A. Introduction and the record
1. This is a first appeal against the judgment of the Chief Magistrate's Court at Mombasa (Hon. J.B. Kalo, CM) delivered electronically on 20th February 2025 in Mombasa CM ELRC Cause No. E507 of 2021, Peter Otupa Omutakha v Total Security Surveillance Limited. The trial court found that the Respondent's summary dismissal from employment was unfair and unjust, downgraded it to an ordinary termination, and entered judgment for the Respondent in the sum of Kshs. 107,693/=, together with costs, interest, a certificate of service, and an order compelling the Appellant to transfer full ownership of a company-financed motorcycle to the Respondent.
2. The roles of the parties are reversed on this appeal from what they were at trial, and I flag this at the outset since the parties' own documents on the record are not always consistent in this respect. At trial, Total Security Surveillance Limited — the employer — was the Respondent, and Peter Otupa Omutakha — the employee — was the Claimant. On this appeal, the employer is the Appellant and the employee is the Respondent. I use "Appellant" and "Respondent" throughout in their appellate sense, and where I quote from the record I identify the trial designations (CW1, RW1) so that no confusion arises.
3. The record of appeal is presented in two parts running to some 137 pages in total, comprising the Memorandum of Appeal dated 28th February 2025, the pleadings (Statement of Claim dated 11th August 2021 and the Appellant's Response thereto), the parties' witness statements and documentary exhibits, the typed proceedings recording the hearing before the trial court between 8th March 2023 and 28th November 2023, the parties' final submissions at trial, and the judgment itself. I have read the whole of it, and it is on that record, rather than on the parties' characterisations of it in submissions, that this judgment is founded.
B. The pleaded case and background
4. By a Statement of Claim dated 11th August 2021, the Respondent pleaded that he was employed by the Appellant on 30th May 2018 as a rider supervisor attached to the Appellant's Mombasa branch, and that the Appellant had procured for him, on credit recoverable from his salary, a motorcycle registration number KMER 661B to facilitate his supervisory rounds. He pleaded that on 24th January 2021 he was involved in a road accident while riding that motorcycle, in which another rider was injured; that on 5th March 2021 he was assaulted by the Mombasa Branch Manager, Mr. Henry Kwena, in the course of an office altercation, and that in fleeing the assault he fell into a ditch and fractured his leg, necessitating hospitalisation; that the Branch Manager thereafter contrived a narrative that the Respondent had been intoxicated, and ensured that witnesses to the assault were no longer at the branch; that he was issued with a Notice to Show Cause on 8th April 2021, suspended without pay from 23rd April 2021, subjected to a disciplinary hearing on 10th June 2021, and summarily dismissed by letter of the same date. He claimed declarations that the dismissal was unfair and ought to be downgraded to an ordinary termination, terminal dues, and an order compelling transfer of the motorcycle to him.
5. The Appellant's Response to the Memorandum of Claim denied the claim in its entirety, pleaded (at what the record identifies as paragraph 3B(vi)) that the Respondent had been "Procedurally Dismissed on account of Gross Misconduct" — language plainly describing a dismissal, not a resignation — and set out a chronology materially consistent with the Respondent's own pleaded case: the accident, the civil suit that followed it, the show-cause letter, the suspension, the change of venue of the disciplinary hearing from Nairobi to Mombasa at the Respondent's own request, the hearing itself on 10th June 2021, and the dismissal on that date. The Appellant's own witness list named a single witness, its Human Resource Manager, Ms. Patricia Kinyanjui.
C. The evidence at trial
6. The Respondent testified as CW1 on 8th March 2023, adopting his witness statement dated 11th August 2021. Among other matters, he testified that he was injured on duty in the road accident; that he was thereafter assaulted by the Branch Manager and no action was taken against the Branch Manager; that "the police abstract does not state that I was drunk during the accident. The respondent did not produce a report to show I was drunk"; that the plaint in the civil suit "was not availed during the disciplinary hearing"; that he knew the people who attended the disciplinary meeting and that "the Branch Manager, Mr. Kwena was the chair of the disciplinary hearing but he was the same person who assaulted me"; that "the letter from Coast General does not show I was drunk"; and that "police have not taken action on my complaint for assault". He confirmed that a disciplinary hearing was held on 10th June 2021, that he attended it, and that "the respondent decided to dismiss me. I signed for a disciplinary letter." He confirmed he had received two earlier warning letters, in January 2019 and July 2020, over unrelated matters, and — critically — stated in re-examination that "the previous disciplinary issues were not related to the reason the respondent dismissed me from employment."
7. The Appellant's sole witness, Ms Patricia Kinyanjui, testified as RW1 on 28th November 2023, adopting her witness statement dated 7th June 2022 and producing the Appellant's bundle of documents as exhibits. Her evidence in chief confirmed the chronology of the show-cause letter (8th April 2021), the suspension (23rd April 2021), and the eventual disciplinary hearing (10th June 2021). Under cross-examination, she made a series of concessions that this Court considers decisive to several of the issues canvassed below. She stated: "There was no finding on the assault by the manager." She stated: "There was no report to show the claimant was drunk. The police abstract does not indicate that the claimant was drunk when the accident occurred." She stated that "the case number of litigation referred to in the dismissal letter is not indicated nor is the other party's name provided." She confirmed that "Mr. Kwena was Branch Manager Mombasa Office. The claimant was serving under him," and, tellingly, that "Mr. Kwena is not a witness herein" — that is, the one person whose conduct was central both to the Respondent's assault complaint and to the propriety of his chairing the disciplinary hearing was never called to give an account of himself. In re-examination she confirmed that "the claimant was charged with riding without due care."
