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ELRCPartially AllowedNot stated on the face of the judgment (appeal from Mombasa CMELRC No. E479 of 2022)· [2025] KEELRC 1240 (KLR)

Muema (The Chairperson of Vescon One Residents Welfare Group) v Nzai (Appeal E250 of 2024) [2025] KEELRC 1240 (KLR)

Employment and Labour Relations Court
30 April 2025
2,063 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that ignoring an absent employee's dismissal process costs employers, but slashed excessive compensation because the trial judge gave no reasons.

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 the trial court in Mombasa CMELRC No. E479 of 2022 delivered on 28 June 2024, which found unfair termination and awarded the respondent 12 months' compensation (Ksh.120,000), house allowance (Ksh.168,000), plus costs and interest. The appellant employer contended the respondent took annual leave, was recalled but failed to resume duty, effectively resigning, and that the house allowance claim was time-barred; the respondent relied on section 47(5) of the Employment Act to shift the burden of justifying termination to the employer. The court held that absence from work is gross misconduct under section 44(4)(a), and that the employer, having issued notices dated 9 and 13 January 2022, took no sanction, issued no resignation notice and made no report to a labour officer under section 18(5)(b). In the absence of statutory notices, the respondent's account that he was sent away on 1 January 2022 prevailed; employment was unfairly terminated. However, the trial court gave no reasons for the maximum 12 months' compensation and filed no record of the employee's conduct under section 45(5), so the award was reduced to 3 months' gross salary (Ksh.46,826.55), with notice pay of Ksh.15,608.85 and service pay of Ksh.45,000. House allowance/underpayment, being a continuing injury, was limited to 12 months before termination (Ksh.67,306.10). Claims for unpaid leave, NHIF dues and overtime failed. Each party was ordered to bear its own costs for the appeal and the trial court.

Key legal issues

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01

Whether employment was unfairly terminated

Holding

Employment was terminated without due process and contrary to law; the employer failed to issue the statutory notices under sections 44 and 18 of the Employment Act

Reasoning

The employer claimed the respondent deserted duty, but after the letters dated 9 and 13 January 2022 it took no further action, issued no sanction and assumed resignation without notice. Under section 44(4)(a) absence is gross misconduct requiring the employee be invited to respond, and under section 18(5)(b) a dismissal report must be delivered to a labour officer. Without the requisite statutory notice, the court must believe the respondent's account that he was sent away on 1 January 2022.

p. 4
02

Quantum of compensation for unfair termination

Holding

The maximum award of 12 months was reduced to 3 months' gross salary (Ksh.46,826.55)

Reasoning

The trial court gave no reasons for awarding the maximum 12 months' compensation. Under Section 45(5) of the Employment Act no record of the employee's conduct was filed. Since the highest award must have a basis and none was given, the appellate court interfered and awarded 3 months' gross salary based on the corrected gross wage of Ksh.15,608.85.

p. 4
03

House allowance and underpayment claims (limitation)

Holding

Only 12 months of underpayment preceding termination is claimable, being a continuing injury under Section 89

Reasoning

The employer did not file a payment statement to support the claimed gross salary of Ksh.11,000; the respondent's November 2019 statement showed Ksh.10,000. Applying the minimum wage for a Mombasa cleaner in January 2022, gross salary should have been Ksh.15,608.85, yielding an underpayment of Ksh.5,608.86 monthly, i.e. Ksh.67,306.10 for the 12 months before termination.

p. 4
04

Costs and interest

Holding

Costs are discretionary under Section 12(4) of the ELRC Act; each party to bear own costs

Reasoning

The trial court awarded costs and interest from the date of filing suit without stating reasons, contrary to Section 12(4) of the Employment and Labour Relations Court Act. The appellate court, having varied the award, ordered each party to bear its own costs for both the appeal and the trial court.

p. 5

Legal principles established

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  • An employee does not terminate employment through absenteeism; the employer must proactively address gross misconduct and issue statutory notices
  • Absence from work without authorisation is gross misconduct under Section 44(4)(a) of the Employment Act requiring the employee to be invited to address it
  • A first appeal requires a broad and exhaustive re-evaluation of the entire record
  • An award of the maximum 12 months' compensation must be supported by reasons; absent reasons, the appellate court may interfere
  • House allowance and underpayment claims are continuing injuries claimable only within 12 months of cessation of employment

Court orders

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  1. 1.Compensation Ksh.46,826.55
  2. 2.Notice pay Ksh.15,608.85
  3. 3.Service pay Ksh.45,000
  4. 4.Underpayments including house allowance Ksh.67,306.10
  5. 5.Each party to bear its costs for the appeal and trial court costs
On appeal from
Employment and Labour Relations Court (trial court, Mombasa)
CMELRC No. E479 of 2022
Jurisdiction invoked
First appeal to the Employment and Labour Relations Court against a judgment of the trial court (magistrate's court, ELRC jurisdiction)

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, "Muema (The Chairperson of Vescon One Residents Welfare Group) v Nzai (Appeal E250 of 2024) [2025] KEELRC 1240 (KLR)", Case Analysis (2025). Not stated on the face of the judgment (appeal from Mombasa CMELRC No. E479 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1240/eng@2025-04-30

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