Ndusi v Ochieng (Appeal E329 of 2024) [2025] KEELRC 2898 (KLR)

e. 3. That the Learned Magistrate was extremely biased against the Appellant and disregarded the submissions made by the Appellant inter alia that: i. That the Respondent confirmed before the Court that he would remit the Claimant's salary at the end of the month. ii. The Respondent admitted that he did not give the Claimant a notice to show cause letter outlining the allegations against him. iii. The Respondent failed to prove a valid and fair reason for terminating the Claimant iv. That further the Respondent equally confirmed to the Court that he had not produced any minutes of any disciplinary hearing that was allegedly accorded to the Claimant. v. That the Respondent admitted to the Court that the Claimant was not issued with any notice and neither was he paid salary in lieu of notice prior to his termination. vi. The Claimant was dismissed in disregard to the provisions of Sections 41 and 45 of the Employment Act, 2007 which renders the termination process unfair and thus unlawful. The Appellant therefore prayed that the judgment of the trial court be set aside and in place thereof allow the appeal and grant orders sought in the statement of claim before the lower court. The appellant further sought to be awarded costs It is proposed that to ask this honourable court for orders that: a. This Appeal be allowed. b. That this Honourable Court do set aside the entire judgment delivered on 25th October 2024 in the Milimani Commercial Chief Magistrate's Court in CMEL No. E1888 of 2021 and be substituted with the orders sought in the Statement of Claim dated 4th November 2021 filed in the trial court, inter alia: i. A declaration that the Appellant sufiered unfair wrongful and unlawful dismissal from employment. ii. One month's salary in lieu of notice Kshs.10,000.00 iii. Compensation for Unutilized leave days Kshs. 25,384.62 iv. Public Holidays worked Kshs. 58,153.85 v. Underpayment (October 2017- September 2021) Kshs. 208,974.75 vi. Housing Allowance (October 2017-September 2021) Kshs.95,013.28 vii. Compensation for wrongful, unfair and unlawful dismissal of employment calculated as twelve months' gross salary being Kshs. 162,874.80 which is calculated as 12x13572.90 viii. Service Pay for the number of years worked since October 2017 to September 2021 (3years x13572.90x1/2) Kshs.20,359.35. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2898/eng@2025-10-24 2

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c. 4. ix. Cost of the Claim before the trial court and interest. x. Interest on (ii)-(viii) above from the date of filing the suit until payment in full at court's rate. Cost of this Appeal be borne by the Respondent. The Appeal was disposed of by written submissions. Appellant’s Submissions 5. The Appellant’s Advocate Ms. Kyeva submitted among others that the trial court applied wrong legal principles and erred in both law and fact in holding that the appellant was a casual labourer and not a regular employee. According to counsel the trial court wrongly relied on the appellant’s Mpesa statements for the months of September, 2021, June 2020 and December, 2018 yet the appellant testified that he did not have money to pay for the Mpesa statement for the entire period worked and that DW1 acknowledged that the appellant was engaged as a shamba boy for the second time after the respondent’s father died in July, 2007 and he further stated that he used to pay the appellant at the end of the month. 6. Counsel further submitted that the respondent did not produce any evidence such as attendance sheet to vouch the claim that the appellant worked for only three days a week. Ms Kyeva further submitted that section 10(7) of the Employment Act provided that in any proceedings if the employer fails to produce a written contract or written particulars of employment, the burden of proving or disproving an alleged term of employment is on the employer. 7. Regarding the contention that the appellant was a casual employee, Counsel relied on section 2 and 37 of the Act and the case of Empire Feeds Ltd v. King’ou KEELRC 1501 (KLR) and submitted that in cross examination the respondent admitted that he would remit the appellant’s salary at the end of the month but maintained the appellant was a casual labourer yet he did not produce any evidence to show any day the appellant did not report to work. In this respect counsel relied on the case of Francis Ndirangu Wachira v. Betty Wairimu [2019]eKLR and the case of Nanyuki Water & Sewerage Company Ltd vs. Benson Mwiti Ntiru & 4 Others [2018]eKLR. Counsel further submitted that the presumption taken by the trial court that the payment of salary at the end of the month was a convenience was a biased one and prejudicial to the appellant as no evidence was adduced to support the allegation that the appellant was a casual labourer. 8. On the question whether the respondent had a valid reason to dismiss the appellant, counsel submitted that it was not disputed that the appellant was discharged from employment over allegations that he did not adhere to respondent’s instructions and allowed the fiower pots to be taken out of his premises. However the appellant informed the trial court that he had never been issued with any instructions and that he never informed the respondents that the pots had been taken because the respondent and the pot maker were business partners and were well known to each other. For this reason counsel submitted that the respondent failed to prove that he had valid reasons to dismiss the appellant hence the termination was unfair. 9. On the issue of procedural fairness during the termination of service, counsel submitted that section 45 of the Act required that even if there was a valid reason for termination, it must be done using a fair procedure. In this regard Counsel relied on the case of National Bank of Kenya vs. Samuel Nguru Mutonya [2019] eKLR and further submitted that there was no indication that the respondent undertook any process akin to the one contemplated under section 41 of the Act. The respondent admitted that he never issued any show cause letter to the appellant and no disciplinary hearing was https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2898/eng@2025-10-24 3

