A.O. Bayusuf & Sons Limited v Boniface Oloo Wesonga

Elrc Appeal No. E220 Of 2025 reached the consignee on 3rd August 2023. Yet, when the product had been discharged, the consignee recorded that it had received 34,052 litres. Some 1,704 litres were unaccounted for. 2. Where those litres went is a question on which the parties have never agreed. The Appellant says a shortfall of that size, on a sealed load entrusted to one driver, could only have occurred with the driver’s knowledge or involvement. The Respondent says the dips on his truck registered no shortage at all; that the shortfall was recorded in the consignee’s own tank after offloading; that other trucks had encountered the same difficulty; and that the matter was resolved on site, and his truck released, after the Appellant’s management intervened. 3. This appeal does not require the Court to resolve that mystery. What it requires the Court to decide is a question of a different, and in some ways more important, kind. It is what the law requires of an employer before it may conclude that its employee is answerable for a loss of that nature, and 2

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Elrc Appeal No. E220 Of 2025 dismiss him for it. The Respondent was suspended without pay, left without word for two months, asked to answer a charge in less than a day, summoned to a disciplinary hearing by a WhatsApp message that he denies ever receiving, and dismissed two days later when he did not attend. The learned trial magistrate found the termination unfair and awarded him Kshs. 688,154.75. The Appellant says she was wrong. B. BACKGROUND (a) The claim 4. By a Statement of Claim filed in November 2023, the Respondent sued the Appellant in Mombasa MCELRC No. E804 of 2023. He pleaded that he was employed by the Appellant in December 2011 as a long-distance truck driver, on permanent terms, and that he earned a gross salary of Kshs. 32,288 per month until he was, in his words, “unfairly terminated on false allegations of gross misconduct”. He pleaded that throughout his employment his salary was subjected to unexplained deductions labelled “recovery”, 3

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Elrc Appeal No. E220 Of 2025 that he was underpaid, and that his statutory deductions were not remitted. 5. He pleaded that in July 2023 he delivered a sealed consignment to Uganda. On arrival, a complaint arose that the quantity delivered did not tally with the quantity loaded. He averred that other vehicles carrying similar products encountered the same problem, until it was discovered that the recipient’s storage tank held extra litres that created the discrepancy on offloading. Despite that clarification, the Appellant issued him with a letter dated 10th August 2023 suspending him indefinitely, without salary, pending an investigation that was never concluded. 6. He pleaded that sometime in October 2023, while still on suspension, he went to hospital and learnt that his NHIF contributions had not been remitted. When he went to the Appellant’s premises to follow the matter up, the Human Resource officer, on seeing him, issued him with a notice to show cause dated 11th October 2023, requiring a written response by 10:00 am the following day. He responded, 4

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Elrc Appeal No. E220 Of 2025 complaining of the short notice, and delivered his response to the Human Resource office. He was told to wait at the gate for an answer. He waited the whole day, only to be told that management was in a meeting and would not attend to him. He pleaded that there had been no communication from the Appellant since. 7. Under a heading titled “Submissions”, the Statement of Claim set out a list of complaints of unfair labour practice. Among them were that he was indefinitely suspended without salary, that the notice to show cause was too short, and, at sub-paragraph 14(j), that the Appellant “deliberately created circumstances of hardships to the Claimant which amounted to constructive dismissal/termination”. He sought a declaration that the Appellant’s actions were unlawful, and the following reliefs: (a) compensation for unfair termination, twelve months’ salary, Kshs. 411,633; (b) one month’s salary in lieu of notice, Kshs. 34,302.75; (c) unpaid salary for July to October 2023, Kshs. 137,211; 5

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Elrc Appeal No. E220 Of 2025 (d) underpayment from January 2020 to June 2023, Kshs. 84,619.50; (e) commuter allowance for 36 months, Kshs. 108,000; (f) accrued leave for two years, Kshs. 69,360.90; (g) refund of unlawful deductions labelled “recovery”, Kshs. 226,205; (h) refund of unremitted NSSF and NHIF deductions, Kshs. 6,400 and Kshs. 10,800; and (i) a certificate of service, costs and interest. (b) The response 9. By its Statement of Response dated 30th January 2024, the Appellant admitted that it employed the Respondent, whom it said was appointed on 29th December 2011 as a truck driver, and that he earned a gross salary of Kshs. 32,288. It denied that he was terminated in July 2023. It pleaded that on 28th July 2023 his truck was loaded with 35,756.590 litres for delivery to COSL Uganda Ltd, and that on 3rd August 2023 he delivered 34,052 litres, occasioning a shortage of 6

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Elrc Appeal No. E220 Of 2025 1,704 litres. It pleaded that such a discrepancy could only arise with the knowledge and involvement of the driver, that intact seals did not exonerate him, and that he offered no explanation. 10. It pleaded that he was suspended by a letter dated 10th August 2023 to allow for investigations, and that it was in constant communication with him. It pleaded that he was issued with a notice to show cause dated 11th October 2023, to which he responded on 12th October 2023 asking to be formally invited to a disciplinary hearing, and that it agreed. It pleaded that at a meeting held on 13th October 2023 it decided to give him more time and to summon him formally. It then issued him with a letter dated 13th October 2023, sent by WhatsApp to his last known number, inviting him to a disciplinary hearing on 16th October 2023. The message, it pleaded, was delivered on 15th October 2023 at 10:31 am and seen at 10:32 am. He did not attend, and it terminated his employment by a letter dated 18th October 2023, a copy of which was delivered to the Transport Workers Union. 7

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Elrc Appeal No. E220 Of 2025 11. On the other heads of claim, the Appellant pleaded that the deductions were made to recover transit losses and fuel pilferage attributable to the Respondent, to which he had consented by a personal commitment letter dated 5th May 2023. It pleaded that he was never underpaid, that he took his leave or sold his leave days, that his statutory deductions were remitted, and that he had a record of warnings for various infractions. (c) The evidence at the trial 12. The Respondent testified on 25th July 2024. He adopted his witness statement and produced his documents. He stated that the Appellant did not call him or send him any invitation on WhatsApp. In cross-examination, he stated that he was issued with the notice to show cause on 11th October 2023 and responded by his letter of 12th October 2023, pointing out that the notice was too short but nonetheless offering his explanation. He stated that he never received any WhatsApp message. Shown the number 0722922651, he said that it was his number, but that it was not on WhatsApp. In re8

