Tarmal Wire Products Limited v Juma Wanje

Elrc Appeal No. E020 Of 2025 Magistrate’s Court, Kaloleni, in Employment and Labour Relations Cause No. E136 of 2024, Juma Wanje v Tarmal Wire Products Limited. By that judgment, the trial court found that the claimant before it, Juma Wanje (“the respondent”), had been unlawfully and unfairly terminated from his employment with the appellant, and entered judgment for him in the sum of Kshs. 48,000/=, comprising one month’s salary in lieu of notice and compensation for unfair termination, together with a declaration that the termination was unlawful and unfair, an order for the issuance of a certificate of service, costs of the suit and interest. 2. The appeal is brought on two grounds set out in the Memorandum of Appeal dated 16th September 2025, to which I return shortly. In substance, however, it raises a single, familiar jurisdiction: was question the in this termination Court’s employment of respondent’s the employment fair, both in substance and in procedure? That question cannot, in this case, be answered without first pausing over the manner in which the trial was conducted, 2

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Elrc Appeal No. E020 Of 2025 for the parties elected — or at any rate the record shows that they consented — to have a case turning on sharply disputed primary facts determined entirely on the papers, without the benefit of viva voce evidence or cross- examination. I address that matter first, as it colours the approach this Court has taken to the resolution of the several factual controversies that permeate this record. B. THE PROCEEDINGS BEFORE THE TRIAL COURT 3. By a Memorandum of Claim dated 13th December 2024 and filed on 14th December 2024, the respondent sued the appellant, his former employer, alleging that he had been engaged on or about 14th June 2020 as a casual helper at a monthly wage of Kshs. 8,000/=, and that on or about 3rd March 2023, and without following the due process prescribed by law, the appellant terminated his employment. He averred that he was not issued with a termination notice, was not accorded a hearing or any opportunity to be heard, and was not furnished with reasons for his termination, in breach of, among other provisions, sections 41, 43 and 45 of the Employment Act, 2007, and the principles of natural 3

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Elrc Appeal No. E020 Of 2025 justice and fair administrative action. He sought a declaration that the termination was unfair and unlawful, one month’s salary in lieu of notice (Kshs. 8,000/=), twelve months’ salary as compensation for unlawful termination (Kshs. 96,000/=), payment in lieu of leave (Kshs. 33,600/=), costs and interest. 4. The appellant entered appearance and filed its Memorandum of Response dated 14th April 2025. It admitted having engaged the respondent, but on a series of fixed-term contracts, the last of which ran from 14th February 2023 to 15th May 2023, in the position of general labourer at Mazeras, at a consolidated wage of Kshs. 9,327/=. Its case was that on or about 20th March 2023 it learnt that the respondent had not reported for duty since 11th March 2023, and accordingly caused a show cause letter to be issued to him, on the ground of abscondment, which letter it says was sent to the respondent by registered post on 20th March 2023 through his last known address in its employment records. It further pleaded that the respondent was invited to a disciplinary hearing, that he neither 4

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Elrc Appeal No. E020 Of 2025 responded to the show cause letter nor attended the hearing, and that his employment was consequently terminated. It denied that any notice or damages were owed, and pleaded further that the respondent had, during the currency of his employment, taken leave, evidenced by duly executed leave forms, such that no leave was outstanding to him. It prayed that the suit be dismissed with costs. 5. By consent of the parties, and as recorded in the respondent’s written submissions on record, the matter proceeded to determination under Rule 59 of the Employment and Labour Relations Court (Procedure) Rules, 2024, on the footing of the parties’ respective witness statements and the documents each had placed on the record, without oral evidence being led or the deponents being cross-examined. Each party thereafter filed written submissions. 6. In its judgment delivered on 5th September 2025, the trial court identified the fairness of the termination, entitlement to the reliefs sought, and costs as the issues calling for 5