D. The trial court's judgment
8. The trial court, having reviewed this evidence, framed the issues for determination as (a) whether the dismissal was unlawful and unfair, and (b) whether the Respondent had proved his claim as itemised. On the first issue, the trial court examined the disciplinary minutes produced by the Appellant and found as follows, in a passage central to this appeal and worth setting out in full:
"...the invitation letter which also served as a suspension letter invited the claimant to attend a disciplinary meeting at the company headquarters in Nairobi on 31.5.2021 at 11 am or at the claimant's most convenient date. However, the minutes produced in evidence were for a disciplinary meeting that took place on 10.6.2021 at TSS Mombasa Office. Notice of change of date and venue, if at all, was not produced. From the said minutes, it is not clear whether the claimant was informed of the charges he was facing and on which the decision to dismiss him was based. The minutes relating to the claimant only recorded what the claimant acknowledged, confirmed and claimed. From the reading of the minutes, one cannot decipher the actual basis/reason that informed the decision to dismiss the claimant. The decision to dismiss the claimant from employment was therefore founded on unknown grounds and cannot be declared to have been fair and just. The reasons given for the dismissal of the claimant from employment as contained in the dismissal letter dated 10.6.2021, are riding the company motorcycle without due care and 'litigation against the company by the other party'. Nothing in the minutes shows that the evidence of the accident in the form of a police abstract and pleadings in the claim by the outsider were placed before the claimant and him being invited to address himself to the same. In fact, the claimant is only said to have confirmed to be true that he was fined for riding without due care. That, coupled with the change of date and venue without notice, rendered the whole disciplinary process a sham."
9. On that basis, the trial court found and held that the dismissal "was not only unfair but it was also unjust,". On quantum, the trial court awarded, head by head: one month's salary in lieu of notice, Kshs. 20,000/=; salary for April, May and part of June 2021, Kshs. 47,692.31; it declined the claim for overtime, finding it already compensated per the payslips in evidence; it declined the claim for 62 days' leave pay, finding the accrual period unclear against the leave application forms produced; and it awarded compensation for unfair termination equivalent to two months' salary, Kshs. 40,000/=, on the footing that "save for the transgressions pointed out above, the respondent attempted as much as possible to adhere to the law and procedure." The global award was Kshs. 107,693/=, together with costs, interest, a certificate of service, and an order for transfer of the motorcycle to the Respondent as sole registered owner, credit being given for any sum already paid toward the Respondent's terminal dues.
E. Grounds of appeal
10. The Memorandum of Appeal raises sixteen grounds, which may conveniently be grouped into four clusters: (i) grounds 1, 3, 4, 11, 12 and 13, which attack the trial court's finding of unfair termination as against the weight of the evidence and the applicable law; (ii) grounds 2, 5, 14 and 15, which advance the more specific — and, as will appear, factually unsustainable — contention that the trial court wrongly "imported" a reason for termination never advanced by the Appellant and ought instead to have found that the Respondent's own "unlawful RESIGNATION WITHOUT NOTICE" ended the relationship, such that the Appellant bore no liability at all; (iii) grounds 6 through 10, which challenge each individual head of relief awarded; and (iv) ground 16, which complains generally that the trial court failed to consider the Appellant's submissions. The Respondent did not file any submissions on this appeal, whether because he considered the trial court's judgment self-evidently sound or for whatever reason; either way, the appeal falls to be determined on the record and on the Appellant's submissions alone, tested against that record.
F. The jurisdiction and duty of a first appellate court
11. It is well settled, and I need only restate rather than elaborately justify, that a first appellate court has both the jurisdiction and the duty to re-evaluate, reassess and re-analyse the evidence on the record and to arrive at its own independent conclusions of both fact and law, giving due allowance for not having seen or heard the witnesses testify — see Selle v Associated Motor Boat Co Ltd [1968] EA 123, and, as restated by the Court of Appeal in Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR and in Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, that the responsibility of an appellate court re-evaluating the evidence is nonetheless to rule upon the evidence actually on record, and not to introduce extraneous matter never presented to or dealt with by the parties at trial. It is precisely because I have undertaken that exercise — going back to the show-cause letter, the suspension letter, the dismissal letter, the email correspondence, the disciplinary minutes as characterised in the trial court's own judgment, and the typed proceedings recording the cross-examination of both witnesses — that I am satisfied the trial court's ultimate finding on liability was correct, for reasons that in several respects go further than, though they are entirely consonant with, the trial court's own stated reasoning; and that its quantification of relief, head by head, was soundly arrived at and ought not to be disturbed.
G. ANALYSIS AND DETERMINATION
Issue One — the mismatch between the show-cause allegations and the grounds of dismissal, and its bearing on procedural and substantive fairness
12. I begin with the point that, in my view, most starkly exposes the unfairness of this dismissal, and which the Appellant's own documents establish beyond any real dispute. The Notice to Show Cause dated 8th April 2021, addressed to the Respondent and signed by RW1, set out two — and only two — allegations. I quote its operative part in full, because everything that follows turns on a careful comparison of its wording with that of the dismissal letter that followed two months later:
"We refer to the incident of 24th January 2021 where you were involved in a serious accident with another rider. It was alleged that you were drunk at the scene of accident. You were both taken to Badria Hospital where you disappeared from the hospital and only the other rider was found. You were later charged in court for riding the motor cycle without care and the same caused bodily injuries to the other rider and his motorcycle no. KMFG 065A.
13. The dismissal letter dated 10th June 2021, also signed by RW1, states in its operative part:
"Refer to the disciplinary meeting held at Mombasa Office.
14. Placing these two documents side by side discloses a mismatch of a kind that goes well beyond a mere difference of emphasis or wording. The show-cause letter's first allegation — the 24th January 2021 accident, said to involve drunkenness at the scene and a subsequent traffic charge — reappears in the dismissal letter, but transformed: the reference to drunkenness has vanished (a point I return to in Issue Three below), and in its place the dismissal letter introduces an entirely new fact never mentioned in the show-cause letter at all — that the accident "led to litigations against the company by the other party." No civil suit, no litigation of any kind arising from the accident, is mentioned anywhere in the Notice to Show Cause of 8th April 2021. Yet by the time of dismissal, "litigations against the company" had become one of only two stated grounds for terminating the Respondent's employment.
