Julius Garama Kitsao v Mnarani Club

ELRC Appeal No. E028 of 2025 — Judgment Garama Kitsao, against his former employer, the Respondent, Mnarani Club, operated by AVC Management Company Limited. 2. The suit before the trial court was commenced by a Memorandum of Claim dated 5th July 2023 and filed on 14th September 2023, originally at the Principal Magistrate's Court, Kaloleni, as Employment Cause No. E034 of 2023, and later transferred, pursuant to the directions of the High Court, to the Chief Magistrate's Court at Kilifi, where it was re-registered as ELRC Cause No. E5B of 2024. The Appellant sought a declaration that his termination from employment was unfair, and orders for payment of three months' salary in lieu of notice, nineteen years' gratuity under the parties' Collective Bargaining Agreement ("the CBA"), twelve months' salary as compensation for unfair termination, and payment for accrued but untaken leave, together with costs and interest. B. BACKGROUND 2

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ELRC Appeal No. E028 of 2025 — Judgment 3. The Appellant was employed by the Respondent with effect from on or about 13th/22nd April 2004, initially as a shamba attendant, and rose through the ranks to serve as a swimming pool attendant, before being transferred, with effect from 6th October 2022, to the kitchen department as a Kitchen Steward. At the time material to this dispute he had served the Respondent continuously for approximately nineteen (19) years, earning a monthly gross salary of Kshs. 41,755/-. 4. It is common ground that on 23rd December 2022, while riding home on a motorcycle after completing his shift, the Appellant was involved in a road traffic accident near Pwani University, in which he sustained an injury to his left thumb. It is equally not in dispute that, on that same day, the Appellant proceeded to Kilifi County Hospital, and also returned to his place of work, where he informed the Resort Manager, Mr. Henk Venter, of the accident. The Resort Manager directed him to the accounts department, where he was advanced funds to purchase a thumb splint, and instructed him to bring back the offduty note once issued by the treating doctors. The 3

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ELRC Appeal No. E028 of 2025 — Judgment Appellant thereafter returned to hospital, where he was attended to at the Orthopaedic Trauma Department and issued with a certificate booking him off duty for two weeks with effect from 23rd December 2022, on account of a diagnosed "severe soft tissue injury" to the left thumb. 5. The Appellant did not report for his subsequent shifts on 24th and 25th December 2022. Between 26th and 28th December 2022, the Respondent's Resort Manager made repeated telephone calls and sent SMS messages to the Appellant's known contact number, none of which elicited a response; Appellant's the Resort next-of-kin to Manager be also caused contacted. On the 28th December 2022, at about 2.00 p.m., the Appellant presented himself at the Respondent's premises and handed in the medical off-duty note dated 23rd December 2022. He was, on the same date, served with a show cause letter setting out three allegations, namely: (i) absence without permission for four to six days without feedback after collecting a sick sheet on 23rd December 2022, in the absence of a sick note from a 4

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ELRC Appeal No. E028 of 2025 — Judgment medical facility; (ii) neglect to inform his supervisor in good time of his absence; and (iii) intentional or negligent disregard of service regulations. 6. The Appellant tendered a written explanation dated 31st December 2022, in which he narrated the sequence of events set out above, and further explained that he had entrusted the medical off-duty note to his son for delivery to the Respondent, but that his son failed to do so, having instead proceeded to Mtwapa; he stated that upon his son's return on 28th December 2022, he personally took the note to the Respondent's offices. He concluded the letter: "Sir, I am sorry for the lateness in hand[ing] over the document in time. This is all I can state." 7. A disciplinary hearing was thereafter convened, at which the Appellant was represented by Mr. Kennedy Obinjo, the Union Shop Steward, and Mr. Omar Tunza, the Restaurant Workers' Representative. The record of the hearing reflects that the Appellant confirmed, in answer to standard procedural questions, that he had been informed of the charges in writing, given reasonable notice to prepare, informed of his rights, and advised of 5