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Elrc Appeal No. E020 Of 2025 determination. Applying the two-limbed test articulated in Walter Ogal Anuro v Teachers Service Commission [2013] eKLR — that a termination, to pass the fairness test, must be shown to rest on both substantive justification and procedural fairness — the trial court found, first, that the appellant had produced no evidence of the disciplinary hearing said to have been held on 10th April 2023, in particular no minutes of that hearing, and had produced no termination notice or letter at all; and, second, that the appellant’s allegation of abscondment appeared, on the record, to be an afterthought, raised only after the issuance of a demand letter by the respondent. On that basis, the trial court held that the appellant had failed to discharge its burden under sections 43 and 45(2) of the Employment Act, 2007 to establish a valid and fair reason for the termination, and had further failed to comply with section 41 of the Act by failing to prove that a disciplinary hearing had in fact been held and concluded. It accordingly found termination both substantively and procedurally unfair. 6 the

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Elrc Appeal No. E020 Of 2025 7. As to reliefs, the trial court awarded the respondent one month’s salary in lieu of notice, Kshs. 8,000/=, this being undisputed and proved by way of a payslip; declined the claim for payment in lieu of leave, holding it time-barred under section 90 of the Employment Act, 2007, the suit having been filed more than twelve months after the cessation of the alleged continuing injury; and, having regard to the factors set out in section 49(4) of the Act — including the respondent’s three years of service, his lack of contribution to the termination, and the absence of a valid reason for it — awarded five months’ compensation, Kshs. 40,000/=, under sections 49 and 50 of the Act. It further ordered the issuance of a certificate of service, awarded the respondent the costs of the suit as the successful party, and awarded interest at court rates from the date of judgment until payment in full C. THE APPEAL 8. Aggrieved, the appellant filed its Memorandum of Appeal dated 16th September 2025, together with a Record of 7

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Elrc Appeal No. E020 Of 2025 Appeal and a Supplementary Record of Appeal dated 7th November 2025, advancing two grounds, namely: “1. THAT the trial court erred in law and in fact in declaring that the claimant/Respondent was unfairly terminated in total disregard to the law, the facts, the submissions and the evidence on record. 2. THAT the trial court erred in law and misdirected herself in holding that the claimant/Respondent was entitled to one month notice pay, compensation and cost of the suit and interest in total disregard of the law and evidence on record.” It prays that the judgment of the trial court be set aside, with costs of the appeal to the appellant. 9. In its written submissions, the appellant, invoking the wellknown principle that this being a first appeal, the Court is duty bound to reconsider and re-evaluate the evidence on record and reach its own conclusions — a principle it draws from Rose Nafula Wanyama v Nusra Nasambu Chibanga & Another [2020] eKLR, itself 8 grounded in the classic

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Elrc Appeal No. E020 Of 2025 statement of the law in Selle v Associated Motor Boat Co. Ltd [1968] EA 123 — urges this Court to revisit the whole of the record. On Ground 1, it contends that the respondent absconded duty from 11th March 2023, prompting the issuance of a show cause letter on 20th March 2023 sent by registered post, and an invitation to a disciplinary hearing, and that the respondent neither responded nor attended. It further contends that the respondent’s own case, that he was terminated on 3rd March 2023, is demonstrably false, since the biometric attendance register for March 2023 shows that he was at work on that date and continued to work up to and including 11th March 2023. On that basis, it submits that the trial court erred in treating the disciplinary process as an afterthought, particularly where the demand letter said to have preceded it was never produced in evidence, and that once the appellant had, through documentary evidence, discharged its burden under section 47(5) of the Employment Act, 2007, the onus shifted to the respondent to prove unfair termination, a burden he did not discharge. On Ground 2, it submits, in consequence, that the 9

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Elrc Appeal No. E020 Of 2025 trial court erred in making any award in the respondent’s favour, the termination having been for a valid reason and following due process. 10. The respondent did not file separate written submissions on this appeal. His position, as it appears from the record and from the case and submissions he advanced before the trial court, is that his termination was effected without a valid reason, without notice, and without a hearing, in breach of sections 41, 43, 45 and 47 of the Employment Act, 2007, and that the trial court’s finding of unfair termination, and the awards consequent upon it, ought to be upheld with costs. That the respondent has not filed submissions on appeal does not, of course, relieve the appellant of its burden of demonstrating error on the part of the trial court, nor does it excuse this Court from its own duty, as a first appellate court, to re-evaluate the evidence and reach an independent conclusion. D. ISSUES FOR DETERMINATION 10