15. The show-cause letter's second allegation — that on 5th March 2021 the Respondent reported to work intoxicated and absconded from an incipient disciplinary procedure before falling into a ditch — is, more strikingly still, dropped from the dismissal letter altogether. Nothing in the dismissal letter repeats, endorses, or even alludes to any finding that the Respondent was intoxicated on 5th March 2021, or that he absconded from anything. In its place, the dismissal letter substitutes an entirely different matter concerning that same date: "you claim to have been assaulted by your manager." That is not a restatement, in different words, of the second show-cause allegation; it is the Respondent's own grievance against his manager, recast as though it were itself a ground for the Respondent's dismissal — a matter to which I return in Issue Two below.
16. The consequence is that of the two grounds actually relied upon to dismiss the Respondent, one (the civil litigation) was never put to him at the show-cause stage at all, and the other (the assault complaint) bears no resemblance to the allegation that had been put to him in respect of 5th March 2021. Put shortly: only one of the two show-cause allegations survived, in modified form, into the dismissal letter, and even that surviving allegation had a materially new element grafted onto it that had never been the subject of any notice to the Respondent.
17. Section 41 of the Employment Act, 2007 requires an employer, before terminating an employee's services on grounds of misconduct, to "explain to the employee, in a language the employee understands, the reason for which the employer is considering termination" and to hear and consider the employee's representations on that explanation. The purpose of this requirement, as this Court and its predecessors have repeatedly held, is not the mere mechanical issuance of a letter; it is to ensure that the employee knows, with sufficient particularity, the case he must meet, so that his response — and any representations he makes — can actually engage with the reasons that will determine his fate. That purpose is defeated, root and branch, where the reasons ultimately relied upon at dismissal are not the reasons put to the employee at the show-cause stage. An employee cannot be said to have been given a fair opportunity to answer a charge of "litigation having resulted from the accident" if he was never told, before his dismissal, that this was a matter he needed to address; he is simply confronted with it, for the first time, in the letter that ends his employment. This is precisely the vice identified by the Court of Appeal in Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR, where the Court emphasised the "heavy legal obligations" the Employment Act places on employers to prove both the reason for dismissal (Section 43) and that the reason is valid and fair (Section 45), through the "mandatory and elaborate process... under section 41 requiring notification and hearing before termination" — a process that self-evidently requires the notification to correspond to the eventual reason for dismissal, not merely to some earlier iteration of the employer's suspicions.
18. This defect is not merely procedural in the narrow sense; it is, as the authorities recognise, one of those instances where procedural and substantive fairness are interwoven rather than cleanly separable. In Walter Ogal Anuro v Teachers Service Commission [2013] eKLR, the court held that "for a termination of employment to pass the fairness test, there must be both substantive justification and procedural fairness. Substantive justification has to do with establishment of a valid reason for the termination while procedural fairness addresses the procedure adopted by the employer to effect the termination." Where, as here, the very reason ultimately relied upon for dismissal was never the subject of the show-cause process at all, the defect infects both limbs simultaneously: procedurally, the Respondent was denied any opportunity to respond to the "litigation" ground before it was used to dismiss him; substantively, an employer cannot be said to have "proved" a reason under Section 43 to be valid within the meaning of Section 45(2)(a) where that very reason was assembled, in part, from material introduced only after the employee's only opportunity to respond had closed. The Court of Appeal's observations in Kenfreight (E.A.) Limited v Benson K. Nguti [2016] eKLR are directly in point: an employer is "duty-bound to explain to an employee... the reason or reasons for which the employer is considering termination of the contract," and "an employee is entitled to be heard and his representations, if any, considered by an employer before the decision to terminate his contract of service" (emphasis added) — a sequence that is inverted, and thereby nullified, whenever a new ground surfaces for the first time in the termination letter itself.
19. I therefore find, in agreement with and amplifying the trial court's own conclusion, that the mismatch between the show-cause letter and the dismissal letter is not a trivial drafting inconsistency but an independent and sufficient basis, on its own, for holding that the Respondent's dismissal failed both the procedural and the substantive limbs of Section 45(2) of the Employment Act.
H. Issue Two — the "assault against the manager" as the second stated ground of dismissal
20. I turn to what the dismissal letter calls its second ground: "We also note that on 5th March 2021 you claim to have been assaulted by your manager." Read in isolation this sentence is, frankly, difficult to construe as a ground for dismissal at all, because on its face it does not accuse the Respondent of anything. It records that the Respondent made a complaint — that he was assaulted — and that the Appellant "noted" this complaint. It does not say the complaint was false, fabricated, malicious, or made in bad faith; it does not say the Respondent behaved improperly in making it; it simply notes that the complaint exists, in a document whose ultimate operative effect is to dismiss the very person who made it.
21. Taken at its most charitable to the Appellant, the sentence might be understood as an oblique way of saying that the Appellant disbelieved the assault allegation and regarded it, by implication, as a fabrication amounting to misconduct — perhaps the "intoxication and absconding" narrative that had originally been put to the Respondent in the show-cause letter, recast. But if that is what was meant, it was never said, and RW1's own evidence forecloses that charitable reading in any event. She testified in terms, under cross-examination, that "there was no finding on the assault by the manager." That is a direct admission, by the Appellant's own Human Resource Manager who drafted and signed both the show-cause letter and the dismissal letter, that no conclusive determination — favourable or adverse to the Respondent — was ever made on the truth or falsity of the assault complaint. She further confirmed that Mr. Kwena, the manager the Respondent accused, "is not a witness herein," meaning the one person who could have rebutted or admitted the allegation was never called to do so, at trial or, so far as the record discloses, at the disciplinary hearing either.