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Elrc Appeal No. E220 Of 2025 examination, he gave his WhatsApp number as 0780129940, and repeated that the other number was not on WhatsApp. 13. The Appellant called one witness, its Human Resource Manager, Mr. Shem Onyango Ouma (RW1), who adopted his witness statement dated 23rd February 2024 and the Appellant’s documents. In his statement, he said that on 13th October 2023 the Respondent was invited to a disciplinary hearing but asked for an official letter, and that the official letter was then served by WhatsApp on the number 0722922651, and marked as delivered and seen on 15th October 2023. In chief he said: “The letters I served through WhatsApp. I have produced the screenshots.” 14. In cross-examination, RW1 made several concessions. He confirmed that the Respondent “did not receive his salary … till termination”. He confirmed that most of the warning letters relied on bore no signature acknowledging receipt. He said: “We served him with NTSC and invitation for a hearing through WhatsApp. It is upon Boniface to disagree that the phone number does not belong to him. We did not conduct a 9

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Elrc Appeal No. E220 Of 2025 hearing disciplinary. There are no minutes.” He stated that the meeting was to take place on 16th October 2023, that the Respondent was not there, and that the Appellant then decided to dismiss him. (d) The judgment 15. In her judgment delivered on 28th October 2025, the learned trial magistrate (Hon. R. Ombata, PM) framed three issues. On the first, she held that while the Appellant claimed to have issued notices and invitations, the mode of communication by WhatsApp and the lack of any physical acknowledgment raised concerns about procedural fairness; that the Respondent’s evidence that he was denied access to the Human Resource office undermined the credibility of the process; and that the indefinite suspension without pay, coupled with the absence of an investigation report or hearing minutes, showed that the process did not accord with natural justice. She found the termination unlawful and procedurally unfair. 10

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Elrc Appeal No. E220 Of 2025 16. On the second issue, she held that, in light of the indefinite suspension without safeguards, the pay and the lack of procedural Respondent had been constructively dismissed. 17. On the reliefs, she awarded six months’ salary as compensation, Kshs. 205,816.50, having regard to the Respondent’s length of service, the nature of the termination and the absence of prior disciplinary action until the disputed incident. She awarded one month’s salary in lieu of notice, Kshs. 34,302.75; unpaid salary for July to October 2023, Kshs. 137,211; and underpayment, Kshs. 84,619.50. On the deductions, she held that although the commitment letter might indicate consent, the Appellant had produced no detailed records linking specific deductions to confirmed incidents of loss, and that the letter could not justify blanket deductions over an extended period. She ordered a refund of Kshs. 226,205. She declined the claims for commuter allowance, leave and the refund of NSSF and NHIF deductions. The total award was Kshs. 688,154.75, with costs and interest. 11

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Elrc Appeal No. E220 Of 2025 C. THE APPEAL 18. Dissatisfied with part of the judgment, the Appellant lodged a Memorandum of Appeal dated 11th November 2025, setting out thirteen grounds. It contends that the learned magistrate erred in law and in fact: (1) in holding that the Respondent was unfairly and unprocedurally terminated; (2) in failing, in so holding, to consider the aspects of substantive and procedural fairness; (3) in failing to find that the unexplained loss of 1,704 litres of fuel was a sufficient reason for the termination, and consequently that the termination was substantively fair; (4) in failing to find that the Appellant complied with section 41 of the Employment Act, and in holding that it did not issue the requisite notices and invitation to a disciplinary hearing; 12

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Elrc Appeal No. E220 Of 2025 (5) in failing to note that the Respondent was issued with a notice to show cause on 11th October 2023, and a letter dated 13th October 2023 inviting him to a disciplinary hearing on 16th October 2023, which he did not honour, leading to a termination letter dated 18th October “2025”; (6) in holding that the lack of physical service of the invitation and the termination letter rendered the process procedurally unfair, despite proof of service by WhatsApp on his last known number; (7) in awarding one month’s salary in lieu of notice and “9 months’ salary” as compensation for unfair termination; (8) in ordering a refund of deductions despite the Respondent’s consent to them by his letter of 5th May 2023; (9) in failing to consider that letter, and so failing to appreciate that the Respondent admitted accumulated transit losses; 13

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Elrc Appeal No. E220 Of 2025 (10)in failing to consider that by that letter the Respondent agreed to have the losses recovered from his annual leave or terminal benefits; (11)in failing, in reaching that decision, to appreciate the import of section 19(1)(b) and (d) of the Employment Act; (12)in placing too much reliance on the Respondent’s statements rather than on the facts, substance and weight of the Appellant’s evidence; and (13)in taking extraneous factors into account in allowing the claims for unfair termination and unlawful deductions. 19. The Appellant asks that the appeal be allowed; that the termination be held fair and procedural; that the awards of notice pay, compensation and the refund of Kshs. 226,205 be set aside; and that it be awarded the costs of the claim and of this appeal. The appeal was canvassed by way of written submissions. D. THE PARTIES’ SUBMISSIONS 14

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Elrc Appeal No. E220 Of 2025 (a) The Appellant’s submissions 20. In its written submissions dated 2nd April 2026, filed by Khalid Salim & Company Advocates, the Appellant stated that it appeals against part of the judgment, namely the finding that the Respondent was unfairly terminated and the awards of notice pay, compensation and the refund of deductions. It framed three issues: whether the termination was substantively and procedurally fair; whether the Respondent was entitled to the reliefs challenged; and whether the appeal is merited. 21. On substantive fairness, the Appellant relied on sections 43(2), 45 and 47(5) of the Employment Act. It submitted that the Respondent admitted that he was the sole person in charge of the vehicle, and that the shortage of 1,704 litres was neither denied nor satisfactorily explained by him. It urged that the loss of so large a quantity occasioned it substantial financial loss, amounted to neglect of duty and 15