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Elrc Appeal No. E020 Of 2025 11. Having considered the record of appeal, the grounds of appeal and the submissions on record, I find that the following issues arise for determination: (a) Whether the mode of trial adopted before the trial court, namely determination under Rule 59 of the Employment and Labour Relations Court (Procedure) Rules, 2024, was appropriate to the matters in controversy between the parties, and what bearing that question has on this appeal; (b) Whether the termination of the respondent’s employment was both substantively and procedurally justified, such that it may be said to have been fair within the meaning of the Employment Act, 2007; (c) Whether the trial court erred in the reliefs it granted to the respondent; 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 11

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Elrc Appeal No. E020 Of 2025 12. It is convenient to record, at the outset, the standard by which this Court, sitting as a first appellate court, approaches the record before it. That standard is not in doubt. In Selle v Associated Motor Boat Co. Ltd [1968] EA 123, it was held that an appeal to a first appellate court is by way of retrial, and that this Court is obliged to reconsider the evidence, evaluate it itself, and draw its own conclusions, always bearing in mind that it neither saw nor heard the witnesses and should make due allowance in that respect. I have approached this appeal on that footing, conscious, as I explain immediately below, that the trial court itself neither saw nor heard the witnesses, the matter having proceeded on documents alone. On the Mode of Trial Adopted Before the Trial Court 13. Rule 59 of the Employment and Labour Relations Court (Procedure) Rules, 2024, which falls under Part X of those Rules dealing with hearings, provides that “the Court may, either by an agreement by all parties, or on its own motion, proceed to determine a suit before it on the basis of pleadings, affidavits, documents filed and submissions made 12

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Elrc Appeal No. E020 Of 2025 by the parties.” The Rule is, without question, a valuable case management tool. It exists to spare the parties and the Court the delay, expense and formality of a full viva voce hearing in matters where that formality serves no real purpose — where, for instance, the material facts are not seriously disputed, or the controversy is essentially one of the construction of documents or the application of settled legal principle to an undisputed factual matrix. Used appropriately, it advances the overriding objective of just, expeditious, proportionate and affordable resolution of disputes that animates the practice and procedure of this Court. 14. The Rule cannot, however, be appropriately resorted to in every case, and it is my considered view that the matter before the trial court was not one to which it was well suited. A careful reading of the pleadings, statements and documents on record discloses that the parties’ accounts were, on several matters central to the fairness or otherwise of the respondent’s termination, not merely different in emphasis but flatly irreconcilable. The respondent’s case is 13

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Elrc Appeal No. E020 Of 2025 that he was terminated on 3rd March 2023, summarily and without process of any kind. The appellant’s case is that no termination occurred on that date at all; that the respondent was, on the contrary, at work on and beyond that date; that he only absconded duty from 11th March 2023; and that his termination followed only after a show cause letter, an invitation to a disciplinary hearing, his failure to respond or attend, and a disciplinary process said to have culminated in a decision on 10th April 2023. These are not questions that can safely be resolved by a reading of affidavits and documents alone. They are questions that go to the very heart of the credibility of the parties and their witnesses — whether the respondent is to be believed that he was turned away on 3rd March 2023, or whether the appellant’s human resource officer is to be believed that a show cause letter was issued, a hearing convened, and a considered decision reached weeks later. Such contests of primary fact and credibility are, in the ordinary way, the proper province of viva voce evidence, tested by cross-examination, and not of a paper determination, however carefully conducted. 14

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Elrc Appeal No. E020 Of 2025 15. I make these observations not to suggest that the trial court’s judgment is for that reason alone vitiated — no party has appealed on the ground that the mode of trial was wrongly adopted, both having consented to it, and I do not intend to visit upon the parties, on this appeal, a procedural infirmity they themselves invited — but because the observation has a direct bearing on how this Court approaches the several unresolved factual disputes that the trial court’s documents-only process left it unable safely to determine by way of credibility findings. Where, as here, a court is deprived of the ordinary means of testing which of two irreconcilable accounts is to be believed, the only principled route to a just result lies in the rigorous and faithful application of the statutory burden of proof, resolving doubt not by an impression of demeanour that could not properly be formed, but by asking, on the documents actually produced, whether the party bearing the legal burden has discharged it. That, as will become apparent, is in substance the exercise the trial court in fact undertook, even if its reasoning on the point was not as elaborately 15