22. It follows that the Appellant dismissed the Respondent, in part, on the strength of a matter it admits it never investigated to a conclusion. Section 45(2)(a) of the Employment Act requires the employer to prove that the reason for termination is valid. A "ground" that consists of nothing more than the fact that an employee lodged a complaint — with no finding, made or even attempted, as to whether that complaint had any bearing on his fitness to continue in employment, still less any finding that the complaint was itself an act of misconduct — cannot be a valid reason within the meaning of that provision. Validity presupposes that the employer has actually reached a conclusion capable of justifying the sanction imposed; an unresolved, un-investigated allegation is definitionally incapable of discharging that requirement, because it leaves entirely open the possibility — indeed, on this record, the strong likelihood — that the "ground" relied upon was in truth no more than the fact of the complaint's existence, used as a pretext or aggravating circumstance rather than as a reasoned basis for dismissal.
23. There is a further and independent difficulty. Even assuming, generously to the Appellant, that this second ground was intended to convey a finding that the Respondent's underlying assault complaint was untrue or exaggerated, Section 41 required that this be explained to the Respondent, in terms he could understand, as a reason under consideration for his termination, and that he be heard on it, before the decision was made. Nothing on this record suggests any such explanation was ever given. The show-cause letter of 8th April 2021 accused the Respondent of intoxication and of absconding; it did not accuse him of fabricating an assault complaint, nor could it have, since — on the Appellant's own case — the Respondent's assault complaint against Mr. Kwena appears to have been treated by the Appellant, at the relevant time, as no more than an account he gave of how he came to fall into the ditch, not as a formal grievance requiring adjudication. If, by the time of dismissal, the Appellant had come to treat that complaint itself as a disciplinary matter, Section 41 required that this shift be communicated to the Respondent and that he be given a fair opportunity to respond to it as such — which, on the unchallenged evidence, never occurred.
24. For these reasons I find that the second stated ground of dismissal — the assault complaint against the manager — was neither a valid ground within the meaning of Section 45(2)(a), nor one arrived at through a fair procedure within the meaning of Section 45(2)(c); indeed, on the Appellant's own witness's admission, it was not a "ground" arrived at through any process of adjudication at all, conclusive or otherwise. A dismissal letter that rests, even in part, on an un-investigated complaint by the very employee being dismissed cannot survive scrutiny under Section 45.
I. Issue Three — off-duty conduct as a ground for discipline, and the drunk-riding allegation
25. The remaining stated ground of dismissal is that the Respondent "rode the company financed motorcycle without due care as outlined in the police abstract" and that this "led to litigations against the company by the other party." This raises squarely the question of the circumstances in which conduct occurring away from the employer's premises, and outside the employee's ordinary working duties in the narrow sense, may nonetheless found valid disciplinary action.
26. The Employment Act does not treat off-duty conduct as categorically beyond the reach of workplace discipline, nor does it treat it as automatically within reach. Section 44(3) and (4) of the Act, which enumerate instances of gross misconduct justifying summary dismissal, are instructive by their pattern: they are, almost without exception, anchored either to conduct at the workplace, conduct directed at the employer, its property or its personnel, or conduct that directly undermines the employment relationship itself (wilful neglect, absence without leave, wilful damage to the employer's property, drunkenness rendering the employee unfit for duty, and the like). The common thread is a required nexus between the conduct complained of and the employment relationship — whether because the conduct occurred in the course of duty, because it caused loss or exposure to the employer, because it involved the employer's property, or because it bears directly on the employee's fitness, trustworthiness or capacity to perform his role. Conduct that occurs entirely outside these categories — a purely private matter, with no connection to the employer's business, reputation, property or personnel — is not, without more, a valid ground for disciplinary action, however much an employer might personally disapprove of it.
27. Applying that framework here, the accident of 24th January 2021 does, on the facts of this particular case, disclose a sufficient nexus to found in-principle scrutiny: The Respondent was riding a motorcycle owned (albeit jointly, and being paid off by him) and insured by the Appellant, in the course of his supervisory duties, and the accident exposed the Appellant itself to civil suit and to actual expenditure — the Appellant's own Motorcycle Release Form records a payment of Kshs. 40,000/= "to facilitate repairs of the motorcycle, paid as per insurance terms." An accident of this kind is not analogous to, say, an employee's private conduct in his own time with his own property, wholly disconnected from his employment; it touches the employer's property, its insurance exposure, and its potential vicarious liability. I am accordingly not persuaded that an accident of this character falls outside the class of matters an employer may, in principle, legitimately inquire into.
28. The difficulty for the Appellant is not, therefore, one of principle but of proof. The circumstance that transformed an ordinary road traffic accident — which, standing alone, discloses no misconduct at all, since accidents happen to careful and careless riders alike and the mere fact of being involved in one is not itself a disciplinable act — into an allegation of blameworthy conduct was the assertion that the Respondent was drunk at the time. It is that aggravating allegation, and that allegation alone, that would have elevated this incident from a regrettable occurrence in the course of duty (for which the employer's own insurance, precisely as it did here, is the ordinary and expected mechanism of redress) into a matter of individual culpability capable of justifying summary dismissal. And it is precisely that allegation that collapses entirely on the record.
29. The show-cause letter itself framed the drunkenness allegation in tentative, unproved terms from the outset: "It was alleged that you were drunk at the scene of accident." Nothing in the record converts that allegation into a proved fact. RW1, the Appellant's own witness and the author of both the show-cause and dismissal letters, admitted without qualification under cross-examination: "There was no report to show the claimant was drunk. The police abstract does not indicate that the claimant was drunk when the accident occurred." The Respondent's own evidence is to identical effect: "The police abstract does not state that I was drunk during the accident. The respondent did not produce a report to show I was drunk," and, in re-examination, "the plaint does not state that I was intoxicated at the time of the accident." Nor does the record disclose any medical or toxicological finding to that effect; to the contrary, the Respondent's evidence, unchallenged on this point, is that "the letter from Coast General does not show I was drunk" — a reference, in context, to the medical documentation surrounding his hospitalisation. Where the employer's own witness, the employee, a
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1. This is a first appeal against the judgment of the Chief Magistrate's Court at Mombasa (Hon. J.B. Kalo, CM) delivered electronically on 20th February 2025 in Mombasa CM ELRC Cause No. E507 of 2021, Peter Otupa Omutakha v Total Security Surveillance Limited. The trial court found that the Respondent's summary dismissal from employment was unfair and unjust, downgraded it to an ordinary termination, and entered judgment for the Respondent in the sum of Kshs. 107,693/=, together with costs, interest, a certificate of service, and an order compelling the Appellant to transfer full ownership of a company-financed motorcycle to the Respondent.
