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ELRCPartially AllowedNot stated in the judgment· [2025] KEELRC 325 (KLR)

Omar t/a Meat Magic Enterprises v Kalu (Appeal E088 of 2024) [2025] KEELRC 325 (KLR)

Employment and Labour Relations Court
6 February 2025
MMM. Mbarũ
2,677 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Mombasa against the judgment of 28 March 2024 in Mombasa CMELRC E132 of 2020, in which the trial magistrate found that the appellant employer unfairly terminated the respondent's employment and awarded Ksh.564,141 in terminal dues with costs and interest. The employer appealed, contending that the respondent absconded duty during the COVID-19 work slowdown, that the burden of proof was misallocated, and that the global award lacked evidential basis. The respondent maintained that he was sent home due to reduced work without notice or terminal dues, and that the appellant never justified the termination under Section 43 of the Employment Act. The court, M. Mbarũ J, identified four issues: burden of proof, unfair termination, justification of the award, and the merit of the appeal. It held that while lay-off for reduced work is a permissible ground under Section 40, the employer must notify the employee of the reasons; and an employer alleging abandonment must trace the employee through the contacts in Section 10(3), issue termination notice to the last known address with a copy to the Labour Officer under Section 18(5)(b), failing which the termination is unfair. Relying on the Supreme Court's decision in Kenya Ports Authority v Munyao, the court held that a global award does not suffice and each claim must be separately assessed. It varied the trial judgment, awarding compensation of Ksh.125,000, notice pay Ksh.25,000, leave pay Ksh.27,500 and public holiday pay Ksh.16,667, while rejecting severance, service pay, house allowance and underpayment claims. Trial costs were upheld; on the appeal each party bears its own costs.

Key legal issues

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01

Burden of proof in unfair termination and effect of lay-off/abandonment

Holding

Though lay-off for reduced work is a justified ground under Section 40, the employer must notify the employee of the reasons; an alleged abandoning employee must still be traced through due process and given notice, failing which termination is unfair.

Reasoning

The employer claimed the respondent deserted duty after being sent home due to COVID-reduced work. The court held that even where an employee abandons employment (gross misconduct under Section 44), the employer bears the burden of initiating the process: contacting the employee via the addresses under Section 10(3), issuing notice of termination to the last known address with a copy to the Labour Officer under Section 18(5)(b). Failure to do so left the termination procedurally unfair and the respondent entitled to notice pay and compensation.

p. 5
02

Validity of a global award of terminal dues

Holding

The trial court's global award of Ksh.564,141 was improper; each head of claim must be assessed separately, resulting in varied specific awards totalling Ksh.194,167 plus costs.

Reasoning

Relying on the Supreme Court's decision in Kenya Ports Authority v Munyao, the court held that remedies under Section 49 of the Employment Act should not be conflated and each claim has a legal underpinning requiring a specific award. The court recalculated compensation at 5 months' gross salary (Ksh.125,000), notice pay (Ksh.25,000), 18 months' leave accumulation (Ksh.27,500), and public holidays worked (Ksh.16,667), while rejecting severance, service pay, house allowance and underpayment claims.

p. 5

Legal principles established

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  • An employer alleging abandonment of employment must bring closure to the employment relationship through due process, including notice to the last known address and a report to the Labour Officer; leaving the employee at large works to the employer's detriment.
  • A global award does not suffice in an employment claim; each claim must be addressed on its merits with a specific award allocated.
  • Leave accumulates only up to 18 months under Section 28(4) of the Employment Act.

Court orders

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  1. 1.Employment terminated unfairly
  2. 2.Compensation Ksh.125,000
  3. 3.Notice pay Ksh.25,000
  4. 4.Leave pay Ksh.27,500
  5. 5.Public holidays Ksh.16,667
  6. 6.Costs for the trial court as awarded
  7. 7.For the appeal, each party bears its costs
On appeal from
Chief Magistrate's Court at Mombasa (ELRC)
Mombasa CMELRC E132 of 2020
Jurisdiction invoked
First appellate jurisdiction of the Employment and Labour Relations Court over a judgment of the magistrates' court (CMELRC E132 of 2020)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Omar t/a Meat Magic Enterprises v Kalu (Appeal E088 of 2024) [2025] KEELRC 325 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/325/eng@2025-02-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.