Muchoki v Board of Management, St.Paul’s Junior Seminary (Appeal E016 of 2021)  KEELRC 13083 (KLR) (31 October 2022) (Judgment)
Neutral citation:  KEELRC 13083 (KLR)
Republic of Kenya
Appeal E016 of 2021
DKN Marete, J
October 31, 2022
Board of Management, St.Paul’s Junior Seminary
(Being an Appeal from the Judgment and Decree of Honourable Nelly W. Kariuki- Principal Magistrate, Delivered on 21st October, 2021 in Nyeri CMELRC No.40 of 2020.)
1.This matter is brought to court vide a Memorandum of Appeal dated 18th November, 2021. It comes out as follows;1.That the learned trial Magistrate erred in law and fact by applying the wrong principles of law thus erroneously dismissing the Appellant’s claim thereby occasioning a miscarriage of justice2.That the learned trial Magistrate erred in law and fact by applying the wrong principles of law thus erroneously dismissing the Appellant’s claim under the head of underpayment, service pay and housing allowance, thereby occasioning a miscarriage of justice.3.That the learned trial Magistrate erred in law and fact by applying the wrong principles of law by failing to make a finding that the Appellant was not accorded due process towards his termination of employment, thereby occasioning a miscarriage of justice.4.That the learned trial Magistrate erred in law and fact by taking into account extraneous and irrelevant considerations thus arriving at erroneous findings in the judgment, thereby occasioning a miscarriage of justice.5.That the learned trial Magistrate failed to address her mind to the pleadings on record and the evidence by the parties, thereby occasioning a miscarriage of justice.6.That the learned trial Magistrate erred in law and fact in failing to evaluate the entire evidence as well as submissions as presented by the Appellant, thereby occasioning a miscarriage of justice.
2.The Appellant’s case and submissions comes out as follows;
3.He further seeks to rely on the authority of Msagha v Chief Justice & 7 Others Nairobi HCMCA No.1062 of 2004 (Lessit, Wendo & Emukule,JJ on 3/11/06)( HCK)  2 KLR 553, the court held thus;
4.Again, in the case of Pius Machafu Isindu v Lavington Security Guards Limited  eKLR, the court stated the following on the burden of proof;
5.The Respondent’s submissions come out thus;
6.It is her further case that section 44(3) and section 44(4) (a) have clearly indicated when an employee can be summarily dismissed.
7.The Respondent further seeks to rely on the provisions of section 44 (4) of the employment Any of the following matters may amount to gross misconduct so as to justify the summary dismissal of an employee for lawful cause, but the enumeration of such matters or the decision of an employer to dismiss an employee summarily under subsection (3) shall not preclude an employer of an employee from respectively alleging or disputing whether the facts giving rise to the same, or whether any other matters not mentioned in this section, constitute justifiable or lawful grounds for the dismissal if: (a) without leave or other lawful cause, an employee absents himself from the place appointed for the performance of his work;
8.In the penultimate, the Respondent seeks reliance of section 47 (5) of the Employment Act, 2007 to foment her case. This comes out thus;
9.It is the Respondent’s case that through and through, the appellant was not able to in evidence establish or demonstrate a case of unlawful termination of employment and therefore this appeal must fall by the wayside.
10.This matter tilts in favour of the Respondents case. This is because a scrutiny of the record of appeal does not come up with any failure or default by the learned magistrate. The trial court thrashed out all the issues at hand and came up with a finding of lawful termination of employment. The Appellant’s has not dispelled this in his case and evidence at this level.
11.I am therefore inclined to dismiss the appeal with orders that each party bears their costs of the same.
DATED AND DELIVERED AT NYERI THIS 31ST DAY OF OCTOBER 2022.D.K.NJAGI MARETEJUDGEAppearances1.Mrs.Magwa instructed by Magua & Mbatha Advocates for the Appellant.2.Mr. Gichuki instructed by D.Mutahi & Associates Advocates for the Respondent.