2. The roles of the parties are reversed on this appeal from what they were at trial, and I flag this at the outset since the parties' own documents on the record are not always consistent in this respect. At trial, Total Security Surveillance Limited — the employer — was the Respondent, and Peter Otupa Omutakha — the employee — was the Claimant. On this appeal, the employer is the Appellant and the employee is the Respondent. I use "Appellant" and "Respondent" throughout in their appellate sense, and where I quote from the record I identify the trial designations (CW1, RW1) so that no confusion arises.
3. The record of appeal is presented in two parts running to some 137 pages in total, comprising the Memorandum of Appeal dated 28th February 2025, the pleadings (Statement of Claim dated 11th August 2021 and the Appellant's Response thereto), the parties' witness statements and documentary exhibits, the typed proceedings recording the hearing before the trial court between 8th March 2023 and 28th November 2023, the parties' final submissions at trial, and the judgment itself. I have read the whole of it, and it is on that record, rather than on the parties' characterisations of it in submissions, that this judgment is founded.
B. The pleaded case and background
4. By a Statement of Claim dated 11th August 2021, the Respondent pleaded that he was employed by the Appellant on 30th May 2018 as a rider supervisor attached to the Appellant's Mombasa branch, and that the Appellant had procured for him, on credit recoverable from his salary, a motorcycle registration number KMER 661B to facilitate his supervisory rounds. He pleaded that on 24th January 2021 he was involved in a road accident while riding that motorcycle, in which another rider was injured; that on 5th March 2021 he was assaulted by the Mombasa Branch Manager, Mr. Henry Kwena, in the course of an office altercation, and that in fleeing the assault he fell into a ditch and fractured his leg, necessitating hospitalisation; that the Branch Manager thereafter contrived a narrative that the Respondent had been intoxicated, and ensured that witnesses to the assault were no longer at the branch; that he was issued with a Notice to Show Cause on 8th April 2021, suspended without pay from 23rd April 2021, subjected to a disciplinary hearing on 10th June 2021, and summarily dismissed by letter of the same date. He claimed declarations that the dismissal was unfair and ought to be downgraded to an ordinary termination, terminal dues, and an order compelling transfer of the motorcycle to him.
5. The Appellant's Response to the Memorandum of Claim denied the claim in its entirety, pleaded (at what the record identifies as paragraph 3B(vi)) that the Respondent had been "Procedurally Dismissed on account of Gross Misconduct" — language plainly describing a dismissal, not a resignation — and set out a chronology materially consistent with the Respondent's own pleaded case: the accident, the civil suit that followed it, the show-cause letter, the suspension, the change of venue of the disciplinary hearing from Nairobi to Mombasa at the Respondent's own request, the hearing itself on 10th June 2021, and the dismissal on that date. The Appellant's own witness list named a single witness, its Human Resource Manager, Ms. Patricia Kinyanjui.
C. The evidence at trial
6. The Respondent testified as CW1 on 8th March 2023, adopting his witness statement dated 11th August 2021. Among other matters, he testified that he was injured on duty in the road accident; that he was thereafter assaulted by the Branch Manager and no action was taken against the Branch Manager; that "the police abstract does not state that I was drunk during the accident. The respondent did not produce a report to show I was drunk"; that the plaint in the civil suit "was not availed during the disciplinary hearing"; that he knew the people who attended the disciplinary meeting and that "the Branch Manager, Mr. Kwena was the chair of the disciplinary hearing but he was the same person who assaulted me"; that "the letter from Coast General does not show I was drunk"; and that "police have not taken action on my complaint for assault". He confirmed that a disciplinary hearing was held on 10th June 2021, that he attended it, and that "the respondent decided to dismiss me. I signed for a disciplinary letter." He confirmed he had received two earlier warning letters, in January 2019 and July 2020, over unrelated matters, and — critically — stated in re-examination that "the previous disciplinary issues were not related to the reason the respondent dismissed me from employment."
7. The Appellant's sole witness, Ms Patricia Kinyanjui, testified as RW1 on 28th November 2023, adopting her witness statement dated 7th June 2022 and producing the Appellant's bundle of documents as exhibits. Her evidence in chief confirmed the chronology of the show-cause letter (8th April 2021), the suspension (23rd April 2021), and the eventual disciplinary hearing (10th June 2021). Under cross-examination, she made a series of concessions that this Court considers decisive to several of the issues canvassed below. She stated: "There was no finding on the assault by the manager." She stated: "There was no report to show the claimant was drunk. The police abstract does not indicate that the claimant was drunk when the accident occurred." She stated that "the case number of litigation referred to in the dismissal letter is not indicated nor is the other party's name provided." She confirmed that "Mr. Kwena was Branch Manager Mombasa Office. The claimant was serving under him," and, tellingly, that "Mr. Kwena is not a witness herein" — that is, the one person whose conduct was central both to the Respondent's assault complaint and to the propriety of his chairing the disciplinary hearing was never called to give an account of himself. In re-examination she confirmed that "the claimant was charged with riding without due care."
