Background
1. Contending that at all material times he was an employee of the Respondent, the Appellant sued the Respondent in the suit hereinabove mentioned, seeking a declaration that his said employment was terminated unfairly at the initiative of the Respondent, and compensatory remedies that were dependent on the alleged unfair termination claim, as well as others that were independent thereof.
2. The Respondent resisted the Appellant’s claim via the Response to Memorandum of Claim dated 18th June, 2024, denying the Appellant’s cause of action against it, and entitlement to the reliefs sought.
3. The matter before the trial court was proceeded with by reference to the pleadings and documents filed with the court pursuant to Rule 59 of the Employment and Labour Relations Court [Procedure] Rules, 2024. After considering the parties’ respective cases, as they emerged from the documents, the learned trial Magistrate dismissed the Appellant’s case with costs.
Appellant’s case in the lower court
4. The Appellant stated that he was employed by the Respondent on 1st May 2012 as a Filler, responsible for filling gas cylinders at the Respondent’s factory in Jomvu, Mombasa County, and earning a monthly salary of Kshs. 27,850.
5. He stated that on 9th June 2023, while on duty, the Respondent’s Plant Manager, Lokesh Singh, asked why he and his colleague had not met their daily targets. They explained that they had been assigned additional duties by the Respondent’s director, Itesh Pandya, and were still working to meet the targets.
6. The Plant Manager then informed them that their services were no longer required and directed them to go home and not return to work.
7. The Appellant further stated that when he and his colleague sought an audience with the director, Itesh Pandya, the director confirmed that their services were no longer required and that the Plant Manager’s decision was final. He was also asked to surrender the Respondent’s property and to leave.
8. The Appellant maintained that no valid reason was given for the termination, no notice was issued, and he was not afforded a disciplinary hearing.
9. He contended that he had worked diligently for about 12 years, had not been allowed to take annual leave, had not been paid house allowance, and had not been issued a certificate of service after dismissal. He therefore blamed the Respondent for unfair and unlawful termination and sought compensation, service pay or gratuity, house allowance, unpaid leave, terminal dues and certificate of service, in the sum of KShs. 1,326, 965.50.
Respondent’s case
10. In his witness statement, the Respondent’s witness, Haron Safari Kombe, stated that the Appellant was employed by the Respondent from 1st January 2023 until 2nd June 2023, when his employment was terminated for reporting to work while drunk.
11. On the night of 25th May 2023 at around 9.00 p.m., he found the Appellant at the Respondent’s premises in a drunken state, unable to perform his duties, and that the Appellant became abusive and insulting when spoken to. He stated that this was not the first incident, as the Appellant had previously been warned over similar conduct.
12. The Respondent maintained that the Appellant was sent home and instructed to report the following day. A notice to show cause was then issued on 26th May 2023, setting out the allegations against him and inviting him to a disciplinary hearing scheduled for 31st May 2023.
13. The Respondent’s witness stated that the Appellant failed to attend the hearing or send a representative. The disciplinary panel considered the allegation, the previous verbal warnings, the safety risk posed by intoxication at work, and resolved to terminate the Appellant’s employment. The Appellant was informed of the termination in writing and advised of his right of appeal, which he did not exercise.
14. The Respondent therefore denied unfair termination and maintained that it followed due process, had a valid reason for termination, and did not owe the Appellant any terminal dues or unpaid salary.
Judgement
15. The trial Court determined that the existence of an employment relationship between the Appellant and the Respondent was undisputed, as it had been acknowledged in the pleadings and corroborated by the documents submitted before the court.
16. The learned trial Magistrate further found that the dismissal of the Appellant’s employment was both substantively and procedurally fair. The Court declined to grant the Appellant any of those reliefs he had sought.
Appeal
17. Dissatisfied with the whole judgment, the Appellant filed this appeal on the grounds;
I. THAT the learned Magistrate erred in law and fact in finding that the Appellant was served with the Show cause letter dated 26th May, 2023, yet the same show cause is dated 26th May, 2023, the same day the Respondent admitted that the Appellant had absconded duty.