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Elrc Appeal No. E020 Of 2025 expressed as the significance of the case warranted. It is for that reason that, notwithstanding my reservations about the suitability of Rule 59 to a matter of this evidentiary complexity, I do not consider the trial court’s ultimate conclusion to have been arrived at by an improper route. The Twin Pillars of a Fair Termination 16. I turn to the applicable law. It is firmly settled in this jurisdiction that a termination of employment, to be fair, must satisfy two independent and cumulative requirements: substantive justification and procedural fairness. The absence of either is fatal to the fairness of the termination; the presence of one does not excuse the absence of the other. 17. Section 45 of the Employment Act, 2007 is the foundational provision. Section 45(1) provides that “no employer shall terminate the employment of an employee unfairly.” Section 45(2) then defines unfairness in these terms: a termination 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, related to the employee’s 16

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Elrc Appeal No. E020 Of 2025 conduct, capacity or compatibility, or based on the operational requirements of the employer; and (c) that the employment was terminated in accordance with fair procedure. The structure of the provision is instructive: it does not require the employee to prove that the reason was invalid, unfair, or the procedure improper; it requires the employer to prove the positive — that the reason was valid, fair, and fairly acted upon. Failing that proof, on any one of the three limbs, the termination is, by the plain language of the section, unfair. 18. Section 43 reinforces this allocation of the evidential burden as it relates to the reason for termination. It provides that “in any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45.” The provision leaves no room for an employer to rest on a bare assertion of a reason; the reason must be proved. 17

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Elrc Appeal No. E020 Of 2025 19. Section 47(5) completes the picture as regards the burden of proof generally in claims of this nature. It provides: “For any complaint of unfair termination of employment or wrongful dismissal, the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer.” The section thus divides the burden: the employee bears the initial, and comparatively modest, burden of establishing that a termination occurred and that he complains of its unfairness; but once that threshold is crossed — as it plainly was here, the fact and date of some termination never having been in dispute — the burden of justifying the grounds for that termination, both substantively and procedurally, shifts to and rests squarely on the employer. 20. Section 41 supplies the content of procedural fairness in cases, such as this one, founded on alleged misconduct. It requires an employer, before terminating an employee’s services on grounds of misconduct, poor performance or 18

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Elrc Appeal No. E020 Of 2025 physical incapacity, to explain to the employee, in a language he understands, and in the presence of a fellow employee or a shop floor union representative of his choosing, the reason why the employer is considering termination, and thereafter to hear and consider any representations the employee, or his chosen representative, may make on the matter, before a decision to terminate is taken. It is, in short, a codification of the audi alteram partem principle in the specific context of the contract of employment: an employee facing dismissal for misconduct must be told, in terms he can understand, what he is said to have done, and must be given a real, and not illusory, opportunity to answer it before the decision is made. 21. These statutory requirements have been authoritatively explained by the Court of Appeal in Isindu v Lavington Security Guards Ltd [2017] KECA 225 (KLR). The Court there emphasised that the burden of justifying the grounds of termination or dismissal rests squarely on the employer, who must prove, to the satisfaction of the court, the reason or reasons that actuated the termination, failing which the 19

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Elrc Appeal No. E020 Of 2025 termination falls to be treated as unfair; and further, that section 41 imposes on the employer an elaborate procedural obligation — to explain the reason for the contemplated termination to the employee, and to hear and genuinely consider any representations made — compliance with which is not a mere formality but a substantive precondition to a fair termination. 22. The Supreme Court of Kenya, in Kenfreight (EA) Limited v Nguti [2019] KESC 79 (KLR), restated and reinforced these same twin requirements at the apex of our judicial hierarchy. The Court affirmed that an employer who terminates a contract of employment must be able to demonstrate both a valid and fair reason for the termination — one falling within the categories contemplated by the Act, related to the employee’s conduct, capacity, compatibility, employer’s operational requirements — and or the that the termination was preceded by a fair process, including the affording to the employee of a real opportunity to be heard; and that once a court finds a termination to have been wrongful or unfair, the remedies available under section 49 20

