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ELRCPartially AllowedAppeal against judgment in Nakuru CMELRC No. E030 of 2022· [2025] KEELRC 664 (KLR)

Sierra Flora Limited v Kerubo (Employment and Labour Relations Appeal E029 of 2023) [2025] KEELRC 664 (KLR)

Employment and Labour Relations Court
28 February 2025
AMAnna Ngibuini Mwaure
2,241 words in judgment
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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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Sierra Flora Limited appealed against the judgment of Principal Magistrate K. Kibelion delivered on 2nd October 2023 in Nakuru CMELRC No. E030 of 2022 (Dorcas Kerubo v Sierra Flora Limited), in which the respondent, a former employee who resigned on medical grounds, was awarded Kshs.29,980/= for annual leave and Kshs.48,616.60 for public holidays worked, plus costs. The appeal was disposed of by written submissions. The appellant contended that leave forms and pay slips proved the respondent took her leave and was paid for public holidays, relying on Sections 74 and 28 of the Employment Act and the Reef Hotel and Rogoli Ole Manadiegi authorities on the employer's custody of records and the employee's burden of proof. The respondent maintained that the appellant failed to produce muster rolls or attendance records, that her overtime and holiday work went uncompensated contrary to Sections 27 and 28 of the Employment Act and Section 5(2) of the Labour Institution Act, and that costs properly followed the event. The court, as the first appellate court, adopted the Peters v Sunday Post principles requiring re-evaluation of the evidence. It found the respondent produced no evidence of having applied for and been denied leave, and that the appellant produced leave records, and therefore set aside the Kshs.29,980/= annual leave award. However, it was not persuaded that the respondent was compensated for public holidays worked, and upheld the award of Kshs.48,616.60. The appeal having partially succeeded, the court ordered each party to bear its own costs of both the lower court suit and the appeal. Judgment was delivered virtually at Nakuru on 28th February 2025 by Anna Ngibuini Mwaure J.

Key legal issues

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01

Award of annual leave

Holding

The award of Kshs.29,980/= for annual leave was set aside because the appellant produced leave forms and the respondent produced no evidence of a denied leave application

Reasoning

The court noted the appellant produced a list of leave days (exhibits 52-60) showing the respondent took leave during employment, and there was no evidence she applied for leave and was denied. Relying on Rogoli Ole Manadiegi, the respondent had to prove her claim on a balance of probability even where records were unavailable, but she claimed leave for the entire employment period without proof. The appellant had also accepted the resignation and undertaken to pay pending leave days.

p. 5
02

Award for public holidays

Holding

The award of Kshs.48,616.60 for public holidays worked was upheld

Reasoning

The appellant did not demonstrate that it paid the respondent for the public holidays claimed or gave her days off during those holidays. Since the employer is custodian of such records and none were produced, and the respondent articulated the uncompensated holidays in her claim, the court found the claim proven on a balance of probability and upheld the trial magistrate's award.

p. 5
03

Costs

Holding

Each party to bear their own costs of both the lower court suit and the appeal

Reasoning

As the appeal only partially succeeded - one award set aside and the other upheld - the court apportioned the consequences by ordering each party to meet its own costs in both forums rather than following the general rule that costs follow the event.

p. 5

Legal principles established

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  • An employee claiming leave or overtime must prove their case on a balance of probability even where the employer fails to avail employment records
  • On first appeal the court re-evaluates the evidence and draws its own conclusions while allowing for the trial court's advantage of seeing witnesses

Court orders

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  1. 1.The award of Kshs.29,980/= for annual leave is set aside
  2. 2.The award of Kshs.48,616.60 for public holidays is upheld
  3. 3.Each party to meet their own costs of the lower court case and the present appeal

Authorities

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Legislation

  • Employment ActSection 74(1)(f)
  • Employment ActSection 28
  • Employment ActSection 27 and 27(2)
  • Employment ActSection 5(2) (as attributed in judgment; see dataQualityFlags)
  • Labour Institution ActSection 5(2)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (5)

  • Reef Hotel Limited V Josephine Chivatsi
    [2021] eKLR
  • Rogoli Ole Manadiegi V General Cargo Services Limited
    [2016] eKLR
  • Musaki V Vickers Security and Another
    [2023] KEELRC 982 (KLR)
  • Joseph Oduor Anode V Kenya Red Cross Society
    [2012] eKLR
  • Peters V Sunday Post Limited
    [1958] EA 424
On appeal from
Principal Magistrate's Court at Nakuru
Nakuru CMELRC No. E030 of 2022
Jurisdiction invoked
First appellate jurisdiction over the trial magistrate's judgment in Nakuru CMELRC No. E030 of 2022

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, "Sierra Flora Limited v Kerubo (Employment and Labour Relations Appeal E029 of 2023) [2025] KEELRC 664 (KLR)", Case Analysis (2025). Appeal against judgment in Nakuru CMELRC No. E030 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/664/eng@2025-02-28

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