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Elrc Appeal No. E220 Of 2025 constituted gross misconduct within section 44(4) of the Act. It relied on Mwangi v Multiple Haulier (EA) Limited [2022] KEELRC 12978 (KLR), and on Amos Kitavi Kivite v Kenya Revenue Authority for the proposition that an employer need not prove that the employee committed theft; reasonable suspicion suffices. It relied, too, on Francis Nyongesa Kweyu v Eldoret Water and Sanitation Company Limited [2017] eKLR, where dishonesty was held to have broken down the employment relationship. It submitted that, arising from the absence of a satisfactory explanation, it reasonably suspected that the Respondent had siphoned the fuel. 22. On procedure, it submitted that due process was followed. The Respondent was suspended by the letter of 10th August 2023 to pave the way for investigations, and the Appellant communicated with him on the issue. He was issued with a notice to show cause dated 11th October 2023, to which he responded and asked for a disciplinary hearing. He was then issued with the letter of 13th October 2023, delivered by WhatsApp and seen, a screenshot of which forms part of its 16

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Elrc Appeal No. E220 Of 2025 documents. The evidence showed that he received and read the invitation but failed, neglected and refused to attend. 23. On the reliefs, the Appellant submitted that the Respondent was summarily dismissed for gross misconduct under section 44 of the Act, which allows an employer to dismiss without notice, so that notice pay was not due. It submitted that, having shown that the termination was substantively and procedurally fair, the Respondent was not entitled to compensation. In the alternative, it urged the Court to consider the factors in section 49(4) of the Act, and relied on Liz Ayany v Leisure Lodges Limited [2018] eKLR, in which the employee was denied full compensation on account of her conduct and the warnings issued to her. It pointed to the warning letters at pages 78 to 84 of the record, urging that the Respondent had been warned severally, pilferage of fuel being the clearest instance. 24. On the refund, the Appellant submitted that the deductions were not arbitrary but were based on documented fuel shortages attributable to the Respondent’s wilful default, as 17

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Elrc Appeal No. E220 Of 2025 permitted by section 19(1) of the Act. It urged that the Respondent was aware of the deductions and had acknowledged the losses in his personal commitment letter of 5th May 2023, at page 85 of the record, whose authenticity he did not contest. He could not, it submitted, benefit from his own wrongdoing. The Appellant also placed before the Court, among other authorities, Kenya Power & Lighting Company Ltd v Wasike [2017] KECA 446 (KLR) and Matsesho v Newton [2022] KEELRC 1554 (KLR). It urged that the appeal be allowed in its entirety. (b) The Respondent’s submissions 25. In his written submissions dated 10th April 2026, filed by Mboku & Co. Advocates, the Respondent described the appeal as a straightforward one, ripe for dismissal with costs. He faulted the Appellant for saying that it appeals against part of the judgment without identifying with any precision which part aggrieves it, while praying at the tail end of its submissions for the whole appeal to be allowed. This, he said, is a classic case of uncrystallised grievances, 18

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Elrc Appeal No. E220 Of 2025 “akin to shooting arrows in darkness hoping to strike some target”. 26. He submitted that the trial court correctly found that he was subjected to an unfair labour practice: accusation without evidence or investigation, indefinite suspension without salary, short notice to show cause and of the hearing, no disciplinary hearing, illegal deduction of salary, underpayment and eventual termination. He recounted that the consignee clarified on the spot that the discrepancy arose from excess fuel already in its storage tank, that he was cleared to return, and that no investigation was ever conducted. He was handed the notice to show cause only when he went to the premises to enquire about his status, and was given twelve hours to respond. The invitation to the hearing, allegedly sent by WhatsApp on 15th October 2023 at 10:31 am for a hearing the next day, gave him less than 24 hours’ notice, and there was no proof that it reached his registered number. When he went to the premises, he was denied access to the Human Resource office and left at the gate for ten hours. 19

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Elrc Appeal No. E220 Of 2025 27. On the law, he submitted that Mwangi v Multiple Haulier (EA) Limited (supra) and Francis Nyongesa Kweyu (supra) were correctly distinguished by the trial court. In Mwangi, the employee had signed a discharge voucher accepting the deduction and waiving his claims. In Kweyu, the employee admitted receiving and keeping customer money in his personal account. Here, the Respondent explained the discrepancy on the spot and was cleared by the consignee, and the Appellant produced no investigation report or evidence linking the loss to wilful misconduct. Under sections 45(2) and 47(5), the burden lay on the Appellant to prove a valid and fair reason, and it failed to discharge it. 28. On procedure, he relied on section 41 of the Act and on National Bank of Kenya v Samuel Nguru Mutonya [2019] KECA 404 (KLR), which emphasises that a fair hearing is mandatory. He relied also on Wilson Aron v Bokhol Transporters Limited, Mombasa ELRCA No. E185 of 2024 (13th March 2025), for the proposition that an employer must formally and procedurally terminate employment even where the employee is absent, and that merely asserting the 20

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Elrc Appeal No. E220 Of 2025 employee’s absence is not enough. He submitted that the indefinite suspension without pay for over four months, together with the failure to remit NHIF and NSSF contributions, created intolerable conditions amounting to constructive dismissal, relying on Coca-Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] eKLR. 29. On the reliefs, he submitted that the award of six months’ compensation was well within section 49(1)(c) and (4) of the Act, having regard to his service of over nine years and the egregious process; that notice pay was due under his contract and section 35, this not having been a proven summary dismissal for gross misconduct; and that the unpaid salary and underpayment were properly awarded. On the refund, he submitted that blanket deductions of Kshs. 10,000 a month over three years lacked itemised records or audit trails; that section 19(1)(d) permits deductions only for verified wilful default or negligence; that a general consent letter cannot justify an illegality; and that, fundamentally, the deductions predated the letter of 5th May 2023, so that 21