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Elrc Appeal No. E020 Of 2025 of the Employment Act, 2007 fall to be considered and applied. The trial court, for its part, was equally guided by Walter Ogal Anuro v Teachers Service Commission [2013] KEELRC 386 (KLR), where it was held, in a passage the trial court itself quoted, that “for termination to pass the fairness test, it must be shown that there was not only substantive justification for the termination but also procedural fairness.” That statement of the law is entirely consonant with, and indeed derives from, the same statutory scheme and the appellate authority I have just set out, and I respectfully adopt it. 23. It follows that the two matters that fall for determination in this appeal — whether the respondent’s termination was substantively justified, and whether it was procedurally fair — are not alternative or discretionary enquiries. Both components must be established by the appellant, as the party carrying the burden under sections 43, 45(2) and 47(5) of the Act, for the termination to be held fair. I turn to consider each in turn. Substantive Justification 21

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Elrc Appeal No. E020 Of 2025 24. The reason advanced by the appellant for the respondent’s termination was abscondment of duty from 11th March 2023. Section 44(4)(a) of the Employment Act, 2007 does indeed recognise absence from work without leave or lawful cause as conduct capable of justifying summary dismissal, and there is, in principle, nothing objectionable in an employer relying on it as a ground of termination, provided the reason is genuinely held and properly proved. 25. The difficulty for the appellant on this record, however, is not the legal availability of the reason but its proof. The respondent’s unwavering case, both in his witness statement and in his pleadings, is that he was terminated on 3rd March 2023 — a date that precedes, by eight days, the very date on which the appellant says he first absented himself from duty. The appellant, for its part, points to the biometric attendance register for March 2023 to show that the respondent was in fact at work on 3rd March 2023 and continued to report for duty up to and including 11th March 2023. Taken at face value, that document does indeed appear to contradict the respondent’s account of the date of 22

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Elrc Appeal No. E020 Of 2025 his termination; but it does something else as well, which the appellant’s submissions do not confront: it leaves entirely unexplained precisely when, by whom, and on what documented authority the respondent’s employment was in fact brought to an end. The appellant’s own case is that a show cause letter was issued on 20th March 2023, that a disciplinary hearing was convened — on dates the record itself does not consistently state, the show cause letter of 20th March 2023 fixing it for 27th March 2023, while a further notice dated 3rd April 2023 refixes it for 10th April 2023 — and that termination followed the respondent’s failure to respond or attend. Yet no letter of termination — the one document that would definitively establish the fact, date and stated reason for the termination the appellant says it effected — was ever produced in evidence, either before the trial court or on this appeal. This is not a minor evidential gap. It is the absence of the very document by which an employer discharges its statutory duty to communicate, in writing and in terms the employee can understand, the reason for and the fact of his dismissal. 23

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Elrc Appeal No. E020 Of 2025 26. Section 43 of the Employment Act, 2007 places the burden of proving the reason for termination squarely on the employer, and section 47(5) confirms that, once the fact of termination is established — as it here is, both parties agreeing that the respondent’s employment came to an end, though disagreeing sharply as to when and why — it is for the employer to justify the grounds relied upon. An employer cannot discharge that burden by producing a show cause letter and an invitation to a hearing while withholding, or simply never producing, the letter that is said to have terminated the contract, still less where the very date the employer itself first offers as the trigger for its process (11th March 2023) sits awkwardly with the date the disciplinary machinery is said to have concluded (10th April 2023) against a record devoid of any document marking the actual moment of dismissal. On this state of the evidence, I am satisfied, as was the trial court, that the appellant did not discharge the burden resting upon it under sections 43 and 45(2)(a) and (b) of the Employment Act, 2007 to prove a valid and fair reason for the respondent’s termination. The 24