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ELRC Appeal No. E028 of 2025 — Judgment the date, time and venue of the hearing, and that an interpreter was availed; he is recorded as having pleaded guilty to all three charges. He is further recorded as having stated that he was aware of the procedure that "if one takes a sick sheet, one go[es] to the doctor and if [one is] booked off sick, [one] inform[s] the work by returning the sick sheet the same day," but that he did not do so because he was in pain and proceeded directly home. 8. By a letter dated 3rd January 2023 headed "Termination of services by Summary Dismissal," the Respondent recited the Appellant's disciplinary record, comprising a first warning dated 25th September 2021, a second warning dated 15th November 2021, a third warning dated 8th March 2022, a fourth and final warning dated 7th July 2022, and a further final warning dated 6th October 2022 — the last of which expressly stated that any further disciplinary matter concerning the Appellant's work performance or timekeeping would result in "AUTOMATIC TERMINATION," with "no pardon." On the strength of that record and the findings of the disciplinary 6

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ELRC Appeal No. E028 of 2025 — Judgment hearing, the Respondent terminated the Appellant's employment. 9. The Respondent filed a Response to Claim and a witness statement of Mr. Hendrick Venter, denying that the termination was unfair, and asserting that the Appellant had absconded duty between 23rd and 28th December 2022, had failed to avail the requisite medical documentation as required under the CBA and section 30 of the Employment Act, and had, after termination, declined to attend for clearance of his final dues. 10. At the hearing before the trial court, and specifically on 10th June 2025, counsel for the Appellant indicated that her client was indisposed and sought to proceed by way of Rule 59 of the Employment and Labour Relations Court (Procedure) Rules, 2024, on the basis of the documents already on record. This was initially objected to by counsel then holding brief for the Respondent, but on 2nd July 2025 both counsel confirmed their agreement to proceed on that basis. The matter thereafter proceeded to the filing of submissions and judgment, without oral evidence being taken from either party. 7

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ELRC Appeal No. E028 of 2025 — Judgment C. THE IMPUGNED JUDGMENT 11. In its judgment delivered on 28th October 2025, the trial court found that the Appellant had absented himself from duty between 23rd and 28th December 2022, that he had been accorded a fair hearing, and that his termination was fair. The court dismissed the claims for twelve months' compensation and three months' notice pay. It further declined the claim for gratuity/service pay, reasoning that the same was not payable under sections 35 and 36 of the Employment Act in circumstances where the Appellant's NSSF contributions had been remitted throughout his employment. Finally, the court rejected the claim for accrued but untaken leave, on the ground that it lacked specificity as to the years to which it related, noting that the Respondent had produced numerous leave application forms evidencing that the Appellant had regularly taken his leave. The suit was consequently dismissed in its entirety, with costs to the Respondent. D. THE APPEAL 8

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ELRC Appeal No. E028 of 2025 — Judgment 12. Aggrieved, the Appellant lodged a Memorandum of Appeal dated 6th November 2025, raising three grounds, namely, that the learned trial magistrate erred in law and in fact: (i) in entering judgment for the Respondent against the Appellant; (ii) in finding that the Appellant was not unfairly terminated despite the evidence on record; and (iii) in failing to appreciate or consider the pleadings and documentary evidence, thereby arriving at a wrong conclusion, particularly with regard to the prayers for gratuity, notice pay and leave pay. E. SUBMISSIONS (i) The Appellant's Submissions 13. Learned counsel for the Appellant submitted that, this being a first appeal, the court is under a duty to reevaluate the evidence on record and arrive at its own independent conclusions, relying on Rose Nafula Wanyama v Nusra Nasambu Chibanga & Another [2020] eKLR. It was submitted that none of the three grounds relied upon in the show cause letter were established: that as at 23rd December 2022 the Respondent was 9

