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ELRCPartially AllowedMombasa ELRC Appeal (from Mombasa CMELRC No. E516 of 2024)· [2025] KEELRC 805 (KLR)

Aron v Bokhol Transporters Limited (Appeal E185 of 2024) [2025] KEELRC 805 (KLR)

Employment and Labour Relations Court
13 March 2025
2,997 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 against the judgment of the trial court in Mombasa CMELRC No. E516 of 2024, delivered on 2 August 2024, dismissing a turnman's claims for unfair termination and terminal dues. The appellant, employed from 17 December 2015, claimed he was injured in Uganda in March 2021 and that upon hospital discharge his employment was terminated by a director called Bokhol without notice or dues. He claimed underpayments, notice pay, compensation, leave pay, rest days, public holiday pay, house allowance and a certificate of service. The respondent maintained that employment never terminated and that the appellant remained an employee, relying on a discharge voucher indicating the accident involved a different vehicle. On appeal, the court held that the trial court erred in treating the discharge voucher as justifying fair termination. Where an employee abandons work, the employer must formally end the relationship, including notice to the Labour Office under Section 18(5)(b) of the Employment Act; failure renders termination unfair. Parties cannot contract below the statutory minimum wage, so the Ksh.5,000 wage was an underpayment against the gross Wage Order wage of Ksh.16,857.65. Applying the continuing-injury doctrine under Section 89, the court limited underpayment, rest day and public holiday claims to the 12 months preceding cessation, awarded 33 days' leave under Section 28(4), and allowed compensation of one month's gross wage after considering the appellant's conduct under Section 45(5). Claims for May 2021 salary and separate house allowance were refused. The appeal was partially allowed: the trial judgment was varied, unfair termination declared, awards totalling approximately Ksh.167,483 plus a certificate of service and trial costs issued, with each party bearing its own costs of the appeal.

Key legal issues

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01

Termination of employment despite respondent's assertion of continuing employment

Holding

Where an employee ceases work and demands terminal dues, the employer is obliged to formally end employment; failing which termination is unfair

Reasoning

The respondent maintained the appellant remained an employee even after he demanded terminal dues. The court held that standing back while aware the relationship had ended is an unfair labour practice. The employer should have issued notice under Section 18(5)(b) and deposited dues with the Labour Office. The discharge voucher alone could not exonerate the employer.

p. 5
02

Standard of proof and burden in unfair termination claims

Holding

Employment claims are decided on a balance of probabilities; the employer must justify termination and produce work records

Reasoning

The appellant argued the trial court wrongly required proof beyond reasonable doubt. The appellate court found the trial court's reliance solely on the discharge voucher erroneous, noting the respondent filed no work records on rest days, leave, or wage payments, and that terminal dues must be assessed on the merits under Sections 18(4) and 45.

p. 5
03

Quantum of terminal dues

Holding

Underpayments, notice pay, compensation, leave pay, off days and public holiday pay awarded based on the Wage Order gross wage of Ksh.16,857.65

Reasoning

The agreed wage of Ksh.5,000 was below the statutory minimum for a turnman in Mombasa (basic Ksh.14,658.85 plus house allowance), so underpayment was established. Continuing-injury limitation confined underpayment, rest day and public holiday claims to 12 months back from March 2021. Leave limited to 33 days under Section 28(4).

p. 5
04

Employee's conduct in assessing compensation

Holding

Under Section 45(5), the appellant's failure to account for his whereabouts reduced compensation to one month's gross wage

Reasoning

The appellant did not give a proper account of his whereabouts from 25 March to 25 May 2021. Considering his conduct and the respondent's failure to properly address the reasons for termination, the court awarded compensation at one month's gross wage rather than the 12 months sought.

p. 5

Legal principles established

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  • An employer must formally terminate employment where an employee abandons work; mere desertion does not end the relationship
  • Parties cannot consent to payment below the statutory minimum wage
  • Underpayments and rest days are continuing injuries recoverable within 12 months under Section 89
  • Annual leave does not accrue beyond 18 months absent employer approval

Court orders

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  1. 1.Declaration that employment terminated unfairly
  2. 2.Compensation of Ksh.16,857.65
  3. 3.Notice pay Ksh.16,857.65
  4. 4.Underpayments Ksh.94,861.42
  5. 5.Leave pay Ksh.16,124.75
  6. 6.Off days Kshs.15,848.30
  7. 7.Public holidays Ksh.6,933.65
  8. 8.Certificate of service to be issued
  9. 9.Costs of the trial court proceedings to the appellant
  10. 10.Each party to bear its own costs of the appeal
On appeal from
Magistrates' Court (ELRC), Mombasa
Mombasa CMELRC No. E516 of 2024
Jurisdiction invoked
First appeal from the trial court in employment and labour relations matter

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, "Aron v Bokhol Transporters Limited (Appeal E185 of 2024) [2025] KEELRC 805 (KLR)", Case Analysis (2025). Mombasa ELRC Appeal (from Mombasa CMELRC No. E516 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/805/eng@2025-03-13

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