REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI APPEAL NO. E225 OF 2022 MARANGO PETER SIEKISA...........................................APPELLANT VERSUS CHANDARANA FOOD PLUS....................................... RESPONDENT [Being an appeal from the judgment of Hon. H. M. Nyaberi delivered on 22 November 2022 in Nairobi CMELRC Cause No. 2156 of 2019] JUDGMENT The appeal arises from the judgment delivered on 22 November 2022 in Nairobi CMELRC Cause No. 2156 of 2019. Aggrieved by the judgment, the appellant seeks that it be set aside, that a declaration be issued that the respondent unlawfully terminated his employment, and that the claim be allowed with costs. The grounds of appeal are that the learned magistrate erred in law and fact in finding that the termination of employment was lawful, and failed to consider the documents filed in support of the claims. The learned magistrate failed to appreciate that the respondent did not prove any grounds for termination of employment based on gross misconduct under section 44 of the Employment Act. The learned magistrate did not adhere to the principle that he who alleges must prove, and there was no evidence of the alleged misconduct or a criminal offence by the appellant. The summary dismissal was without substantive justification. Further grounds of appeal are that the trial court erred in failing to award the appellant unpaid wages of Ksh. 376,536 for the 8 months the appellant worked for the respondent. The 12 months' compensation should be paid in Ksh. 376,526; unpaid wages Ksh. 338,884, leave days Ksh. 21,964; notice pay Ksh. 31,378, with costs and interest from 30 April 2016. ELRC NAIROBI JUDGMENT APPEAL NO. E225 of 2022 1
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The appeal arose from a claim the appellant filed against the respondent. He claimed that he was employed by the respondent as a cashier at the Yaya branch on 10 March 2015. On 25 April 2016, the assistant manager, Krishna, went to the appellant’s workstation with the police, who arrested him and took him to Kilimani Police Station, where they took his M-Pesa details. They did not charge or prosecute him for any criminal offence. On 19 November 2016, the applicant was issued with a letter of summary dismissal for an alleged criminal offence. No disciplinary hearing was held, and the alleged theft went unaddressed for 8 months. This was in contravention of the law and without due process. The appellant said he filed an appeal against the summary dismissal on 1 December 2026; he was invited to an appeal hearing on 2 December 2016, but it was dismissed. He was not paid for 8 months while the disciplinary hearing was pending. The Criminal Department stated that no case had been established against the appellant. The appellant claimed the following: a) Earned wages from April to June 2016 Ksh. 31,378 x 2 = Ksh. 62,756. b) Wages for July 2016 to February 2017 Ksh. 34,516 x 8 = Ksh. 276,128. c) Accrued leave Ksh. 21,964. d) 12 months' compensation Ksh. 376,536. e) Notice pay Ksh. 31,378. The response and counterclaim are not attached to the Record of Appeal. The appellant filed a response to the response and counterclaim. In the judgment, the learned magistrate dismissed the appellant’s case on the basis that due process justified a summary dismissal. Determination This is a first appeal. The court relies on the Record of Appeal. ELRC NAIROBI JUDGMENT APPEAL NO. E225 of 2022 2
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As analysed above, the Record of Appeal contains no response and counterclaim. The Reply to the Response and Counterclaim refers to it only. The Index does not indicate the respondent's Response and Counterclaim. This record is missing. The appellant filed a Supplementary Record of Appeal; however, no Response and Counterclaim is attached. The respondent, too, despite service and filing of written submissions on the appeal, has attached no response or counterclaim. Procedurally, the appeal is filed contrary to the mandatory provisions of section 17 of the Employment and Labour Relations Court Act and Rules 12, 15, 16 and 18 of the Employment and Labour Relations Court (Procedure) Rules. The appeal has no foundation. The respondent does not address this. Addressing the appeal without a crucial and mandatory record does not foster justice. The respondent's response must be given context, as the appellant has done in the Response to the Response and Counterclaim. It is thus a vital and necessary record for the court to analyse, which the court on appeal is denied. This lapse renders the appeal fatal. Without the complete Record of Appeal, the appeal is hereby dismissed. No orders on costs. Delivered in open court this 25th day of September 2026 M. MBARŨ JUDGE In the presence of: Court Assistant: Kemboi …………………………………………… and …………………………………..…… ELRC NAIROBI JUDGMENT APPEAL NO. E225 of 2022 3
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