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ELRC Appeal No. E028 of 2025 — Judgment already aware that the Appellant was unwell following the accident; that clause 14 of the CBA, requiring notification of illness within 48 hours, was fully complied with; and that the Appellant's letter of 31st December 2022 offered a plausible and unrebutted explanation for the short delay in physically delivering the medical note. It was further submitted that the Appellant, having served the Respondent for nineteen years, was entitled under clause 9(c) of the CBA to four months' pay in lieu of notice and, under clause 27(b)(ii), to gratuity in the sum of Kshs. 396,667/-; that the compensation claim under section 49(1)(c) of the Employment Act was justified having regard to the factors in section 49(4); and that the Appellant was entitled to payment for leave reflected at page 83 of the record. (ii) The Respondent's Submissions 14. Learned counsel for the Respondent supported the judgment of the trial court in its entirety, submitting that the Appellant had absconded duty from 23rd to 28th December 2022, had ignored repeated telephone calls and SMS messages, and was, prior to that incident, 10

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ELRC Appeal No. E028 of 2025 — Judgment already the subject of several prior warning letters. It was submitted that the Appellant was accorded a full and fair disciplinary hearing, at which he was represented and pleaded guilty to the charges, and that the termination was, in the circumstances, both substantively and procedurally fair. It was further submitted that the Appellant was not entitled to leave pay, as the leave forms on record demonstrated that he regularly proceeded on, and exhausted, his leave. F. A PRELIMINARY OBSERVATION ON THE PROCEDURE ADOPTED BELOW 15. Before turning to the merits, this court considers it necessary to comment on the manner in which the trial was conducted. It is trite, and indeed salutary, that the overriding objective embedded in the practice and procedure of this court permits considerable flexibility in case management, including, where appropriate, the admission of documents and further documentary material at various stages of a proceeding, so as to facilitate the just, affordable resolution expeditious, of 11 proportionate employment disputes. and That

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ELRC Appeal No. E028 of 2025 — Judgment flexibility, however, is not boundless, and its exercise must always be calibrated to the nature of the dispute at hand. 16. Rule 59 of the Employment and Labour Relations Court (Procedure) Rules, 2024, which permits parties to consent to disposal of a matter on the basis of the pleadings, witness statements and documents filed, without oral evidence, is a valuable case management tool in disputes where the primary contest is one of law, or of the proper characterisation of essentially undisputed facts. It is, with respect, a mechanism ill-suited to a dispute — such as the present one — whose outcome turns substantially on findings of fact that are heavily and genuinely contested: whether the Appellant's explanation for the delay in delivering the medical note was truthful; what inference properly arises from his silence to calls and messages over a period of injury and incapacitation; and whether an ambiguous, arguably innocuous, closing remark in a letter of explanation amounts to an admission of guilt. Such questions ordinarily call for viva voce evidence, tested by cross-examination, so that the trial court may 12

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ELRC Appeal No. E028 of 2025 — Judgment assess demeanour and credibility before making the findings of fact upon which the ultimate characterisation of the Appellant's conduct — whether as absconding, gross misconduct, or a lesser infraction — must rest. In the considered view of this court, resort to a documentsonly disposal in a matter of this character was not the most appropriate procedural course, and it is only where the material facts are truly not in serious contest that Rule 59 ought ordinarily to be invoked. 17. That said, it is equally significant that both parties, through their respective counsel, freely and without reservation consented to this mode of disposal on 2nd July 2025, and that neither party has, in this appeal, raised the propriety of that procedure as a distinct ground of complaint. In those circumstances, this court will not disturb the proceedings on that account alone, but will, in the exercise of its duty as a first appellate court, proceed to re-evaluate the record as constituted, mindful of the limitations inherent in a documents-only trial, and will draw only such inferences documentary record safely and fairly supports. 13 as the

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ELRC Appeal No. E028 of 2025 — Judgment G. ISSUES FOR DETERMINATION 18. Arising from the grounds of appeal and the rival submissions, the issues falling for determination are: (a) Whether the Appellant's termination from termination from employment was substantively fair; (b) Whether the Appellant's employment was procedurally fair; (c) What reliefs, if any, the Appellant is entitled to. H. ANALYSIS AND DETERMINATION (i) Substantive fairness — the undisputed factual foundation 19. It bears restating, at the outset, what is not in dispute on this record. It is common ground that the Appellant suffered a road traffic accident on 23rd December 2022; that he sustained an injury requiring medical attention; that on that very day he returned to his place of work and personally informed the Resort Manager of the accident; that the Resort Manager himself directed him to the accounts office for financial assistance and instructed him 14