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Elrc Appeal No. E220 Of 2025 when they were made there was no consent at all. He urged that the appeal be dismissed with costs. E. ANALYSIS AND DETERMINATION (a) The duty of this Court 30. This is a first appeal. It is the duty of this Court to reconsider the evidence, evaluate it afresh and draw its own conclusions, bearing in mind that it did not see or hear the witnesses and giving due allowance for that: Selle & another v Associated Motor Boat Company Limited & others [1968] EA 123. An appellate court will not lightly interfere with findings of fact made by a trial court. It will do so where they rest on no evidence, on a misapprehension of the evidence, or on the application of a wrong principle. (b) A preliminary observation: the office of grounds of appeal 31. Before turning to the issues, I consider it necessary to say something about the Memorandum of Appeal. What I say is not determinative of the appeal, but it bears saying. 22

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Elrc Appeal No. E220 Of 2025 32. Grounds of appeal serve a precise and limited function. They identify, concisely and under distinct heads, the specific errors of law or of fact that the appellant attributes to the trial court. Order 42 rule 1(2) of the Civil Procedure Rules, whose spirit informs the practice of this Court in appeals from the subordinate courts, captures the requirement in terms: the memorandum “shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.” A ground of appeal points to an error. It is not the place to argue why the error was made, to narrate the evidence, or to plead the appellant’s case afresh. 33. Grounds of appeal were never intended to take the place of submissions, and they are not a second statement of claim, plaint or statement of defence. The case was pleaded, and the evidence was taken, in the trial court. The appeal is a review of the decision reached on that case and that evidence. A memorandum that re-narrates the facts, embeds argument, and repeats the same complaint in different 23

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Elrc Appeal No. E220 Of 2025 words under several heads does not assist the appellate court. It obscures the real points of contention, invites prolixity in the submissions that follow, and places on the respondent the unfair burden of guessing what, precisely, it is required to meet. 34. The present memorandum falls into some of these errors. Grounds 1 and 2, and grounds 4, 5 and 6, repeat the same complaint in different language. Ground 5 narrates the documentary history of the disciplinary process, and misdates the letter of termination to 2025. Grounds 8 to 11, all directed at the single award of a refund of deductions, are argument rather than grounds. Ground 10 refers to “the decision in paragraph 8 above”, as though the memorandum were a pleading. Ground 7 complains of an award of “9 months’ salary” as compensation, when the award actually made was six months’ salary. The Respondent’s complaint that the Appellant appeals against “part” of the judgment without identifying with precision which part is not without foundation. I have nonetheless considered the substance of every ground, for a party’s access to justice should not turn 24

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Elrc Appeal No. E220 Of 2025 on the craftsmanship of its memorandum. The observation is made so that the discipline the rules require is not lost sight of. (c) The issues 35. Having considered the record, the grounds of appeal and the rival submissions, the following issues fall for determination: (i) the suspension of the Respondent, and whether the learned magistrate was entitled to find that he had been constructively dismissed; (ii) whether the termination of the Respondent’s employment was procedurally fair; (iii) whether the termination was substantively justified; (iv) whether the reliefs challenged were properly awarded; and (v) costs. (d) Issue (i): The suspension, and the finding of constructive dismissal The employer’s prerogative to suspend 25

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Elrc Appeal No. E220 Of 2025 36. It is not in doubt that an employer has a managerial prerogative to suspend an employee. Where an allegation of misconduct is made, the employer may need to remove the employee from the workplace for a time, whether to pave the way for investigations, to protect evidence or witnesses, to safeguard its property or its reputation, or to prevent a repetition of the conduct complained of. An investigatory suspension of that kind is not a punishment. It is a holding measure, taken so that the truth can be ascertained. Courts will not lightly interfere with an employer’s decision to take it. 37. The prerogative is, however, not unbounded. Like every managerial power, it must be exercised in good faith and with reasonable cause. The suspension must be genuinely linked to a legitimate purpose, such as an investigation that is actually being carried out. It must be proportionate. It must not be used as a disguised penalty, imposed without a hearing, or as a means of wearing the employee down. Where a suspension fails these tests, it may properly be found to amount to an unfair labour practice, in breach of 26

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Elrc Appeal No. E220 Of 2025 the right guaranteed by Article 41(1) of the Constitution, and the employer must bear the consequence of paying damages. 38. I would go further. A suspension should never be indefinite. An employee on suspension remains an employee. He remains bound by his contract. He cannot, without risk, take up other employment. Yet he is barred from the work by which he earns his living and from the workplace in which he has built his standing, and he is left with a cloud of suspicion over his head. Where, as here, the suspension is also without pay, he is deprived of the means to sustain himself and his family, while the matter that led to it waits upon the employer’s convenience. An employee in that position is held in limbo, neither working nor free. The law does not countenance an employer holding an employee in that state for as long as it pleases. 39. It follows that an employer who suspends an employee assumes corresponding obligations. It must state, or at least be able to justify, the period of the suspension. It must 27

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Elrc Appeal No. E220 Of 2025 pursue the investigation with diligence and dispatch. It must keep the employee informed. And it must bring the process to a conclusion within a reasonable time, either by recalling him to work or by initiating the disciplinary process. An employer that suspends and then goes silent breaches the implied duty of mutual trust and confidence that underlies every contract of employment. An indefinite suspension, and all the more so one without pay, may be so fundamental a breach of the contract as to be repudiatory in nature. It can, in an appropriate case, found a claim for constructive dismissal. This Court so held in Njuguna v Sybrin Kenya [2024] KEELRC 287 (KLR), where it observed that a suspension without pay should be for a determinate period, and that an indefinite suspension has been found across jurisdictions to amount to a fundamental breach of a contractual term. 40. Measured against those principles, the Appellant’s conduct of the suspension cannot be commended. The letter of 10th August 2023 sent the Respondent on suspension “pending the outcome of an investigation”. It stated no period. It was 28

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Elrc Appeal No. E220 Of 2025 silent on pay. It promised only that he would “be informed in due cause the progress of the investigations”. He was never so informed. The Appellant pleaded that it was in constant communication with him, but it produced no evidence of a single communication between 10th August and 11th October 2023. No investigation report was produced. RW1 conceded that the Respondent was not paid his salary until his termination. The next step in the process was taken only when the Respondent presented himself at the Appellant’s premises on 11th October 2023, on his own initiative, to enquire about his statutory contributions. Only then, and on seeing him, was a notice to show cause issued. Had he not gone, there is nothing on the record to suggest that the suspension would not have continued. 41. In my view, a suspension without pay, of undefined duration, attended by no communication and no evident investigation for two months, was not exercised in good faith and with reasonable cause. It was an unfair labour practice. It is right to note that the award of unpaid salary for the suspension period was not challenged in this appeal. These observations 29