D. The trial court's judgment
8. The trial court, having reviewed this evidence, framed the issues for determination as (a) whether the dismissal was unlawful and unfair, and (b) whether the Respondent had proved his claim as itemised. On the first issue, the trial court examined the disciplinary minutes produced by the Appellant and found as follows, in a passage central to this appeal and worth setting out in full:
"...the invitation letter which also served as a suspension letter invited the claimant to attend a disciplinary meeting at the company headquarters in Nairobi on 31.5.2021 at 11 am or at the claimant's most convenient date. However, the minutes produced in evidence were for a disciplinary meeting that took place on 10.6.2021 at TSS Mombasa Office. Notice of change of date and venue, if at all, was not produced. From the said minutes, it is not clear whether the claimant was informed of the charges he was facing and on which the decision to dismiss him was based. The minutes relating to the claimant only recorded what the claimant acknowledged, confirmed and claimed. From the reading of the minutes, one cannot decipher the actual basis/reason that informed the decision to dismiss the claimant. The decision to dismiss the claimant from employment was therefore founded on unknown grounds and cannot be declared to have been fair and just. The reasons given for the dismissal of the claimant from employment as contained in the dismissal letter dated 10.6.2021, are riding the company motorcycle without due care and 'litigation against the company by the other party'. Nothing in the minutes shows that the evidence of the accident in the form of a police abstract and pleadings in the claim by the outsider were placed before the claimant and him being invited to address himself to the same. In fact, the claimant is only said to have confirmed to be true that he was fined for riding without due care. That, coupled with the change of date and venue without notice, rendered the whole disciplinary process a sham."
9. On that basis, the trial court found and held that the dismissal "was not only unfair but it was also unjust,". On quantum, the trial court awarded, head by head: one month's salary in lieu of notice, Kshs. 20,000/=; salary for April, May and part of June 2021, Kshs. 47,692.31; it declined the claim for overtime, finding it already compensated per the payslips in evidence; it declined the claim for 62 days' leave pay, finding the accrual period unclear against the leave application forms produced; and it awarded compensation for unfair termination equivalent to two months' salary, Kshs. 40,000/=, on the footing that "save for the transgressions pointed out above, the respondent attempted as much as possible to adhere to the law and procedure." The global award was Kshs. 107,693/=, together with costs, interest, a certificate of service, and an order for transfer of the motorcycle to the Respondent as sole registered owner, credit being given for any sum already paid toward the Respondent's terminal dues.
E. Grounds of appeal
10. The Memorandum of Appeal raises sixteen grounds, which may conveniently be grouped into four clusters: (i) grounds 1, 3, 4, 11, 12 and 13, which attack the trial court's finding of unfair termination as against the weight of the evidence and the applicable law; (ii) grounds 2, 5, 14 and 15, which advance the more specific — and, as will appear, factually unsustainable — contention that the trial court wrongly "imported" a reason for termination never advanced by the Appellant and ought instead to have found that the Respondent's own "unlawful RESIGNATION WITHOUT NOTICE" ended the relationship, such that the Appellant bore no liability at all; (iii) grounds 6 through 10, which challenge each individual head of relief awarded; and (iv) ground 16, which complains generally that the trial court failed to consider the Appellant's submissions. The Respondent did not file any submissions on this appeal, whether because he considered the trial court's judgment self-evidently sound or for whatever reason; either way, the appeal falls to be determined on the record and on the Appellant's submissions alone, tested against that record.
F. The jurisdiction and duty of a first appellate court
11. It is well settled, and I need only restate rather than elaborately justify, that a first appellate court has both the jurisdiction and the duty to re-evaluate, reassess and re-analyse the evidence on the record and to arrive at its own independent conclusions of both fact and law, giving due allowance for not having seen or heard the witnesses testify — see Selle v Associated Motor Boat Co Ltd [1968] EA 123, and, as restated by the Court of Appeal in Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR and in Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, that the responsibility of an appellate court re-evaluating the evidence is nonetheless to rule upon the evidence actually on record, and not to introduce extraneous matter never presented to or dealt with by the parties at trial. It is precisely because I have undertaken that exercise — going back to the show-cause letter, the suspension letter, the dismissal letter, the email correspondence, the disciplinary minutes as characterised in the trial court's own judgment, and the typed proceedings recording the cross-examination of both witnesses — that I am satisfied the trial court's ultimate finding on liability was correct, for reasons that in several respects go further than, though they are entirely consonant with, the trial court's own stated reasoning; and that its quantification of relief, head by head, was soundly arrived at and ought not to be disturbed.
G. ANALYSIS AND DETERMINATION
Issue One — the mismatch between the show-cause allegations and the grounds of dismissal, and its bearing on procedural and substantive fairness
12. I begin with the point that, in my view, most starkly exposes the unfairness of this dismissal, and which the Appellant's own documents establish beyond any real dispute. The Notice to Show Cause dated 8th April 2021, addressed to the Respondent and signed by RW1, set out two — and only two — allegations. I quote its operative part in full, because everything that follows turns on a careful comparison of its wording with that of the dismissal letter that followed two months later:
"We refer to the incident of 24th January 2021 where you were involved in a serious accident with another rider. It was alleged that you were drunk at the scene of accident. You were both taken to Badria Hospital where you disappeared from the hospital and only the other rider was found. You were later charged in court for riding the motor cycle without care and the same caused bodily injuries to the other rider and his motorcycle no. KMFG 065A.
13. The dismissal letter dated 10th June 2021, also signed by RW1, states in its operative part:
"Refer to the disciplinary meeting held at Mombasa Office.
14. Placing these two documents side by side discloses a mismatch of a kind that goes well beyond a mere difference of emphasis or wording. The show-cause letter's first allegation — the 24th January 2021 accident, said to involve drunkenness at the scene and a subsequent traffic charge — reappears in the dismissal letter, but transformed: the reference to drunkenness has vanished (a point I return to in Issue Three below), and in its place the dismissal letter introduces an entirely new fact never mentioned in the show-cause letter at all — that the accident "led to litigations against the company by the other party." No civil suit, no litigation of any kind arising from the accident, is mentioned anywhere in the Notice to Show Cause of 8th April 2021. Yet by the time of dismissal, "litigations against the company" had become one of only two stated grounds for terminating the Respondent's employment.