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ELRC Appeal No. E028 of 2025 — Judgment to bring the medical off-duty note once issued; and that the Respondent's own documents — including the sick-off sheet from Kilifi County Hospital, which the Respondent itself annexed to its list of documents — confirm the fact, cause and duration of the Appellant's incapacitation. It cannot, on this record, be seriously argued that the Appellant was away from duty without the Respondent's knowledge. The Respondent knew, from the very first day, why the Appellant was not reporting for his shifts. (ii) Whether the Appellant's conduct amounted to absconding 20. The first and gravest of the three charges levelled against the Appellant was that of absconding duty. It is necessary to be clear about what that term connotes, for it is not a synonym for mere absence, nor for lateness in communication. To abscond means to depart secretly, suddenly or without authority, typically with the intention of avoiding one's obligations, evading a person or authority, or abandoning one's post or responsibilities altogether. Applied to the employment context, absconding imports an element of concealment or 15

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ELRC Appeal No. E028 of 2025 — Judgment desertion — an employee who vanishes, conceals his whereabouts, and manifests an intention not to return — as distinct from an employee whose whereabouts and reasons for absence are, from the outset, known to the employer, even if his subsequent communication falls short of what is expected of him. 21. On the facts of this case, the Appellant did not vanish. He presented himself at his workplace on the very day the alleged "absconding" is said to have commenced, disclosed the cause of his absence, and sought and received practical assistance from his employer for treatment of the very injury that occasioned that absence. There is no suggestion, still less any finding capable of being sustained on this record, that the Appellant intended to abandon his employment or to sever his relationship with the Respondent; indeed, his eventual return, his tender of the medical note, and his written explanation are all consistent with an employee who, notwithstanding his lapses, had every intention of resuming his duties. Section 44(4)(a) of the Employment Act, 2007, which lists "absence from work without leave 16

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ELRC Appeal No. E028 of 2025 — Judgment or other lawful cause" among the grounds capable of founding a summary dismissal, is, on its own terms, inapplicable, for there plainly was lawful cause for the Appellant's absence — a road traffic accident and consequent injury — known to the Respondent from the outset. On no fair reading of the record can the charge of absconding be said to have been established. (iii) Compliance with clause 14 of the CBA and section 30 of the Employment Act 22. Clause 14 of the CBA, headed "Sick Leave," entitles an employee of the Appellant's length of service to a maximum of 75 days' sick leave on full pay, subject, by proviso (i), to the requirement that "it shall be incumbent upon the employee to notify the employer within 48 hours that he has fallen ill." On the facts, the Appellant notified his employer of his illness and injury on the same day it occurred — well within, indeed immediately upon, the 48-hour window contemplated by the clause. He cannot, therefore, be said to have been in breach of clause 14. 17

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ELRC Appeal No. E028 of 2025 — Judgment 23. The Respondent's reliance on section 30 of the Employment Act, which requires an employee to notify his employer "as soon as is reasonably practicable" of his absence and the reason for it, is, with respect, similarly misplaced. The Appellant notified his employer, in person, on the very day of the accident — before he had even completed the day's medical consultations. It is difficult to conceive what more prompt notification could reasonably have been expected of him. Section 30 cannot, in these circumstances, found a conclusion that the Appellant failed to report his situation within a reasonable time, nor can it be pressed into service to sustain a finding of absconding. (iv) The delay in delivering the medical note, and the letter of 31st December 2022 24. The second limb of the charge concerned the delay of some five days — from 23rd to 28th December 2022 — in the physical delivery of the medical off-duty note to the Respondent. This court has considered the record carefully and finds no document establishing that the CBA, the contract of employment, 18 or any other