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Elrc Appeal No. E220 Of 2025 are made because they bear on the fairness of the process as a whole, to which I shall return, and on the circumstances relevant to compensation. Was constructive dismissal open to the trial court? 42. That brings me to the finding, on the second issue framed by the learned magistrate, that the Respondent was constructively dismissed. Although the Appellant has not directed a specific ground at it, the finding was expressly relied upon in the award of compensation and of notice pay, both of which are challenged. It must therefore be addressed. 43. It is a cardinal principle of adjudication that parties are bound by their pleadings. The pleadings define the issues. They tell each party the case it has to meet, so that neither is taken by surprise. It follows that a court of law cannot travel beyond the pleadings and fashion for a party a case that the party did not bring. The Court of Appeal affirmed the principle in Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 30

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Elrc Appeal No. E220 Of 2025 (KLR), adopting the words of Sir Jack Jacob, as cited in Malawi Railways Ltd v Nyasulu [1998] MWSC 3: “As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings… for the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings.” 44. A corollary of the principle is that a case cannot be built at the level of the submissions. Submissions are the advocate’s 31

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Elrc Appeal No. E220 Of 2025 argument upon the pleaded case and the evidence adduced. They are neither pleadings nor evidence, and they cannot supply what the pleadings and the evidence do not contain. As the Court of Appeal put it in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] KECA 642 (KLR), submissions cannot take the place of evidence, and what has not been proved by evidence cannot be proved by submissions. Courts must therefore be careful not to allow a case to be calibrated at the submissions stage, into a shape that it never had in the pleadings. To do so is to decide an issue that the opposing party was never called upon to meet. 45. Constructive dismissal is a distinct cause of action with its own ingredients. It arises where the employer’s conduct amounts to a repudiatory breach of a fundamental term of the contract, and the employee, in response to that breach, elects to treat the contract as at an end and leaves, whether by resigning expressly or by conduct. In constructive dismissal, it is the employee who brings the relationship to an end, compelled to do so by the employer’s conduct: Coca Cola East & Central Africa Ltd v Ligaga [2015] KECA 394 32

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Elrc Appeal No. E220 Of 2025 (KLR). A party who relies on it must plead the material facts that constitute it: the term breached, the conduct said to be repudiatory, and the fact and time of his acceptance of the repudiation by leaving. 46. The Respondent pleaded none of these. The words “constructive dismissal” appear in the heading of the Statement of Claim, in the list of issues, and as a bare conclusion at sub-paragraph 14(j), under a heading, tellingly, of “Submissions”. They appear again at the close of his witness statement. At no point did he plead that he accepted the Appellant’s conduct as a repudiation of the contract, or that he left, or when. His pleaded case was the contrary one: that the Appellant terminated his employment on “false allegations of gross misconduct”. It was in his final written submissions before the trial court that the case of constructive dismissal was, for the first time, developed as a cause of action, anchored on the authority of Coca-Cola East & Central Africa Limited v Maria Kagai Ligaga (supra). Constructive dismissal, as a cause of action, was never pleaded. It was a case calibrated at the submissions stage. 33

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Elrc Appeal No. E220 Of 2025 47. Nor could it have succeeded on the evidence. It was common ground at the trial, and it is common ground on appeal, that the employment was brought to an end by the Appellant, by its letter of summary dismissal of 18th October 2023. The Respondent’s own final submissions before the trial court opened with the assertion that “his termination by the Respondent on 18th October 2023 was unfair”. An employee cannot at once have been dismissed by his employer and have left in acceptance of the employer’s repudiation. The two are mutually exclusive. The learned magistrate, with respect, erred in finding that the Respondent was constructively dismissed, and that finding cannot stand. 48. That conclusion does not, however, dispose of the appeal. The learned magistrate did not rest her decision on constructive dismissal alone. Under her first issue she independently found, on the pleaded case, that the termination was unlawful and procedurally unfair. It is that finding that the Appellant principally challenges, and it is to 34

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Elrc Appeal No. E220 Of 2025 that finding, measured against the statutory standard of fairness, that I now turn. (e) The statutory standard of fairness 49. Section 45(1) of the Employment Act provides that no employer shall terminate the employment of an employee unfairly. Under section 45(2), a termination is unfair if the employer fails to prove that the reason for it is valid; that the reason is a fair reason related to the employee’s conduct, capacity or compatibility, or based on its operational requirements; and that the employment was terminated in accordance with fair procedure. Section 43 places on the employer the burden of proving the reason for the termination, and section 47(5) confirms that, once the employee has shown that an unfair termination occurred, the burden of justifying the grounds of the termination rests on the employer. 50. The law thus contemplates two statutory aspects of fairness, both of which must be satisfied. The first is substantive justification: a valid and fair reason, proved by the employer. 35

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Elrc Appeal No. E220 Of 2025 The second is procedural fairness: the process prescribed by section 41. As was held in Walter Ogal Anuro v Teachers Service Commission [2013] KEELRC 386 (KLR), for a termination to pass the fairness test, it must be shown that there was not only substantive justification for it, but also procedural fairness. The Court of Appeal, in Postal Corporation of Kenya v Andrew K. Tanui [2019] KECA 489 (KLR), explained that sections 41, 43 and 45 must be read together. Before terminating an employee on grounds of misconduct, the employer must explain to him, in a language he understands, the reason for which it is considering termination. The employee is entitled to have a fellow employee or a shop floor union representative of his choice present during that explanation. And the employer must hear, and consider, any representations that the employee, and the person chosen by him, may make. A termination that fails either aspect is unfair. 51. Section 45(4)(b) adds a further, overarching standard. A termination is unfair where it is found that, in all the circumstances of the case, the employer did not act in 36