15. The show-cause letter's second allegation — that on 5th March 2021 the Respondent reported to work intoxicated and absconded from an incipient disciplinary procedure before falling into a ditch — is, more strikingly still, dropped from the dismissal letter altogether. Nothing in the dismissal letter repeats, endorses, or even alludes to any finding that the Respondent was intoxicated on 5th March 2021, or that he absconded from anything. In its place, the dismissal letter substitutes an entirely different matter concerning that same date: "you claim to have been assaulted by your manager." That is not a restatement, in different words, of the second show-cause allegation; it is the Respondent's own grievance against his manager, recast as though it were itself a ground for the Respondent's dismissal — a matter to which I return in Issue Two below.
16. The consequence is that of the two grounds actually relied upon to dismiss the Respondent, one (the civil litigation) was never put to him at the show-cause stage at all, and the other (the assault complaint) bears no resemblance to the allegation that had been put to him in respect of 5th March 2021. Put shortly: only one of the two show-cause allegations survived, in modified form, into the dismissal letter, and even that surviving allegation had a materially new element grafted onto it that had never been the subject of any notice to the Respondent.
17. Section 41 of the Employment Act, 2007 requires an employer, before terminating an employee's services on grounds of misconduct, to "explain to the employee, in a language the employee understands, the reason for which the employer is considering termination" and to hear and consider the employee's representations on that explanation. The purpose of this requirement, as this Court and its predecessors have repeatedly held, is not the mere mechanical issuance of a letter; it is to ensure that the employee knows, with sufficient particularity, the case he must meet, so that his response — and any representations he makes — can actually engage with the reasons that will determine his fate. That purpose is defeated, root and branch, where the reasons ultimately relied upon at dismissal are not the reasons put to the employee at the show-cause stage. An employee cannot be said to have been given a fair opportunity to answer a charge of "litigation having resulted from the accident" if he was never told, before his dismissal, that this was a matter he needed to address; he is simply confronted with it, for the first time, in the letter that ends his employment. This is precisely the vice identified by the Court of Appeal in Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR, where the Court emphasised the "heavy legal obligations" the Employment Act places on employers to prove both the reason for dismissal (Section 43) and that the reason is valid and fair (Section 45), through the "mandatory and elaborate process... under section 41 requiring notification and hearing before termination" — a process that self-evidently requires the notification to correspond to the eventual reason for dismissal, not merely to some earlier iteration of the employer's suspicions.
18. This defect is not merely procedural in the narrow sense; it is, as the authorities recognise, one of those instances where procedural and substantive fairness are interwoven rather than cleanly separable. In Walter Ogal Anuro v Teachers Service Commission [2013] eKLR, the court held that "for a termination of employment to pass the fairness test, there must be both substantive justification and procedural fairness. Substantive justification has to do with establishment of a valid reason for the termination while procedural fairness addresses the procedure adopted by the employer to effect the termination." Where, as here, the very reason ultimately relied upon for dismissal was never the subject of the show-cause process at all, the defect infects both limbs simultaneously: procedurally, the Respondent was denied any opportunity to respond to the "litigation" ground before it was used to dismiss him; substantively, an employer cannot be said to have "proved" a reason under Section 43 to be valid within the meaning of Section 45(2)(a) where that very reason was assembled, in part, from material introduced only after the employee's only opportunity to respond had closed. The Court of Appeal's observations in Kenfreight (E.A.) Limited v Benson K. Nguti [2016] eKLR are directly in point: an employer is "duty-bound to explain to an employee... the reason or reasons for which the employer is considering termination of the contract," and "an employee is entitled to be heard and his representations, if any, considered by an employer before the decision to terminate his contract of service" (emphasis added) — a sequence that is inverted, and thereby nullified, whenever a new ground surfaces for the first time in the termination letter itself.
19. I therefore find, in agreement with and amplifying the trial court's own conclusion, that the mismatch between the show-cause letter and the dismissal letter is not a trivial drafting inconsistency but an independent and sufficient basis, on its own, for holding that the Respondent's dismissal failed both the procedural and the substantive limbs of Section 45(2) of the Employment Act.
H. Issue Two — the "assault against the manager" as the second stated ground of dismissal
20. I turn to what the dismissal letter calls its second ground: "We also note that on 5th March 2021 you claim to have been assaulted by your manager." Read in isolation this sentence is, frankly, difficult to construe as a ground for dismissal at all, because on its face it does not accuse the Respondent of anything. It records that the Respondent made a complaint — that he was assaulted — and that the Appellant "noted" this complaint. It does not say the complaint was false, fabricated, malicious, or made in bad faith; it does not say the Respondent behaved improperly in making it; it simply notes that the complaint exists, in a document whose ultimate operative effect is to dismiss the very person who made it.
21. Taken at its most charitable to the Appellant, the sentence might be understood as an oblique way of saying that the Appellant disbelieved the assault allegation and regarded it, by implication, as a fabrication amounting to misconduct — perhaps the "intoxication and absconding" narrative that had originally been put to the Respondent in the show-cause letter, recast. But if that is what was meant, it was never said, and RW1's own evidence forecloses that charitable reading in any event. She testified in terms, under cross-examination, that "there was no finding on the assault by the manager." That is a direct admission, by the Appellant's own Human Resource Manager who drafted and signed both the show-cause letter and the dismissal letter, that no conclusive determination — favourable or adverse to the Respondent — was ever made on the truth or falsity of the assault complaint. She further confirmed that Mr. Kwena, the manager the Respondent accused, "is not a witness herein," meaning the one person who could have rebutted or admitted the allegation was never called to do so, at trial or, so far as the record discloses, at the disciplinary hearing either.