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Elrc Appeal No. E020 Of 2025 trial court’s characterisation of the abscondment defence as an “afterthought” was, in the circumstances I have outlined — and without this Court purporting to make a finding on the credibility of witnesses it neither saw nor heard — a fair description of a defence resting on process without proof of outcome, and I decline to disturb it. Procedural Fairness 27. I turn to the question of procedural fairness, which is the matter on which the parties, and the record as a whole, place particular emphasis. 28. In seeking to discharge its duty under section 41 of the Employment Act, 2007, the appellant’s case is that the respondent was served with a show cause letter dated 20th March 2023 and, subsequently, with an invitation to a disciplinary hearing, both by registered post. The burden of proving that service was in fact effected lay squarely on the appellant: it is the party that asserts service, it is the party in whose favour the presumption of regularity in the discharge of section 41 must be earned rather than assumed, and it is, in any event, the party in whose peculiar knowledge and 25

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Elrc Appeal No. E020 Of 2025 control the manner and address of dispatch lay. That last point is not a novel one; it reflects the ordinary evidential principle, of general application in civil proceedings, that where a fact is especially within the knowledge of a party, the burden of proving that fact lies upon that party. 29. Examining the registered post documentation upon which the appellant relies — found at page 58 of the record — I am not satisfied that it establishes service on the respondent at all, still less service at his known postal address. The document produced is a payment receipt issued by the Postal Corporation of Kenya, recording payment for a domestic registered letter, addressed, on its face, to “Juma Wanje Ulenje,” with a destination described simply as “Mazeras.” It does not bear, anywhere on its face, the respondent’s full postal address as recorded in the appellant’s own employment file — namely, P.O. Box 99, Mazeras. A receipt of this kind is, at its highest, proof that the appellant paid for an item to be sent by registered post to the general locality of Mazeras; it is not proof that the item was addressed to, or would in the ordinary course have 26

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Elrc Appeal No. E020 Of 2025 reached, the respondent at the specific box number at which the appellant’s own records show he could be found. The document that would ordinarily supply that proof — a certificate of posting, which by its nature bears the full name and postal address of the addressee to whom an item has been dispatched — was never produced in evidence, whether in respect of the show cause letter or otherwise. In the absence of that document, or any other reliable evidence that the letter of 20th March 2023 was in fact addressed and dispatched to the respondent’s known address, I find that the appellant has failed to prove service of the show cause letter. 30. The position with respect to the subsequent invitation to the rescheduled disciplinary hearing, contained in the notice dated 3rd April 2023, is, if anything, weaker still: no registered post receipt, certificate of posting, or any other proof of dispatch or service whatsoever appears anywhere on the record in relation to that document. And as I have already observed, no termination letter was produced at all, whether shown to have been served by registered post or 27

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Elrc Appeal No. E020 Of 2025 otherwise. There is, in short, no proof — none — that the respondent was ever served with any of the three documents by which the appellant says it discharged its obligations under section 41 of the Employment Act, 2007 and ultimately terminated his employment. 31. In these circumstances, an adverse inference falls properly to be drawn against the appellant. It was the party with custody of its own correspondence and postal records; it was the party best placed to produce a certificate of posting, or any comparable proof of service, had one existed; and its failure to do so, particularly where the very address said to have been used does not appear on the one postal document it did produce, permits, indeed compels, the inference that no such proof exists because service was not in fact satisfactorily effected. I have considered the submissions made on the appellant’s behalf on this point, urging this Court to find that the appellant discharged its burden by producing the registered post receipt of 20th March 2023 and the invitation letters themselves. I remain unpersuaded. The mere generation of an internal letter, and 28