II. THAT the learned magistrate erred in law and fact in finding that the Appellant was accorded a fair hearing by being served a show cause letter despite the Respondent through its letter dated 27th May, 2023 and served to the labour office on 30th May,2023 informed the Labour office that as at 30th May, 2023, the Appellant had not reported to work as he had absconded duty.
III. THAT the learned trial Magistrate erred in law and in fact in failing to establish that the Appellant was not served with a show cause letter dated 26th May, 2023, since there was no proof that the Appellant signed a show cause letter dated 26th May,2023, yet he was absent from work as admitted by the Respondent.
IV. THAT the learned magistrate erred in law and in fact in failing to properly scrutinise the documents filed by the Respondent since the same are a product of forgery as demonstrated by paragraph 10 of the minutes, which expressly indicates that the Appellant was dismissed from work on 26th March, 2023, before a disciplinary meeting was purportedly held on 31st May, 2023.
V. THAT the learned magistrate erred in law and in fact in failing to establish that the show cause letter was not signed by the Appellant, since the Respondent did not file any expert report to prove that the signature in the show cause letter and the contract of employment are similar, since the two documents were not signed by the Appellant.
VI. THAT the learned magistrate erred in law and in fact in failing to analyse and scrutinise all documents filed by the Appellant despite bearing such responsibility by virtue of the suit proceeding under Rule 59 of the Employment and Labour Relations Court Rules without viva voce evidence from witnesses.
VII. THAT the learned magistrate erred in law and in fact in failing to award the Appellant terminal dues having been unlawfully dismissed from work by the Respondent.
Analysis and determination
18. As this is a first appeal, this Court is required to reconsider and re-evaluate the evidence placed before the trial court and to arrive at its own independent conclusion, bearing in mind that the trial court had the advantage of hearing the parties and considering the record at first instance.
19. The appeal mainly turns on whether the trial court properly found the Appellant’s dismissal lawful and fair, and whether the court properly declined the reliefs sought.
20. It is important to point out that, when determining whether termination of an employee’s employment or summary dismissal of an employee was lawful and fair, or wrongful, one must consider the presence or absence of two statutory aspects. These are procedural fairness, including whether the process leading to the decision to terminate or dismiss conformed to the procedural fairness prescripts set out in section 41 of the Employment Act, and whether the decision to terminate was with cause, as required under section 43 of the Act, and whether the reason was a valid and fair reason or reasons, as espoused by section 45 of the Act. See. Pius Isindu Machafu v Lavington Security Guards Limited [2017] eKLR.
21. Section 41 of the Employment Act, 2007, provides a mandatory procedure that any employer contemplating terminating an employee’s employment or summarily dismissing an employee must adhere to. The procedure encompasses three components. The notification, hearing, and determination components. The employer must afford the employee an adequate opportunity to prepare to defend himself against the charges while accompanied by a colleague of his choice or a trade union representative, where he is a member of a trade union. The employer shall then consider the representations before making a final decision on the matter.
22. The Appellant submits that a thorough analysis of the material placed before the trial would reveal that the dismissal against him was unfair. Apparently, the learned trial Magistrate did not conduct a thorough analysis and erroneously dismissed his case. The Respondent holds that the trial Court's analysis was proper and the conclusion reached was correct.
23. The Respondent’s case, as brought out under paragraph 8 of its Response to Claim, is that on 25th May 2023, the Appellant was released from duty as he was found to be drunk while on duty, and instructed to report back on the following day, 26th May 2023. This Court notes that in its letter dated 27th May 2023, addressed to the County Labour Officer, the Respondent wrote;
“………..We allowed the employee to go home and report to work the next day, 26th May 2023, he knowingly and intentionally absconded from his duties.”