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Elrc Appeal No. E220 Of 2025 accordance with justice and equity in terminating the employment. In deciding that question, section 45(5) requires the court to consider, among other things, the procedure adopted by the employer in reaching the decision to dismiss, the communication of that decision, the conduct and capability of the employee up to the date of termination, the extent to which the employer complied with the procedural requirements of section 41, and the existence of any previous warning letters. 52. The Respondent’s case that his termination was unfair was plainly laid before the trial court. The burden therefore lay on the Appellant to demonstrate both a valid reason and a fair procedure. I take the two aspects in turn, beginning with procedure. (f) Issue (ii): Procedural fairness The notice to show cause 53. The Appellant issued the Respondent with a notice to show cause dated 11th October 2023. It stated the charge: that despite several warnings he had continued to bring short 37

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Elrc Appeal No. E220 Of 2025 deliveries to the company, the latest being in August 2023, when he had a short delivery of 1,704 litres. It invited him to explain in writing why disciplinary action should not be taken against him. That was a good start on the part of the employer, and I so find. A notice to show cause that identifies the charge and calls for an explanation is the foundation of a fair process. 54. But the notice required his “truthful response” by “tomorrow at 10:00 am”. On the Respondent’s evidence, which was not displaced, it was handed to him when he appeared at the premises that day. He was thus given less than a day to answer. The Respondent protested, and in my view genuinely so. His written response of 12th October 2023 opens with the complaint: “First the Notice is short, I cannot honestly respond in less than 12 hours.” He then, to his credit, gave his explanation notwithstanding. 55. The purpose of a notice to show cause is to afford the employee a real opportunity to answer the charge. What is a reasonable time will depend on the nature of the charge. 38

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Elrc Appeal No. E220 Of 2025 This charge was not a simple one. It concerned a shortage said to have occurred two months earlier, in a foreign country, and recorded in measurements taken by a third party. It was widened, moreover, to embrace a history of “short deliveries” over an unspecified period. To answer it properly, the Respondent would have needed to recall and reconstruct events, and, if he could, to obtain the documents bearing on the loading, the dips, the seals and the offloading. Less than a day was not a reasonable time. The haste is all the more striking when it is set against the two months that the Appellant had itself taken, without a word to him, since the suspension. The invitation to the disciplinary hearing 56. The Appellant’s case is that on receiving the response, and at the Respondent’s own request, it invited him to a disciplinary hearing by a letter dated 13th October 2023, and that the letter was served on him by WhatsApp. That allegation was put in issue by the Respondent from the 39

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Elrc Appeal No. E220 Of 2025 outset. The burden of proving it lay on the Appellant, which asserted it: sections 107 and 109 of the Evidence Act. 57. I am not satisfied that the allegation was sufficiently proved. The only evidence of service is a screenshot of a WhatsApp “Message info” screen. It shows an image of the letter, sent at 10:30 am, with the notations “Delivered 15 October, 10:31 am” and “Seen 15 October, 10:32 am”. It does not show the recipient. No number, no contact name and no chat header appears on it. From the document itself, it simply cannot be told to whom the message was sent. The number 0722922651 is supplied only by RW1’s witness statement and by the Appellant’s own letter of dismissal, which is not independent proof of anything that it recites. 58. As against this, the Respondent’s evidence was clear and consistent. He said that 0722922651 was indeed his number, but that it was not on WhatsApp, and that his WhatsApp number was 0780129940. The Appellant did nothing to displace that evidence. It did not produce the chat thread, showing the recipient and any earlier exchanges with him on 40

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Elrc Appeal No. E220 Of 2025 that number. It did not show that it had ever before communicated with him by WhatsApp. It did not call him, or send him a text message, to alert him to the hearing. It did not serve the letter physically, although the Respondent had been at its premises on 11th and 12th October. RW1’s answer in cross-examination, that “it is upon Boniface to disagree that the phone number does not belong to him”, misplaces the burden. It was for the Appellant to prove service, not for the Respondent to disprove it. 59. The Appellant’s own account of the invitation is, moreover, not a consistent one. The letter of dismissal records that the invitation was served through WhatsApp “on 13th October at 10:30 am”. The Statement of Response and RW1’s statement say that the message was delivered on 15th October 2023. The response speaks of a management meeting on 13th October 2023 at which it was decided to give the Respondent more time, but no minutes of that meeting were produced. RW1’s statement speaks, in the same breath, of a show cause letter issued on “11th September October 2023”. These inconsistencies, in a 41

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Elrc Appeal No. E220 Of 2025 matter wholly within the Appellant’s control, do not inspire confidence. On the whole of the evidence, I find that the Appellant did not prove that the invitation reached the Respondent. The time allowed for the hearing 60. There is a further and, in my view, equally fundamental difficulty. Even if the Appellant’s own evidence were accepted in its entirety, the message was seen at 10:32 am on 15th October 2023. That was a Sunday. The hearing was fixed for 9:00 am on Monday, 16th October 2023. The Respondent was therefore given, on the Appellant’s best case, some twenty-two hours’ notice, the greater part of them on a Sunday night, to appear before a disciplinary panel on a charge on which his livelihood of more than a decade depended. 61. That cannot be sufficient time for an employee to prepare to defend himself against accusations of that gravity. The right to be heard is not satisfied by a summons to a room. It is a right to a real and effective opportunity to answer the case 42

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Elrc Appeal No. E220 Of 2025 against one, and that carries with it adequate time and facilities to prepare. Within the time allowed, the Respondent would have had to understand the full case against him, which by then extended to a history of past “short deliveries”; to marshal his defence to it; to try to obtain the loading and delivery documents, the dip readings and the consignee’s records; and to identify and secure the attendance of the fellow employee or shop steward whom the letter itself invited him to bring. None of that could reasonably be done between a Sunday morning and nine o’clock on the Monday. The right to be accompanied, which section 41 guarantees, is hollow if the employee has no time in which to arrange it. 62. A disciplinary hearing is not a formality to be discharged so that a decision already made can be recorded. Section 41(2) requires the employer to hear and consider the employee’s representations before deciding. An employer that fixes a hearing at such short notice, having itself taken two months to set the process in motion, does not act in accordance with justice and equity. It is true that where an employee, having 43