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Elrc Appeal No. E020 Of 2025 the mere payment of postage to a locality rather than to a proven address, cannot, without more, satisfy an employer’s burden of proving that an employee was actually informed, in a language and manner reasonably calculated to reach him, of the case he was to meet. 32. There is, in addition, a further and, in this Court’s view, equally fatal deficiency in the appellant’s proof of procedural compliance. Beyond the bald assertion, in its Memorandum of Response and in the witness statement of its human resource officer, that a disciplinary hearing was convened and that a decision was reached, no minutes, notes, or any other contemporaneous record of that hearing were placed before the trial court or before this Court. There is no evidence of who attended, what was said, whether the respondent’s absence was noted and addressed, or what deliberation, if any, preceded the decision to terminate. I must be firm on this point: where an employer asserts, as the foundation of its compliance with section 41 of the Employment Act, 2007, that a disciplinary hearing was convened and concluded, the production of the minutes of 29

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Elrc Appeal No. E020 Of 2025 that hearing — or, at the very least, some comparable contemporaneous record of its proceedings and outcome — is not a matter of desirable practice; it is an imperative. It is the only reliable means by which a court can satisfy itself that the hearing was real and not notional, that it was fairly conducted, and that the decision reached followed genuine consideration of whatever the employee did or did not have to say. An employer who asks a court to accept, on its bare word, that a disciplinary process took place and concluded in a particular way, without producing the primary record of that process, has not discharged the burden the law places upon it. 33. For these reasons, I am satisfied, as was the trial court, that the appellant failed to prove that the respondent’s termination was preceded by the fair procedure mandated by section 41 of the Employment Act, 2007, and that the termination was, accordingly, procedurally unfair. Conclusion on Ground 1 34. Drawing the foregoing threads together, I find that the respondent’s termination was both substantively unjustified, 30

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Elrc Appeal No. E020 Of 2025 the appellant having failed to prove a valid and fair reason for it, and procedurally unfair, the appellant having failed to prove service of the show cause letter, service of the invitation to the disciplinary hearing, service of any termination letter, or the convening and conclusion of a genuine disciplinary hearing evidenced by minutes or their equivalent. The termination therefore fails both limbs of the twin test restated in Isindu v Lavington Security Guards Ltd (supra), Kenfreight (E.A.) Limited v Nguti (supra) and Walter Ogal Anuro v Teachers Service Commission (supra). The learned trial Magistrate did not err in finding the respondent’s termination unfair. I would only observe, without intending any discourtesy, that her reasoning on these points, though correct in its conclusion, was not as elaborately set out as the significance and contested nature of the case warranted — a want of elaboration I have endeavoured, in this judgment, to remedy. Ground 1 of the appeal accordingly fails. Ground 2: The Reliefs Awarded 31

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Elrc Appeal No. E020 Of 2025 35. Ground 2 challenges the reliefs awarded by the trial court, but does so only on the footing that the termination ought to have been found fair. That premise having failed, Ground 2 cannot succeed independently of it. In any event, I have independently examined the reliefs granted and find no error in them. The award of one month’s salary in lieu of notice, Kshs. 8,000/=, was properly grounded in sections 35 and 36 of the Employment Act, 2007 and supported by the respondent’s payslip; the trial court correctly declined the claim for unpaid leave as time-barred under section 90 of the Act, a finding favourable to the appellant that has not been, and could not properly be, impugned by it; and the award of five months’ compensation, Kshs. 40,000/=, was made after a considered application of the factors enumerated in section 49(4) of the Employment Act, 2007, including the respondent’s length of service and his noncontribution to the termination, well within the maximum of twelve months contemplated by section 49(1)(c) of the Act. No basis has been shown for this Court to interfere with the quantum awarded. Ground 2 of the appeal also fails. 32

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Elrc Appeal No. E020 Of 2025 F. DISPOSITION 36. For the reasons set out above, I find that this appeal lacks merit in its entirety. 37. I accordingly make the following orders: (a) The appeal is hereby dismissed. (b) The judgment of Hon. R. M. Amwayi, Principal Magistrate, delivered on 5th September 2025 in Kaloleni Principal Magistrate’s Court Employment and Labour Relations Cause No. E136 of 2024, is hereby upheld in its entirety. (c) The costs of this appeal shall be borne by the appellant. 38. It is so ordered. Dated, signed and delivered at Malindi this 21 st day of September 2026. …………………………………………… OCHARO KEBIRA 33

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Elrc Appeal No. E020 Of 2025 JUDGE 34

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