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ELRC Appeal No. E028 of 2025 — Judgment instrument binding the parties prescribed a specific period within which such documentation was required to be physically presented, breach of which would itself constitute a disciplinable offence. In the absence of such a stipulated period, and having regard to the nature of the Appellant's injury — to his hand — and his unchallenged account that he entrusted the note to his son for delivery, only for his son to fail to do so, a delay of five days does not, in the estimation of this court, fall outside the bounds of what is reasonable in the circumstances. The Appellant offered a plausible and coherent explanation for the delay, and that explanation was not displaced by any contrary evidence on the record. 25. Considerable reliance was placed by the trial court on the concluding words of the Appellant's letter of 31st December 2022 — "Sir, I am sorry for the lateness in hand[ing] over the document in time" — as an admission. This court, with respect, does not read that sentence as the trial court did. An apology for the lateness of a document's delivery is, 19 at its highest, an

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ELRC Appeal No. E028 of 2025 — Judgment acknowledgment of that narrow and discrete fact; it is not, without more, a concession that the Appellant absconded duty, that he wilfully disregarded service regulations, or that he committed the gross misconduct with which he was charged. To construe a courteous and contrite closing remark as a blanket admission of guilt on every charge levelled against him would be to give the words a meaning they cannot fairly bear, and would, in substance, relieve the Respondent of its burden to establish each element of the charges independently. The same observation applies, with equal force, to the plea of "guilty" recorded at the internal disciplinary hearing: an employee's characterisation of his own conduct before an internal domestic tribunal, comprised of his employer and its nominees, cannot bind a court subsequently called upon to determine, as a matter of law, whether the facts as admitted meet the threshold of the offence charged. That characterisation remains, at all times, a matter for independent judicial determination. (v) Failure to answer calls and respond to messages — the true nature of the infraction 20

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ELRC Appeal No. E028 of 2025 — Judgment 26. What does emerge from this record, and what the Appellant does not seriously dispute, is that between 26th and 28th December 2022 he neither answered the Respondent's telephone calls nor responded to its SMS messages, notwithstanding that these were made to the very number recorded in his staff file. This is the one respect in which the Appellant's conduct fell demonstrably short of what a reasonable employee, aware that his employer was anxiously seeking to establish his whereabouts, ought to have done. 27. The question that then arises is whether this infraction — considered against the backdrop of an already-disclosed accident and injury, and an employee who was, on his own account, at home recuperating — was of such gravity as to warrant the ultimate sanction of summary dismissal, or whether it warranted a lesser sanction. Summary dismissal is the most severe sanction available to an employer; it deprives an employee, often after years of service, of notice, of notice pay, and of the dignity of an ordinary exit from employment. It is for that reason that courts have consistently held that it is 21

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ELRC Appeal No. E028 of 2025 — Judgment reserved for conduct so serious as to be destructive of the trust and confidence that must subsist between employer and employee — conduct properly characterised as gross misconduct — and is not to be visited upon conduct which, while blameworthy, falls short of that threshold. 28. A failure, over a matter of days, to answer calls or respond to messages while nursing a hand injury and recuperating at home — in circumstances where the fact and general cause of the absence were already known to the employer — cannot, in the assessment of this court, be equated with the kind of wilful, deliberate defiance or fundamental breach of trust that the law reserves for summary dismissal. It is, at most, a failure of communication and consideration towards an anxious employer, and amounts to misconduct properly sanctioned by ordinary termination of employment, on notice or on payment of salary in lieu 22

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ELRC Appeal No. E028 of 2025 — Judgment thereof, rather than by summary dismissal without notice or benefits. 29. It is instructive, in this regard, that the CBA itself draws precisely this distinction. Clause 8(a)(iv) provides that where an employee with three recorded warnings commits a further offence within seven and a half months of the third warning, the employer is entitled to summarily dismiss the employee only where he has served for less than ten years; where, as here, the employee has ten or more years of service, the same clause entitles the employer only to terminate his services — not to dismiss him summarily. Notwithstanding that the Appellant had, by December 2022, accumulated a fifth recorded warning, including an explicit "no pardon" final warning issued on 6th October 2022, the graduated disciplinary matrix agreed between the Union and the Association does not, on a fair reading, displace this basic distinction between employees of under ten years' service and those, like the Appellant, of ten years' service or more: the former may be summarily dismissed on a qualifying repeat offence; the latter may 23

