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ELRCPartially AllowedMariakani CMELRC Appeal (E039 of 2022 - Record of Appeal)

Tarmal Wire Products v Saboke (Appeal E132 of 2025) [2025] KEELRC 2781 (KLR)

Employment and Labour Relations Court
16 October 2025
1,602 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that an employer claiming a worker absconded must still formally end the employment and report it to a labour officer, or face an unfair termination finding.

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 in Mariakani CMELRC No. E039 of 2022, in which a general labourer was awarded notice pay, leave pay, three months' compensation for unfair termination, costs and interest. The appellant employer contended the respondent was engaged under successive fixed-term contracts, the last running from 25 March to 25 June 2022, and that he absconded on 8 April 2022; a notice to show cause and disciplinary hearing notice were sent by registered mail but unanswered, so the employment ended by abscondment, not termination. The court reaffirmed that fixed-term contracts are lawful under section 10(3) of the Employment Act and that abscondment constitutes gross misconduct under section 44(4)(a), but the employee retains section 41(2) procedural protection. Critically, the employer erred by 'leaving matters at that point': it had a duty to bring formal closure to the employment and to file a report with the labour officer under section 18(5)(b). The finding of unfair termination was therefore upheld, and notice pay and compensation were justified. Leave over six years was not payable beyond the award since leave forms showed leave was taken. Redundancy dues were refused as there was no redundancy. Costs and interest were trimmed: only trial-court costs were allowed, with each party bearing its own costs of the appeal, and interest to accrue only if payment was not made within 30 days. A certificate of service was ordered to issue under each contract per section 51.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned magistrate erred in finding that the respondent proved unfair termination under section 47(5) and that the appellant failed to justify termination under section 43 of the Employment Act
  2. 2.Whether the respondent absconded from duty such that there was no termination by the employer, and whether the employer's notices to show cause and hearing notice sufficed
  3. 3.Whether the respondent was entitled to notice pay, leave pay, damages/compensation for unfair termination and certificate of service
  4. 4.Whether the awards were erroneous given that the respondent was engaged under fixed-term contracts
  5. 5.Whether costs and interest of the suit were properly awarded

Key legal issues

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01

Whether the respondent's dismissal for abscondment was procedurally fair

Holding

The appellant's issuance of a notice to show cause and hearing notice without more amounted to a gross error; the employer must formally close the employment relationship and report dismissal to the labour officer under section 18(5)(b)

Reasoning

Abscondment is gross misconduct under section 44(4)(a) attracting summary dismissal, but the employee is protected by section 41(2), requiring notice to address the misconduct. The employer issued notices by registered mail which went unanswered, but then 'left matters at that point'. The employer must formally end the employment, particularly for a fixed-term contract frustrated by abscondment, following Court of Appeal authority.

p. 3
02

Whether the trial court's finding of unfair termination should stand

Holding

Yes; the learned magistrate properly addressed the facts and the law, and notice pay and compensation were justified

Reasoning

On a first appeal the court reviews the record and reassesses findings while according deference to the trial court's advantage of hearing witnesses. The employment was not disputed; fixed-term contracts were on record and lawful. Despite the abscondment narrative, the employer failed to bring formal closure, so the finding of unfair termination was correct.

p. 3
03

Whether leave pay over 6 years was payable

Holding

Each contract provided 21 leave days per year (1.75 days per month) commensurate with section 28, and leave forms showed leave was taken; the compensation and notice pay suffice

Reasoning

The court found the contracts granted 21 leave days per year, matching the statutory entitlement under section 28. Leave forms, including the last application dated 7 March 2022, confirmed leave was taken. The trial court's award of Ksh. 38,881 for unpaid leave days was retained as compensation.

p. 4
04

Certificate of service

Holding

A certificate of service should issue under each term contract in accordance with section 51 of the Employment Act

Reasoning

The court held that because the respondent served under successive fixed-term contracts, section 51 requires a certificate of service to issue in respect of each contract term rather than a single consolidated certificate.

p. 4

Legal principles established

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  • An employer alleging abscondment has a duty to bring closure to the employment relationship, including reporting the dismissal to the labour officer under section 18(5)(b) of the Employment Act
  • Fixed-term contracts are a lawful and legitimate mode of employment under section 10(3) of the Employment Act
  • In employment claims, costs and interest should only be awarded in rare cases of gross malpractice or unfair labour practices once the employee's rights are restored

Court orders

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  1. 1.Judgment in Mariakani CMELRC No. E39 of 2022 reviewed: compensation Ksh. 38,881
  2. 2.Notice pay Ksh. 9,644
  3. 3.Costs for the trial court awarded
  4. 4.For the appeal, each party to bear its costs
  5. 5.Awards subject to statutory deductions under section 49(2) of the Employment Act
  6. 6.A Certificate of Service to issue under each contract in accordance with Section 51 of the Employment Act
  7. 7.Interest to accrue only if payment is not made within 30 days

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Mariakani Magistrates' Court (CMELRC)
Mariakani CMELRC No. E039 of 2022
Jurisdiction invoked
First appeal to the Employment and Labour Relations Court (appellate review of the trial magistrate's judgment)

Relief refused

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Costs of the appeal to the appellant

Each party to bear its own costs of the appeal

p. 4

Leave pay beyond what was compensated / redundancy severance

Termination was not a redundancy; leave was taken per forms and 3 months' compensation sufficed

p. 4

Costs

Costs for the trial court to the respondent; for the appeal, each party to bear its costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The employer has a duty to bring closure to employment in cases of alleged abscondment or abandonment.
p. 3Employer's duty on abscondment
This was a gross error on the part of the appellant.
p. 3Employer's failure to close employment formally
Fixed-term contracts are a lawful and legitimate mode of employment under section 10(3) of the Act.
Legality of fixed-term contracts
once the employee's rights are restored, costs and interest should only apply where the employer has frustrated the employee's access to their terminal dues and benefits
p. 4Costs in employment claims
Accordingly, judgment in Mariakani CMELRC No. E39 of 2022 is reviewed in the following terms:
p. 4Final orders/disposition

Issues in the judgment

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minor

Discrepancy in the hearing notice date: the notice to show cause was said to follow abscondment on 8 April 2022, yet the hearing notice is dated 24 April 2024

minor

Inconsistent figures between the magistrate's awards as recited and the reviewed award (severance/compensation figure 28,932 vs 38,881; notice pay 9,664 vs 9,644)

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, "Tarmal Wire Products v Saboke (Appeal E132 of 2025) [2025] KEELRC 2781 (KLR)", Case Analysis (2025). Mariakani CMELRC Appeal (E039 of 2022 - Record of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2781/eng@2025-10-16

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