24. As correctly submitted by the Appellant’s Counsel, the only reasonable conclusion to be drawn from this paragraph of the letter is that, on the said date, the Appellant was not at work. He had absconded. The question that then arises is how the show cause letter, dated the same date, was served on the Appellant? The answer cannot be found in either the Respondent’s pleadings or its witness’s statement. Both are too silent on the manner of service. They only made a general statement that the show cause was served on the Appellant.
25. This Court notes the Respondent’s Counsel’s submissions on the issue of service of the Notice to show cause. The submissions sound largely like evidence. What the learned Counsel raises is neither in the Respondent’s pleadings nor in the witness’s witness statement. Maybe this is the right point to sound a reminder: submissions are never a substitute for evidence. In Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR, the Court of Appeal held:
“Submissions cannot take the place of evidence. The 1st Respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such cause only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented.”
26. In the circumstances of the matter, where service proof of service of the show cause was denied, duty befell the Respondent to prove it. I hold that the Respondent did not.
27. As the show cause letter is alleged to be the document that invited the Appellant to a disciplinary hearing, it is not difficult to hold that the Respondent failed to prove that the Appellant was invited to a disciplinary hearing and failed to attend.
28. I have carefully scrutinised the purported disciplinary hearing minutes. None of the persons alleged to have attended the disciplinary meeting executed the document. Not even the Secretary.
29. To this point, it is clear that the alleged summary dismissal of the Appellant from employment was not carried out in the manner alleged by the Respondent and was not in conformity with the principles of procedural fairness. I am persuaded that the termination was as explained by the Appellant.
30. The Respondent alleged that it summarily dismissed the Appellant on the grounds of intoxication while on duty, and this was set out in the show cause letter and the termination letter issued. I have examined the termination letter. It contains no postal address. It was not explained to the trial Court how it was served on the Appellant. In some situations, procedural fairness becomes interwoven with substantive fairness. The situation that presented itself before the trial Court is one such. Without proof of an invitation to a disciplinary hearing, and more particularly in a matter where the employer and the employee have taken diametrically opposed positions on the manner and reasons for termination, it cannot be concluded that the employer proved the reason[s] for termination/dismissal and that they were valid and fair.
31. By reason of the foregoing premises, this Court comes to the conclusion that the material before the trial Magistrate was not sufficient to enable the conclusion that the Respondent had discharged its legal burden under Sections 41, 43, and 45 of the Employment Act. He erred, therefore, in holding that the summary dismissal of the Appellant was procedurally and substantively fair.
32. I now turn to consider whether the Appellant is entitled to the reliefs he sought, in light of my finding that the termination of his employment was both substantively and procedurally unfair.
33. Section 49[1][c] of the Employment Act, 2007, vests the Court with the authority to award compensation to employees who have successfully challenged their employer’s decision to terminate their employment unfairly or to summarily dismiss them wrongfully. However, the exercise of this authority is discretionary and depends on the circumstances of each case.
34. I considered how the Claimant’s employment was terminated without any proven cause and without adherence to the requirements of procedural fairness, the length of his service, and that, in no proven manner, he did not contribute to the termination. I hold that he is entitled to the compensatory relief under Section 49[1][c] for unfair termination, one month’s gross salary.
35. The Appellant’s employment was terminable under section 35 of the Employment Act by a twenty-eight days’ notice. No doubt, no was issued. He is entitled to notice pay under section 36 of the Act, one month’s salary.
36. I do not fault the reasoning of the learned trial Magistrate for declining to award the other reliefs, which I hereby state were independent of the claim for unfair termination.
37. In the upshot, the Appellant’s appeal herein succeeds in the following terms;
I. A declaration that the termination of the Appellant’s employment was unfair.
II. He shall be paid compensation for unfair termination pursuant to the provisions of Section 49[1][c] of the Employment Act, one month’s gross salary, KShs. 25, 337.50.
III. Interest at court rates from the date of this judgment till full payment.
IV. The Respondent to issue the Appellant a certificate of service within 30 days of this judgment.
V. Costs of this appeal shall be to the Appellant.
Read, signed, and delivered this 4th day of June 2026.