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Elrc Appeal No. E220 Of 2025 been given reasonable notice of a hearing, chooses not to attend, the employer may proceed in his absence. That principle presupposes both that the notice was duly served and that it was reasonable. Neither was demonstrated here. 63. In the event, no hearing took place at all. RW1 was candid: “We did not conduct a hearing disciplinary. There are no minutes.” The Respondent was dismissed two days later, by a letter that records that he did not appear. His written explanation of 12th October 2023 is not so much as mentioned in it. The learned magistrate was right to find that the termination was procedurally unfair. Grounds 4, 5 and 6 of the appeal fail. (g) Issue (iii): Substantive justification 64. The questions of substantive justification and procedural fairness are, in some cases, closely interwoven. This is one of them. Section 43(2) of the Employment Act describes the reasons for termination as the matters that the employer, at the time of the termination, genuinely believed to exist, and which caused it to terminate the employment. A belief that is 44

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Elrc Appeal No. E220 Of 2025 genuine in the statutory sense is one formed honestly, on reasonable grounds, after the employer has done what is reasonably required to establish the facts, including hearing the employee. Where the employer has refused, or failed, to hear the employee’s answer to the charge, it is difficult to see how its belief in his guilt could have been formed on reasonable grounds. Absent a disciplinary hearing, a court may properly conclude that the reason for the termination was not shown to be fair, and that the employer did not act in accordance with justice and equity within the meaning of section 45(4)(b), read with section 45(5). 65. That is the position here. The Respondent gave a specific explanation of the shortage in his response of 12th October 2023. He said that he loaded without incident; that on arrival the consignee recorded the seal numbers and confirmed that they had not been tampered with before they were cut; that the dips of every chamber were recorded and that his truck registered no shortage; that the shortage of 1,704 litres was recorded only after offloading, in the consignee’s tank; that he therefore declined to sign the shortage document; and 45

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Elrc Appeal No. E220 Of 2025 that the truck was released after the intervention of the Appellant’s management team. There is no indication that the Appellant considered that explanation at all. The letter of dismissal does not mention it. The Appellant’s submission, both before the trial court and on appeal, that the shortage was “neither denied nor satisfactorily explained” is not borne out by the record. It was both denied and explained. Whether the explanation was true was a matter for inquiry. It was never inquired into. 66. I accept, as the Appellant urges, that an employer is not required to prove misconduct to the criminal standard. It need not prove that the employee stole. It is enough that, at the time of the termination, it genuinely believed, on reasonable grounds, that he had committed the misconduct alleged. The Court of Appeal said as much in Kenya Power & Lighting Company Ltd v Wasike (supra), on which the Appellant relies. But the test of reasonable grounds is not satisfied by suspicion alone. The belief must rest on some evidence, fairly weighed against the employee’s explanation. 46

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Elrc Appeal No. E220 Of 2025 The Appellant’s difficulty is that it placed no such evidence before the trial court. 67. In the circumstances of this matter, the Appellant needed to do considerably more than it did. The loss was not discovered by the Appellant. It was reported by the consignee, at the consignee’s premises in Uganda, on the basis of the consignee’s own measurements. The Appellant’s case, in the words of RW1, was that “the Consignee raised an issue with the Respondent Company”. The Respondent’s defence went to the heart of that very report. He said that the shortage was a creature of the consignee’s tank, not of his truck. In such a contest, the consignee’s complaint, and the measurements on which it was founded, were the foundation of the Appellant’s case. They needed to be exhibited. They were not. No correspondence from the consignee, was produced. No dip or ullage readings at loading or at discharge were produced. No investigation report was produced, though the Respondent had been suspended for two months expressly to allow for one. 47

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Elrc Appeal No. E220 Of 2025 68. Witnesses from the Appellant’s end also needed to be availed. The only person who testified for the Appellant was its Human Resource Manager, who did not claim to have been present at the loading or the discharge, or to have any first-hand knowledge of either. The members of the Appellant’s management team who, on the Respondent’s unchallenged account, intervened at the consignee’s premises and secured the release of the truck, were best placed to say what the consignee had found, what explanation was given, and on what basis the matter was resolved. None of them was called, and no explanation was given for their absence. The inference is open, and I draw it, that their evidence would not have supported the Appellant’s case. 69. The one contemporaneous document on the point that the Appellant did produce does not advance its case. Its delivery note for the consignment bears a handwritten notation that 34,052 litres were received. It also bears the consignee’s signature against the pre-printed certification that “all seals were intact, dips were checked and compartments were 48

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Elrc Appeal No. E220 Of 2025 empty after delivery”. That certification is at least as consistent with the Respondent’s account as with the Appellant’s. The schedules of “transit losses” produced by the Appellant, for their part, record variances against a large number of trucks and drivers across its fleet. They do not, without more, show wilful default on the part of this Respondent. 70. The authorities relied upon by the Appellant are distinguishable, as the learned magistrate held. In Mwangi v Multiple Haulier (EA) Limited (supra), the employee had executed a settlement agreement and discharge voucher. In Francis Nyongesa Kweyu (supra), the dishonesty was not disputed. In each, the employer’s belief was grounded on material before the court. Here, it was grounded on an assertion. As for the Respondent’s previous warning letters, which section 45(5)(e) makes relevant, RW1 conceded that most of them bore no acknowledgment of receipt, and none of them was put to the Respondent in any disciplinary forum before the decision to dismiss him was made. 49

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Elrc Appeal No. E220 Of 2025 71. The Appellant bore the burden, under sections 43 and 45(2) of the Act, of proving that the reason for the termination was valid and fair. On the material it chose to place before the trial court, it did not discharge that burden. The termination was not substantively justified. Grounds 1, 2, 3, 12 and 13 of the appeal fail. I do not find that the learned magistrate placed undue reliance on the Respondent’s evidence, or that she took any extraneous matter into account. Save for the finding of constructive dismissal, which I have already addressed, her conclusion that the termination was unfair is sound. (h) Issue (iv): The reliefs 72. The Appellant challenges three awards: notice pay, compensation and the refund of deductions. It does not challenge the awards of unpaid salary for July to October 2023, or of underpayment. Those awards stand. Notice pay 73. The Appellant’s answer to the claim for notice pay was that the Respondent was summarily 50 dismissed for gross

