Kisero v Wabwire (Appeal E190 of 2024) [2025] KEELRC 176 (KLR)
The bottom line
#An employer cannot treat an absent employee as having quit; proper procedure must be followed, and old wage claims filed late in Kenya are time-barred.
What this practically means
#Executive summary
#Key legal issues
#Whether unfair termination of employment was proved
The finding of unfair termination by the trial court was upheld; the employer failed to follow due process when the employee did not resume duty after permitted leave.
The respondent's absence was with permission, permissible under Section 44(4)(a) of the Employment Act. The employer alleged the employee fell ill and abandoned work but took no steps to regularize the absence or issue notice. Sections 41, 43 and 45 of the Employment Act were not complied with, so the trial court's finding of unfair termination was correct.
Quantum of compensation
The 12 months' compensation awarded by the trial court was reduced to 3 months' gross wage (Ksh.52,239.75) because the employee gave no medical evidence for his illness.
Under Section 45(5)(2) of the Employment Act the court must consider the employee's conduct before termination. The respondent did not produce any medical report for his alleged illness, though for 11 years of service the appellant filed no record of any prior misconduct. These considerations justified 3 months' gross wage.
Time-bar on underpayment claims
The underpayment claims were time-barred; continuing injury claims must be filed within 12 months of cessation of the breach.
Employment terminated in October 2021 and the suit was filed on 16 February 2023. Applying G4S and Kenya Railways on continuing injuries and Section 89 of the Employment Act, the respondent had until September 2022 to claim underpayments. The trial court lacked jurisdiction over time-barred claims, so those awards fell away.
Leave pay
The leave pay award was set aside as unjustified.
The respondent admitted his employment ended while he was on annual leave, so claiming pay in lieu was without merit; in any event section 28(4) of the Employment Act caps accrued leave at 18 months.
Service pay
The service pay award of Ksh.22,712.93 was affirmed; the request to enhance it to Ksh.83,280.73 in submissions was rejected.
Service pay is due under Section 35(5) and (6) of the Employment Act where the employer fails to pay statutory dues, and the appellant submitted no evidence of compliance. The respondent pleaded Ksh.22,712.93; parties are bound by their pleadings and cannot amend on appeal or in submissions.
Legal principles established
#- An employee does not terminate his employment through absenteeism or abandonment; the employer must proactively address the absence through due process.
- Where an employee fails to attend work, the employer must issue notice requiring the employee to account for his conduct before terminating employment.
- Claims of continuing injury in employment must be filed within 12 months of cessation of the continuing wrong; time-barred claims deprive the trial court of jurisdiction.
- Parties are bound by their pleadings; claims not pleaded cannot be introduced on appeal or in submissions.
- On a first appeal, the court re-evaluates and re-assesses the record while making due allowance for not having seen or heard the witnesses.
Court orders
#- 1.Compensation Ksh.52,239.75 (reduced from 12 months to 3 months' gross wage)
- 2.Notice pay Ksh.17,141.25
- 3.Service pay Ksh.22,712.93
- 4.Costs of the trial court proceedings
- 5.For the appeal, each party is to bear its costs
- On appeal from
- Chief Magistrate's Court (Employment and Labour Relations Court at Mombasa, CMELRC)
- Mombasa CMELRC No. E076 of 2023
- Jurisdiction invoked
- First appeal from the magistrates' court in employment and labour relations matters (statutory first appellate jurisdiction of the ELRC)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mohamed & 2 others v Pothiwalla t/a Songoro Boat Services (Appeal E019 of 2024) [2025] KEELRC 1950 (KLR)[2025] KEELRC 1950 (KLR)30 Jun 2025applied
- Fontana Limited v Okumu (Appeal E027 of 2023) [2025] KEELRC 1574 (KLR)[2025] KEELRC 1574 (KLR)23 May 2025
Cite this brief
#Cite this brief
Caselaw, "Kisero v Wabwire (Appeal E190 of 2024) [2025] KEELRC 176 (KLR)", Case Analysis (2025). Not stated on the face of the judgment (appeal from Mombasa CMELRC No. E076 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/176/eng@2025-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.