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ELRC Appeal No. E028 of 2025 — Judgment only be terminated. The Respondent's own termination letter of 3rd January 2023 expressly invokes this very provision, notwithstanding that its heading describes the exit as a "Summary Dismissal." On the Respondent's own contractual framework, therefore, the Appellant — a nineteen-year employee — was, at most, liable to have his services terminated on notice, not summarily dismissed. The label affixed to the letter cannot alter the substance of what the parties' own CBA prescribed. (vi) Conclusion on substantive fairness 30. For the foregoing reasons, this court finds that the charges of absconding duty and of neglecting to inform the supervisor of illness within a reasonable time were not established on the record, and that the residual infraction that was established — the Appellant's failure to answer calls and respond to messages over several days — did not amount to gross misconduct capable of sustaining summary dismissal. It follows that the trial court erred in upholding the summary dismissal of the Appellant as fair. The sanction of summary dismissal is hereby set aside and is commuted to a finding that the 24

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ELRC Appeal No. E028 of 2025 — Judgment Appellant's employment was, on account of the established infraction, liable to ordinary termination on notice. (vii) Procedural fairness 31. Turning to the question of process, section 41 of the Employment Act requires that, before terminating an employee's services on grounds of misconduct, an employer must explain to the employee, in a language he understands, the reasons for which the employer is considering termination, and must hear and consider any representations the employee may make, in the presence of a fellow employee or shop floor union representative of his choice. The ingredients of a fair hearing in this context have been set out in Nyandiko v Kenya Commercial Bank Ltd [2017] KECA 798 (KLR), namely, that the employee be notified of the charge, be informed of the reason for the notice, be heard and his representations considered, and be afforded the right to have a colleague or union representative present. 32. On this record, the Appellant was served with a written show cause letter setting out the three charges against 25

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ELRC Appeal No. E028 of 2025 — Judgment him; he was afforded the opportunity to, and did, submit a written explanation; he was thereafter subjected to a disciplinary hearing at which he was represented by not one but two representatives — the Union Shop Steward and the Restaurant Workers' Representative; and the record of that hearing confirms, without contradiction, that he was informed of the charges in writing, given reasonable notice to prepare his defence, informed of his rights, and advised of the date, time and venue of the hearing, with an interpreter availed. The verdict was communicated to him in writing, together with an explanation of his right of appeal. In these circumstances, this court is satisfied that the process leading to the Appellant's dismissal met the requirements of section 41 of the Employment Act and satisfied the ingredients of a fair hearing. The trial court's finding on procedural fairness is accordingly upheld. I. RELIEFS (i) Notice pay 26

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ELRC Appeal No. E028 of 2025 — Judgment 33. Having found that the Appellant's summary dismissal was substantively unfair, and that no notice or pay in lieu of notice was extended to him, it follows that he is entitled to payment in lieu of notice. Clause 9(c) of the CBA entitles an employee with ten or more years of continuous service to four months' notice or pay in lieu thereof; however, the Appellant's Memorandum of Claim, as filed and never amended, sought and prayed for only three months' salary in lieu of notice, in the sum of Kshs. 125,265/-. A court cannot grant relief beyond that which is pleaded and prayed for. The Appellant is accordingly awarded three months' salary in lieu of notice in the sum of Kshs. 125,265/-. (ii) Gratuity 34. The trial court declined the claim for gratuity on the footing that it was not payable under sections 35 and 36 of the Employment Act, given that the Appellant's NSSF contributions had been remitted throughout his service. With respect, this conflates two distinct entitlements. Service pay under section 35 of the Employment Act is a statutory benefit payable to an employee on termination, 27