22. It follows that the Appellant dismissed the Respondent, in part, on the strength of a matter it admits it never investigated to a conclusion. Section 45(2)(a) of the Employment Act requires the employer to prove that the reason for termination is valid. A "ground" that consists of nothing more than the fact that an employee lodged a complaint — with no finding, made or even attempted, as to whether that complaint had any bearing on his fitness to continue in employment, still less any finding that the complaint was itself an act of misconduct — cannot be a valid reason within the meaning of that provision. Validity presupposes that the employer has actually reached a conclusion capable of justifying the sanction imposed; an unresolved, un-investigated allegation is definitionally incapable of discharging that requirement, because it leaves entirely open the possibility — indeed, on this record, the strong likelihood — that the "ground" relied upon was in truth no more than the fact of the complaint's existence, used as a pretext or aggravating circumstance rather than as a reasoned basis for dismissal.
23. There is a further and independent difficulty. Even assuming, generously to the Appellant, that this second ground was intended to convey a finding that the Respondent's underlying assault complaint was untrue or exaggerated, Section 41 required that this be explained to the Respondent, in terms he could understand, as a reason under consideration for his termination, and that he be heard on it, before the decision was made. Nothing on this record suggests any such explanation was ever given. The show-cause letter of 8th April 2021 accused the Respondent of intoxication and of absconding; it did not accuse him of fabricating an assault complaint, nor could it have, since — on the Appellant's own case — the Respondent's assault complaint against Mr. Kwena appears to have been treated by the Appellant, at the relevant time, as no more than an account he gave of how he came to fall into the ditch, not as a formal grievance requiring adjudication. If, by the time of dismissal, the Appellant had come to treat that complaint itself as a disciplinary matter, Section 41 required that this shift be communicated to the Respondent and that he be given a fair opportunity to respond to it as such — which, on the unchallenged evidence, never occurred.
24. For these reasons I find that the second stated ground of dismissal — the assault complaint against the manager — was neither a valid ground within the meaning of Section 45(2)(a), nor one arrived at through a fair procedure within the meaning of Section 45(2)(c); indeed, on the Appellant's own witness's admission, it was not a "ground" arrived at through any process of adjudication at all, conclusive or otherwise. A dismissal letter that rests, even in part, on an un-investigated complaint by the very employee being dismissed cannot survive scrutiny under Section 45.
I. Issue Three — off-duty conduct as a ground for discipline, and the drunk-riding allegation
25. The remaining stated ground of dismissal is that the Respondent "rode the company financed motorcycle without due care as outlined in the police abstract" and that this "led to litigations against the company by the other party." This raises squarely the question of the circumstances in which conduct occurring away from the employer's premises, and outside the employee's ordinary working duties in the narrow sense, may nonetheless found valid disciplinary action.
26. The Employment Act does not treat off-duty conduct as categorically beyond the reach of workplace discipline, nor does it treat it as automatically within reach. Section 44(3) and (4) of the Act, which enumerate instances of gross misconduct justifying summary dismissal, are instructive by their pattern: they are, almost without exception, anchored either to conduct at the workplace, conduct directed at the employer, its property or its personnel, or conduct that directly undermines the employment relationship itself (wilful neglect, absence without leave, wilful damage to the employer's property, drunkenness rendering the employee unfit for duty, and the like). The common thread is a required nexus between the conduct complained of and the employment relationship — whether because the conduct occurred in the course of duty, because it caused loss or exposure to the employer, because it involved the employer's property, or because it bears directly on the employee's fitness, trustworthiness or capacity to perform his role. Conduct that occurs entirely outside these categories — a purely private matter, with no connection to the employer's business, reputation, property or personnel — is not, without more, a valid ground for disciplinary action, however much an employer might personally disapprove of it.
27. Applying that framework here, the accident of 24th January 2021 does, on the facts of this particular case, disclose a sufficient nexus to found in-principle scrutiny: The Respondent was riding a motorcycle owned (albeit jointly, and being paid off by him) and insured by the Appellant, in the course of his supervisory duties, and the accident exposed the Appellant itself to civil suit and to actual expenditure — the Appellant's own Motorcycle Release Form records a payment of Kshs. 40,000/= "to facilitate repairs of the motorcycle, paid as per insurance terms." An accident of this kind is not analogous to, say, an employee's private conduct in his own time with his own property, wholly disconnected from his employment; it touches the employer's property, its insurance exposure, and its potential vicarious liability. I am accordingly not persuaded that an accident of this character falls outside the class of matters an employer may, in principle, legitimately inquire into.
28. The difficulty for the Appellant is not, therefore, one of principle but of proof. The circumstance that transformed an ordinary road traffic accident — which, standing alone, discloses no misconduct at all, since accidents happen to careful and careless riders alike and the mere fact of being involved in one is not itself a disciplinable act — into an allegation of blameworthy conduct was the assertion that the Respondent was drunk at the time. It is that aggravating allegation, and that allegation alone, that would have elevated this incident from a regrettable occurrence in the course of duty (for which the employer's own insurance, precisely as it did here, is the ordinary and expected mechanism of redress) into a matter of individual culpability capable of justifying summary dismissal. And it is precisely that allegation that collapses entirely on the record.
29. The show-cause letter itself framed the drunkenness allegation in tentative, unproved terms from the outset: "It was alleged that you were drunk at the scene of accident." Nothing in the record converts that allegation into a proved fact. RW1, the Appellant's own witness and the author of both the show-cause and dismissal letters, admitted without qualification under cross-examination: "There was no report to show the claimant was drunk. The police abstract does not indicate that the claimant was drunk when the accident occurred." The Respondent's own evidence is to identical effect: "The police abstract does not state that I was drunk during the accident. The respondent did not produce a report to show I was drunk," and, in re-examination, "the plaint does not state that I was intoxicated at the time of the accident." Nor does the record disclose any medical or toxicological finding to that effect; to the contrary, the Respondent's evidence, unchallenged on this point, is that "the letter from Coast General does not show I was drunk" — a reference, in context, to the medical documentation surrounding his hospitalisation. Where the employer's own witness, the employee, a
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