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ELRCPartially AllowedMilimani ELRC Appeal arising from MCELRC No. E1022 of 2021· [2025] KEELRC 2344 (KLR)

Muoka v Khan (Appeal E232 of 2024) [2025] KEELRC 2344 (KLR)

Employment and Labour Relations Court
24 July 2025
JKJ. W. Keli
4,063 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 was a first appeal to the Employment and Labour Relations Court at Milimani against the judgment of Hon. H. M. Ng'ang'a (PM) delivered on 13th July 2024 in Milimani MCELRC No. E1022 of 2021. The appellant, a domestic worker, had sued the respondent claiming a declaration of unlawful termination and Kshs. 2,273,112 in reliefs. The trial court dismissed the unfair termination claim, awarding only unpaid leave for a maximum of three years at Kshs. 154,077, with costs to the respondent. The appeal was canvassed by written submissions; only the respondent filed. The court, guided by Selle v Associated Motor Boat Co and related first appellate principles, re-evaluated the evidence and found no basis to disturb the trial court's finding that the appellant absconded work rather than being terminated - the appellant's account of being chased away by the respondent's wife was controverted by RW2, a co-worker. The court upheld the trial court on unpaid salary, house allowance and overtime (holding overtime must be proved like special damages). However, it held the trial court erred in denying service pay, following Henry Kamau Ngare v Teachers Service Commission, reasoning that service pay is earned by period of service and is not conditional on the manner of separation. Service pay for 8 complete years (2012-2020) at Kshs. 80,000 was awarded. The court also corrected an error on the face of the record in the leave computation, reducing it to Kshs. 42,000. On costs, it held the award of costs to the respondent was plainly wrong since costs follow the event. The appeal was allowed: judgment entered for the claimant for Kshs. 122,000 with interest, costs of the suit and appeal to the claimant/appellant, and a 30-day stay granted.

Key legal issues

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01

Unfair termination

Holding

The appellant did not prove unfair termination; the trial court's finding that he absconded work was supported by the evidence of RW2 and the appellant's own admissions

Reasoning

Re-evaluating the evidence, the appellant's testimony of being chased away by the respondent's wife was controverted by RW2, a co-worker who corroborated that the appellant simply left and never returned. The appellant admitted receiving cash he had requested on being called to return to work. As a first appellate court, no basis existed to disturb the trial court's findings.

p. 5
02

Service pay under section 35(5) of the Employment Act

Holding

The trial court erred in denying service pay; service pay is not conditional on the manner of separation, and service pay for 8 complete years (2012-2020) at Kshs. 80,000 was awarded on appeal

Reasoning

Section 35(5) and (6) provide social security for employees, earned by period of service and not conditional on the manner of separation. Following Henry Kamau Ngare v Teachers Service Commission, denying accrued service pay on account of the employee's conduct is an unfair labour practice. Employment was found to run from 2012 (not 2009 as the trial court held) to May 2021, yielding 8 complete years.

p. 7
03

Computation of leave award

Holding

The trial court's award of Kshs. 154,077 for three years of untaken leave contained an error on the face of the record; correctly computed at 21/30 x 20,000 x 3 years, the award is Kshs. 42,000

Reasoning

There was no cross-appeal, but the court found a computational error on the face of the record. Applying the formula 21/30 x 20,000 x 3 years, the correct award for three years of untaken leave is Kshs. 42,000, which was substituted.

p. 6
04

Costs of the suit

Holding

The trial court erred in awarding costs to the respondent; the claimant succeeded partially on leave days and was entitled to costs

Reasoning

Costs follow the event. The claimant was awarded on leave days and therefore succeeded in the claim albeit partially, making the award of costs to the respondent plainly wrong. Costs of the suit were awarded to the claimant and costs of the appeal to the appellant.

p. 8

Legal principles established

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  • An appellate court will not interfere with the exercise of discretion by an inferior court unless satisfied the decision is clearly wrong, having misdirected itself or acted on wrong matters
  • An appellate court cannot substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or the judge is plainly wrong
  • Service pay is earned by period of service and is not conditional on the manner of separation or termination of employment
  • Overtime claims must be proved like special damages
  • Costs follow the event; a claimant who succeeds even partially is entitled to costs

Court orders

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  1. 1.The Judgment and Decree of the Hon. H. M. Ng'ang'a (PM) delivered on 13th July, 2024 in Milimani MCELRC No. E1022 of 2021 is set aside and substituted
  2. 2.Judgment entered for the claimant against the respondent for service pay for 8 complete years of service of Kshs. 80,000
  3. 3.Untaken leave days for 3 years awarded at Kshs. 42,000
  4. 4.Total sum of Kshs. 122,000 awarded with interest at court rate from date of filing suit until payment in full
  5. 5.Costs of the suit to the claimant
  6. 6.The appellant is awarded costs of the appeal
  7. 7.Stay of 30 days

Authorities

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Legislation

  • Employment Act, 2007section 35(1)(c), 35(5), 35(6), section 47(5)
  • Evidence Actsection 55(1)
  • Retirement Benefits Actregistered pension or provident fund schemes
  • Pensions Actsection 5
  • Constitution of Kenya, 2010Article 41(1) and 41(2)(b)
  • General Wages (Regulations) Orderhouse allowance 15%

Cases cited (7)

  • Selle v Associated Motor Boat Co
    [1968] EA 123
  • Mbogo v Shah
    [1968] EA Page 93
  • Peters v Sunday Post Ltd
    (1958) EA 424
  • Francis Gicharu Kariri and Peter Njoroge Mairu
    Civil Appeal No. 293 of 2002 at Nairobi (2005) eKLR
  • Kiilu v Isinya Resorts limited
    [2022] eKLR
  • Henry Kamau Ngare v Teachers Service Commission & another
    [2016] KEELRC 1568 (KLR)
  • Esther Wambura Ndegwa v Laboratory and Allied Limited
    [2021] eKLR
On appeal from
Milimani Chief Magistrate's Court (MCELRC)
MCELRC No. E1022 of 2021
Jurisdiction invoked
First appellate jurisdiction over the trial magistrate's court in employment and labour relations matters

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, "Muoka v Khan (Appeal E232 of 2024) [2025] KEELRC 2344 (KLR)", Case Analysis (2025). Milimani ELRC Appeal arising from MCELRC No. E1022 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2344/eng@2025-07-24

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