service of a broadly comparable below the order, awarded statutory compensation maximum. substantially Weighing these considerations against the seriousness of the procedural and substantive failings I have found, I consider that an award of twelve months’ compensation was, in the circumstances of this case, excessive, and that a fair and proportionate award is six months’ gross pay. I accordingly set aside the trial court’s award of twelve (12) months’ compensation, Kshs. 39

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Elrc Appeal No. E023 Of 2024 193,728/=, and substitute therefor an award of six (6) months’ gross pay, Kshs. 96,864/=. (iii) Overtime 33. On overtime, I am in respectful but firm disagreement with the trial court. The claim as pleaded and as computed — Kshs. 225,280/=, arrived at by an undifferentiated formula applying a notional daily overtime rate across twenty-six days for thirty-two months — was not, at any stage, particularised by reference to the specific dates on which overtime was worked, the specific hours worked on each such date, or any contemporaneous record, such as a clockin register or duty roster, capable of substantiating those particulars. In Nandi v Super Bargains Glass & Hardware Nakuru Hardware Limited (Formerly Amattullah Glass & Hardware Limited) [2024] KEELRC 840 (KLR), this Court had occasion to emphasise that a claim for overtime, like any claim for special damages, must be specifically pleaded and strictly proved; a bare assertion of a number of hours worked, without particulars capable of being tested, will not 40

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Elrc Appeal No. E023 Of 2024 suffice. I respectfully adopt and apply that principle here. This claim, in the form in which it was presented, was, in truth, simply thrown at the court, in the hope that a plausible-looking arithmetic formula would substitute for the hard evidentiary work of pleading and proving actual hours worked on actual dates. I intend to be unambiguous on this point, for it is a practice this Court sees with troubling frequency and must firmly discourage: it is not open to a litigant to present this Court with a bare formula and a resulting figure, and to expect the court to treat the arithmetic as a substitute for evidence. A claim of this kind, unsupported by particulars capable of being tested and unsupported by any contemporaneous record of hours actually worked, cannot found an award. I accordingly set aside the trial court’s award of Kshs. 225,280/= for overtime in its entirety. (iv) Salary for Eighteen Days Worked in October 2018 34. I reach a different conclusion on the award of Kshs. 11,178/= for the eighteen days the respondent worked in October 41

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Elrc Appeal No. E023 Of 2024 2018 prior to his arrest. The appellant’s answer to this head of claim rests entirely on a payslip purporting to show that the respondent’s full October 2018 salary was paid. I do not consider a payslip, standing alone, sufficient proof of actual payment, particularly where, as here, the fact and receipt of payment are squarely disputed. A payslip is, at bottom, a unilateral internal record generated by the paying party; it records what an employer says it paid, not what an employee in fact received. That the payslips relied upon in this matter bear a print date of 29th November 2021 — some three years after the events they purport to record, and shortly after this suit was filed — only reinforces the point: they are not contemporaneous records of disbursement but retrospective printouts generated from a payroll database for the purposes of this litigation. Nothing would have been easier, nor more probative, than for the appellant to place before the trial court documentary evidence of the actual transmission of funds — a bank transfer advice, an M-Pesa statement, a signed payment 42

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Elrc Appeal No. E023 Of 2024 voucher, or a cheque and its corresponding bank record — capable of establishing that the sum the payslip records as due was, in fact, paid to and received by the respondent. It did none of this. Where an employer elects to rely on its own internal payroll printout, generated after the fact and for the purposes of litigation, as its sole answer to a specific and disputed claim for unpaid wages, and declines to produce the more cogent and more readily available evidence of actual disbursement that lies uniquely within its own control, it cannot complain if the court declines to treat that printout as discharging its burden. I uphold, and decline to disturb, the trial court’s award of Kshs. 11,178/= under this head. (v) Leave 35. This head requires closer attention, because the record on it is genuinely instructive. The respondent’s pleaded and testified position was that he never proceeded on leave at all. Against that bare denial, the appellant placed before the trial court three leave application forms — for periods in October 2016, June and July 2017, and July 2018 — each 43

