Kisindu v Everflora Limited (Employment and Labour Relations Appeal E051 of 2023) [2025] KEELRC 1036 (KLR)

The reason for termination was known to the appellant and pleaded by both sides in their witness statements and tested in cross-examination. The appellant and CW2 spoke in plural terms about refusing extra work with co-workers, fitting the Employment Act definition of a strike; the strike was unprotected under sections 76 and 78 of the Labour Relations Act, and section 80 rendered participants liable to disciplinary action. Procedurally, the appellant admitted meeting Human Resources and RW1 demonstrated she was heard before dismissal.

Although the statement of defence was a bare denial, the issue of the illegal strike appeared in the appellant's own witness statement, in CW2's statement, and in RW1's statement, and was cross-examined upon. The court therefore found the ground of appeal that the strike issue was unpleaded not to be true.

The public holidays claim was not raised in the witness statement adopted as evidence in chief and was not an issue at the time of the strike. On house allowance, the appellant's evidence was unshaken and the payslip, a statutory document under section 20 of the Employment Act, showed no house allowance item; the respondent did not plead that it provided housing. Under section 31 of the Employment Act the claims were continuing injuries and filed in time.

The facts in the lower court mirrored those in E006 of 2021 under appeal No. E50 of 2021, with the same dismissal letter save for the employee's name, and the employees testified for each other. The court found re-evaluation would be a waste of judicial time and adopted the findings in E50 of 2023.