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Elrc Appeal No. E220 Of 2025 misconduct under section 44 of the Employment Act, which permits dismissal without notice. That provision avails an employer only where gross misconduct is established, and established through a fair process. Neither was demonstrated here. The Respondent’s contract, as the learned magistrate noted, provided for termination on one month’s notice or payment in lieu. Section 35(1)(c) of the Act is to the same effect. The Respondent was dismissed without notice, and the award of one month’s salary in lieu of notice, Kshs. 34,302.75, was properly made. It was, moreover, founded independently of the finding of constructive dismissal, on the absence of any notice or payment in lieu. Compensation 74. Compensation under section 49(1)(c) of the Employment Act, of up to twelve months’ gross salary, is a discretionary remedy. In exercising the discretion, the trial court is guided by the factors in section 51 49(4), among them the

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Elrc Appeal No. E220 Of 2025 circumstances in which the termination took place, including the extent to which the employee caused or contributed to it, the length of his service, his reasonable expectation of the length of his employment, and his prospects of securing comparable employment. An appellate court will not interfere with the exercise of a judicial discretion merely because it would itself have exercised it differently. It will interfere only where the trial court misdirected itself, acted on a wrong principle, took into account an irrelevant matter or failed to take into account a relevant one, or where its decision is plainly wrong: Mbogo & another v Shah [1968] EA 93. 75. No such error has been shown. The Appellant’s challenge rested, first, on the contention that the termination was fair, which has failed. It rested, secondly and in the alternative, on the Respondent’s conduct, and on Liz Ayany v Leisure Lodges Limited (supra). That authority does not assist the Appellant. There, the employee’s conduct and her repeated warnings were established. Here, the warning letters were, on RW1’s own concession, largely unacknowledged, and 52

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Elrc Appeal No. E220 Of 2025 they related to matters dating from 2017 to 2020, none of which was shown to have been the subject of any disciplinary finding. The allegation on which the Respondent was dismissed was never proved. 76. Against that, the learned magistrate had regard to relevant considerations: the Respondent’s long service with the Appellant, of some nine years on the most conservative reckoning and of nearly twelve years on the Appellant’s own pleading; the manner of the termination, which followed two months of suspension without pay and without word, a notice to show cause answerable in less than a day, and a hearing that never took place; and the absence of any proven prior disciplinary finding against him. She awarded six months’ salary, Kshs. 205,816.50. I note, in passing, that ground 7 of the appeal describes the award as one of nine months’ salary. It was not. An award of six months’ salary, in these circumstances, is measured and well within the statutory limit. It is not so inordinately high as to represent an erroneous estimate, and I find no basis for interfering with it. Ground 7 fails. 53

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Elrc Appeal No. E220 Of 2025 The refund of deductions 77. Section 19 of the Employment Act sets out the deductions that an employer may lawfully make from an employee’s wages. Any other deduction is unlawful. Among the permitted deductions is an amount in respect of loss or damage occasioned to the employer by the employee’s wilful default, or a shortage of money arising from his negligence or dishonesty. Because the provision permits an employer to take for itself money that is otherwise the employee’s wage, the employer who relies on it bears the burden of showing that each deduction falls within it: that there was a loss, what it was, that it was occasioned by the employee’s default, and that the amount deducted corresponds to it. 78. The Appellant did not discharge that burden. It produced no record linking any of the monthly deductions, itemised in the claim across the years 2019 to 2022, to any identified loss, let alone to one occasioned by the Respondent’s wilful default. The schedules of transit losses it produced record 54

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Elrc Appeal No. E220 Of 2025 variances across its whole fleet. They do not establish fault on the part of the Respondent, and they do not reconcile with the deductions made. 79. The commitment letter of 5th May 2023 does not fill that gap, for three reasons. First, the deductions complained of were made over the preceding years. The letter came after them, and a consent given after the event cannot render lawful a deduction that was unlawful when it was made. Secondly, the letter did not authorise monthly deductions from wages at all. By its own terms, the Respondent asked that the accumulated losses “be recovered from my annual leaves or my terminal benefits”. The Appellant cannot rely on the letter to justify a mode of recovery that the letter did not contemplate. Thirdly, the letter neither quantifies the losses nor identifies the incidents to which they relate. It is not an admission of liability for any particular sum, still less of wilful default. Parties to a contract of employment cannot, by consent, confer on the employer a power of deduction that the statute does not give. 55

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Elrc Appeal No. E220 Of 2025 80. The learned magistrate considered the commitment letter expressly, contrary to what grounds 8 to 10 suggest, and she considered section 19. She held that, in the absence of itemised justification and supporting records, the deductions were not substantiated, and that the letter alone could not justify blanket deductions over an extended period. I agree. Grounds 8, 9, 10 and 11 fail. (i) Issue (v): Costs 81. Under section 12(4) of the Employment and Labour Relations Court Act, the Court may make such orders as to costs as it considers just. Costs ordinarily follow the event. The Respondent has successfully resisted the appeal, and there is no reason why he should be denied his costs. F. DISPOSITION 82. For the foregoing reasons, the appeal lacks merit. The only respect in which the judgment of the trial court is found wanting is the finding of constructive dismissal, which was not open to it on the pleadings. That error does not affect the outcome, since the awards stand on the independent, 56

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Elrc Appeal No. E220 Of 2025 and correct, finding that the Respondent’s employment was unfairly terminated. I make the following orders: (a) The appeal is dismissed. (b) The finding of the trial court that the Respondent was constructively dismissed is set aside. The finding that his employment was unfairly terminated is upheld. (c) The Judgment and Decree of the Principal Magistrate’s Court at Mombasa (Hon. R. Ombata, PM) delivered on 28th October 2025 in Mombasa MCELRC No. E804 of 2023, including the award of Kshs. 688,154.75 together with costs and interest, is otherwise upheld in its entirety. (d) The Appellant shall bear the Respondent’s costs of this appeal. DATED, SIGNED AND DELIVERED at MOMBASA THIS 30TH DAY OF SEPTEMBER 2026 57

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Elrc Appeal No. E220 Of 2025 OCHARO KEBIRA JUDGE 58

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