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ELRC Appeal No. E028 of 2025 — Judgment from which an employer is excused where the employee is, at the date of termination, a member of a registered pension or provident fund scheme under the National Social Security Fund Act or any other scheme established by the parties. Gratuity payable under clause 27(b) of the CBA, by contrast, is a contractual entitlement, negotiated and agreed between the Union and the Association, payable by virtue of the parties' collective bargain and not by virtue of statute. Membership of an NSSF or similar scheme does not extinguish a contractual gratuity entitlement freely negotiated under a CBA, and section 26(2) of the Employment Act expressly preserves terms and conditions agreed under a collective agreement that are more favourable to an employee than the statutory minimum. The trial court's finding that the gratuity claim was barred by sections 35 and 36 of the Employment Act was, with respect, made in error, and is hereby set aside. Applying clause 27(b)(ii) of the CBA to the Appellant's nineteen years of continuous service, and there being no serious challenge to the 28 quantum pleaded and

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ELRC Appeal No. E028 of 2025 — Judgment consistently maintained by the Appellant, the sum of Kshs. 396,667/- is awarded as gratuity. (iii) Leave pay 35. The claim for accrued and untaken leave was rejected by the trial court for lack of specificity, and this court finds no basis to disturb that finding. The leave application forms exhibited by the Respondent — which stand unchallenged on the record — demonstrate a consistent pattern of the Appellant proceeding on and exhausting his annual leave entitlement year on year, with only modest balances carried forward and duly accounted for. The figure belatedly advanced on appeal, describing the total leave days "available" on one such form as though it represented an outstanding, unpaid entitlement, is not a fair reading of that document. The claim for leave pay was properly declined, and that finding of the trial court is upheld. (iv) Compensation under section 49(1)(c) of the Employment Act 29

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ELRC Appeal No. E028 of 2025 — Judgment 36. Finally, the court has considered whether, in addition to notice pay and gratuity, the Appellant ought to be awarded compensation under section 49(1)(c) of the Employment Act, which empowers the court, in its discretion, to award compensation not exceeding twelve months' salary where a termination is found to be unjustified, having regard to the factors enumerated in section 49(4). That discretion must be exercised judiciously, and not as a matter of course upon every finding of unfair termination. 37. In this case, the unfairness found by this court is narrow in compass: it lies not in a conclusion that the Appellant's conduct warranted no sanction at all, but in the Respondent's imposition of a sanction — summary dismissal — disproportionate to the infraction actually established. The Appellant has, by the awards of notice pay and gratuity made above, been restored to substantially the position he would have occupied had the Respondent lawfully terminated his services on notice, as the CBA itself contemplated for an employee of his standing. To additionally award compensation under 30

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ELRC Appeal No. E028 of 2025 — Judgment section 49(1)(c) — a remedy designed to cushion an employee against the injury of a wholly unjustified or capricious termination — would, in the circumstances of this case, over-compensate the Appellant for a state of affairs to which his own admitted conduct, in failing to answer calls and respond to messages from an anxious employer over several days, materially contributed. Having regard to that contributory circumstance, and to the fact that some sanction was, on the court's findings, justified, this court declines, in the exercise of its discretion under section 49(4), to make an award of compensation under section 49(1)(c) of the Employment Act. J. DISPOSITION 38. For the reasons set out above, this court makes the following orders: (a) The appeal is allowed. (b) The judgment of the trial court dated 28th October 2025, dismissing the Appellant's claim in its entirety, is set aside. 31

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ELRC Appeal No. E028 of 2025 — Judgment (c) It is hereby declared that the summary dismissal of the Appellant was substantively unfair, and the same is commuted to a lawful termination of employment. (d) The Respondent shall pay the Appellant: (i) Three months' salary in lieu of notice in the sum of Kshs. 125,265/-; (ii) Gratuity in the sum of Kshs. 396,667/-; making a total sum of Kshs. 521,932/-. (e) The Appellant's claims for leave pay and for compensation under section 49(1)(c) of the Employment Act are declined and dismissed. (f) Each party shall bear its own costs, both of this appeal and of the proceedings before the trial court. Orders accordingly. Dated, signed and delivered at Malindi this 21 st day of September 2026 OCHARO KEBIRA JUDGE 32

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