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Elrc Appeal No. E023 Of 2024 bearing the respondent’s employee number, dates of application and of leave, and the signatures of a reliever, a supervisor and, in two instances, the functional head. These forms were put to the respondent in cross-examination. His answer was a bare denial: “The leave application is not true. I applied for leave but was declined. I have no application form before Court.” That answer, it will be noted, is itself a shifting one — a denial that any leave form existed, immediately followed by an assertion that he had in fact applied for leave, only to be declined — and in any event it was not accompanied by any evidence capable of demonstrating that the signatures or particulars on the forms were forged or otherwise unreliable, whether by way of a handwriting comparison, a challenge to the specific supervisors who purportedly signed them, or otherwise. The forms were not discounted, impeached, or otherwise successfully challenged during the cross-examination of the appellant’s witness or at any other stage of the trial. On a balance of probabilities, and in the face of documentary 44

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Elrc Appeal No. E023 Of 2024 evidence of this kind, a bare and internally inconsistent denial by the party against whom the documents are produced is not sufficient to displace them. I find that the respondent did in fact proceed on leave in the years in question, contrary to his blanket denial, and that the trial court’s award of Kshs. 32,288/= for “unpaid leave for two years”, premised as it must have been on an acceptance of that blanket denial, cannot stand. I accordingly set aside that award. I note, however, that the respondent’s final payslip for November 2018 records a “Leave Encash[ment]” entry of Kshs. 2,650/=, and that the appellant, in its written submissions on this appeal, expressly admits that this specific sum remains owing to the respondent. I therefore substitute, in place of the sum set aside, an award of Kshs. 2,650/= in respect of leave, being the sum the appellant itself concedes is due. (vi) Underpayment 36. The award of Kshs. 23,975/= for underpayment, computed by the trial court against the applicable Minimum Wage 45

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Elrc Appeal No. E023 Of 2024 Order, was challenged in Ground 4 of the appeal, but the appellant’s submissions advance no particulars of any error in that computation beyond the general assertion that the payslips on record show that the respondent “received a basic salary and house allowance as stated in his pay slips.” That assertion does not engage with, still less demonstrate any flaw in, the trial court’s comparison of the wages actually paid against the wages the Minimum Wage Order for 2018 required to be paid. No basis having been shown for this Court to interfere, I decline to disturb the trial court’s award of Kshs. 23,975/= for underpayment. (vii) Gratuity and Certificate of Service 37. The trial court declined to award gratuity, correctly, that relief not having been provided for in the respondent’s contract of employment, and this finding has not been challenged on appeal. The order for the issuance of a certificate of service likewise stands undisturbed. F. DISPOSITION 46

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Elrc Appeal No. E023 Of 2024 38. For the reasons set out above, I find that this appeal succeeds in part. The trial court’s finding that the respondent’s summary dismissal was substantively and procedurally unfair is upheld, as is its award of notice pay, its award for the eighteen days worked in October 2018, its award for underpayment, its declining to award gratuity, and its order for a certificate of service. The award of twelve months’ compensation is reduced, the award for overtime is set aside, and the award for unpaid leave is set aside and replaced with the sum the appellant itself admits owing. 39. I accordingly make the following orders: (a) The appeal succeeds in part. (b) The finding of the trial court that the respondent’s summary dismissal was substantively and procedurally unfair and unlawful is upheld. (c) The award of one month’s salary in lieu of notice, Kshs. 16,144/=, is upheld. 47

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Elrc Appeal No. E023 Of 2024 (d) The award of twelve (12) months’ compensation for unfair termination, Kshs. 193,728/=, is set aside and substituted with an award of six (6) months’ gross pay, Kshs. 96,864/=. (e) The award of Kshs. 225,280/= for overtime is set aside in its entirety. (f) The award of Kshs. 11,178/= for the eighteen days worked in October 2018 is upheld. (g) The award of Kshs. 32,288/= for unpaid leave is set aside, and there is substituted therefor an award of Kshs. 2,650/=, being the sum the appellant admits is owing. (h) The award of Kshs. 23,975/= for underpayment is upheld. (i) The order for the issuance of a certificate of service is upheld. (j) Each party shall bear its own costs of this appeal. 40. It is so ordered. 48

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Elrc Appeal No. E023 Of 2024 DATED, SIGNED AND DELIVERED AT MALINDI THIS 21 ST DAY OF SEPTEMBER 2026. …………………………………………… OCHARO KEBIRA JUDGE 49

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