Ponders Limited v Kihumba (Employment and Labour Relations Appeal E049 of 2024) [2025] KEELRC 1699 (KLR)
The bottom line
#A Kenyan employer who doesn't show up with witnesses to defend a dismissal will almost certainly lose, even on appeal.
What this practically means
#Executive summary
#Key legal issues
#Limitation of employment claims under sections 89/90/91 of the Employment Act
Claims for unpaid leave, unpaid maternity leave and compensation for unfair termination were raised within time as the suit was filed within three years of cessation of employment; terminal dues are not a continuing injury but remain claimable within three years of termination
The court adopted the G4S decision clarifying that terminal dues must be claimed within three years of termination. Since employment ceased in March 2022 and the suit was filed within that window, the awarded claims were not time-barred, defeating the appellant's limitation grounds.
Whether the Respondent was wrongfully/unfairly terminated or walked away voluntarily
The finding of wrongful termination stands; the appellant, having failed to call any witnesses or produce documents, did not discharge its burden of justifying the termination
The trial record showed the appellant presented no witnesses. Under sections 45, 41 and 47(5) of the Employment Act and sections 107 and 108 of the Evidence Act, the burden of justifying termination lay on the employer. Pleadings are not evidence; unproved averments cannot found a decision. The appellant therefore failed to disprove the trial court's finding.
Sufficiency of the maternity leave award
The Kshs.75,000 maternity leave award is set aside for lack of evidence and limitation
Unlike the other dues, there was no proof that the claimant was on maternity leave without pay, and the claim related to 2018 and 2019, over three years before filing. The award was therefore reduced accordingly, with interest at 14% per annum.
Legal principles established
#- Unpaid terminal dues, including leave and maternity leave, are claimable within three years of termination and do not constitute a continuing injury
- The employer bears the burden of justifying grounds for termination under section 47(5) of the Employment Act, and failure to adduce evidence is fatal
Court orders
#- 1.Appeal dismissed except as to the award of unpaid maternity leave, which is set aside
- 2.Total award reduced to Kshs.209,615.40 plus interest at 14% per annum from the date of judgment until full payment
- 3.Costs of the lower court trial and costs of the appeal awarded to the Respondent
- On appeal from
- Magistrates' Court (Employment and Labour Relations), Nakuru
- Nakuru MCELRC Case No. E077 of 2023
- Jurisdiction invoked
- First appeal from the Principal Magistrate's Court in an employment dispute under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ponders Limited v Kihumba (Employment and Labour Relations Appeal E049 of 2024) [2025] KEELRC 1699 (KLR)", Case Analysis (2025). Appeal against the Judgment in Nakuru MCELRC Case No. E077 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1699/eng@2025-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.