- Justice Monica Mbarũ ruled that the employer violated Sections 41 and 45 of the Employment Act by failing to subject the driver to a disciplinary hearing
- The court recalculated the driver’s dues using the correct wage for a heavy commercial driver and awarded him KSh 764,307.78 in compensation
- The judge also upheld the employer’s counterclaim and found the driver negligent for the abandoned truck and unreturned tools valued at KSh 2,676,285
Elijah Ntongai, an editor at TUKO.co.ke, has over four years of financial, business, and technology research and reporting experience, providing insights into Kenyan, African, and global trends.
The Employment and Labour Relations Court has delivered a mixed ruling in a dispute between a driver and his ex-employer.
Source: Getty Images
Although Justice Monica Mbaru found that Sidoman Investments Company Limited unfairly dismissed Ishmael Mcharo, she also held the driver financially responsible for abandoning a company truck and causing losses to the employer.
The judgment issued on December 18, 2025 emphasised that even when an employer violates procedural fairness, an employee remains accountable for negligence and custodial duties over company property.
What led to the driver’s dismissal?
Ishmael Mcharo was employed as a driver by Sidoman Investments on October 1, 2019. His duties involved driving a truck and trailer (Registration KCL 784D).
In February 2023, the company alleged he abandoned the assigned vehicle in Mariakani. Following this, he was summoned to a meeting to hand over the vehicle but was not invited to a disciplinary hearing to address the allegations.
His employment was terminated in March 2023 and he sued the employer, claiming unfair termination, underpayment, and various terminal benefits.
The magistrate found that the driver was unfairly terminated and underpaid, and awarded a total claim comprising 10 months’ compensation of KSh 343,027.50, service pay of KSh 51,453, underpayments for three years amounting to KSh 579,339, notice pay of KSh 34,302.75, house allowance for three years of KSh 185,234.50, leave pay of KSh 72,035.75, plus costs and interest.
However, the employer was agrieved and appealed the magistrate’s ruling and presented a counter suit against the truck driver.
The employer counterclaimed that the driver’s negligence and abandonment of truck KCL 784D caused losses of KSh 2,563,285 and that he also failed to return tools of trade, including spare wheels, a jack, and radio accessories valued at KSh 113,000.
What did the judge decide?
After listening to the appeala, Justice Mbarũ agreed with the trial magistrate that the termination was procedurally unfair.
The court found that the company failed to comply with Sections 41 and 45 of the Employment Act, which sets out a clear procedure for terminating an employee.
The driver was only invited to “hand over” the vehicle, not to attend a disciplinary hearing to answer the allegations of abandonment, which the judge found to be a fundamental breach of fair administrative action.
“Where the appellant alleges that they issued notice upon the respondent and he refused to sign, under section 18(5) (b) of the Act, notice should have been served upon the labour officer. The failure to invite the employee to attend and address the alleged misconduct resulted in unfair termination of employment contrary to sections 41 and 45 of the Act. The learned magistrate well addressed the facts, the law, and arrived at a proper conclusion,” the judgment stated.
Consequently, the driver was entitled to compensation for unfair dismissal and for underpayment because his duties
The court recalculated the awards using the correct monthly wage of KSh 39,450.86 for a heavy commercial driver and granted the driver compensation for unfair termination of KSh 394,508.60, notice pay of KSh 39,405.86, service pay of KSh 59,221.15, underpayments for the last 12 months of KSh 233,518.32, accrued leave pay of KSh 37,653.85, bringing the total award to KSh 764,307.78.
Source: UGC
What was the ruling on the employer’s counterclaim?
In a twist, the court fully upheld the employer’s counterclaim. Justice Mbarũ found that the driver, as the custodian of the vehicle, was accountable under Section 19 of the Employment Act for losses arising from his negligence and failure to hand over tools of trade.
“The learned magistrate did not address the counterclaim on the merits despite the appellant calling witnesses who testified to the facts and the losses incurred after the respondent negligently handled the vehicle and failed to hand over his duties. The counterclaim is found with merit. The appellant is entitled to the sum of KSh 2,563,285 for the loss and negligence occasioned by the respondent and for items not handed over, amounting to KSh 113,000,” Justice Mbaru stated.
Since the driver did not file a defence to the specific counterclaim, the court accepted the company’s evidence of losses amounting to KSh 2,676,285.
The court ordered a set-off between the awards; therefore, the KSh 764,308 due to the driver should be deducted from the KSh 2,676,285 he owes the company.
Consequently, the driver has a remaining liability of approximately KSh 1,911,977 payable to Sidoman Investments Company Limited.
Employee wins KSh 1 million after unfair dismissal by international firm
In other news, a Kenyan finance manager was awarded nearly KSh 1 million after the Employment Court ruled his dismissal by a local subsidiary of a Chinese international trade company was unfair.
Stephen Mwangi Maina was fired without notice or a hearing after performing extensive duties for the foreign parent company, Yantai Welworth International Trade Co. Ltd, without extra pay.
Justice Christine Baari awarded him KSh 930,000 in compensation, finding that his employer, Careplus Ltd, failed to prove allegations of misconduct or follow due process.
Source: TUKO.co.ke