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conducted as contemplated under section 41 of the Act. The trial court therefore erred in finding that the appellant had been granted an opportunity to explain himself before the dismissal. 10. Regarding the issue whether the appellant was entitled to the reliefs sought in the claim, counsel submitted that having established that the appellant was a regular employee and not a casual worker and the respondent having failed to justify the reasons for terminating the appellant’s service, he was entitled to the reliefs sought in the claim. Respondent’s Submissions 11. The respondent’s Counsel Mr. Owuor on the other hand submitted that the learned Magistrate was right in holding that the appellant was employed on casual basis. Counsel in this submission relied on section 2 of the Employment Act and the case of Francis Ndirangu ( already cited by the appellant). According counsel, evidence established that the appellant worked for the respondent three days a week and that he was at liberty to take up casual work from other residents in the compound which was inconsistent with full time employment. Counsel further submitted that the monthly payment was done for convenience rather than a confirmation for full time employment. In this respect counsel also relied on the Nanyuki Water & Sewerage Company case above. According to counsel, the appellant failed to provide evidence that he was in continuous employment for the relevant period. The trial magistrate therefore correctly reached the conclusion that the appellant was a casual employee. Counsel citing the case of Mark William Trevor Price & Caroline Elsa Anne Sturdy vs. John Greaves Hilder [1984] KECA 114 [KLR], urged this court to be reluctant in interfering with the findings of a trial court unless the same is plainly wrong. 12. Regarding the question whether the respondent had a valid reason to terminate the appellant’s service, counsel submitted that the trial court correctly found that the respondent had a valid reason to do so hence satisfied the requirements of section 43(1) of the Act. Counsel further submitted that evidence established that the appellant had been instructed not to allow the fiower pots to be removed from the compound yet the appellant allowed unauthorized individuals to enter the compound and remove the pots. The appellant was observed assisting these individuals to load the pots onto a lorry. These actions, counsel submitted, constituted willful disobedience which warranted summary dismissal. In this respect counsel relied on the case of CMC Aviation Ltd vs. Maohammed Noor [2015]KECA 775 (KLR). Concerning the question whether the respondent followed a fair procedure while terminating the claimant’s service, counsel submitted that the respondent was questioned about the missing pots and was accorded an opportunity to explain his actions but simply stated that “the men came and picked the pots” which failed to address why he allowed this to happen contrary to instructions. 13. On the issue whether the appellant was entitled to the reliefs sought in the claim, Mr. Owuor submitted that learned trial Magistrate correctly found that the appellant was not entitled to the claims sought in the statement of claim. Determination. 14. It is now settled law that the duty of the first appellate court is to re-evaluate the evidence in the subordinate court both on points of law and facts and come up with its own findings and conclusions as was held in Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR where it was stated thus: “ This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2898/eng@2025-10-24 4

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whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way” 15. The trial Court (Hon. Nelly W. Karuiki), had the benefit of listening to the evidence and observing the demeanour of witnesses and came to the decision, the subject of the present appeal. This Court acknowledges the fact that an appeal to it from a trial by the magistrate’s court is by way of retrial. However, in exercising this jurisdiction, the court must guard against acting whimsically and replacing its view of the judgment it could have reached if it tried the matter in the first instance with the finding of the trial court. The decision of the trial court need not be perfect but provided it is in line with the operative law and a reasonable deduction of the evidence presented before it, this court will not interfere simply because as an appellate court it is clothed with jurisdiction to revaluate the evidence and come up with its own findings. 16. The Court has reviewed and considered the judgment of the trial court vis-à-vis the evidence presented before the trial court. The Judgment of the trial court was that the Claimant’s suit was dismissed for lack of merit. The Court particularly found that the appellant was a casual employee and that the respondent had a valid and justifiable reason for terminating the appellant’s contract and in so doing, the respondent followed a fair procedure. The trial court further found that the appellant was not entitled to the reliefs sought in the claim. 17. From the evidence and submissions it emerges that the respondent sent the appellant full month’s pay for December, 2018, June, 2020 and September, 2021. The respondent reasoned such payment as convenient rather than daily payments intended for casual employees. Further the respondent acknowledged that the appellant was engaged as a shamba boy for the second time after the respondent’s father died in July, 2007. 18. Section 2 of the Employment Act defines a casual employee as follows: “ casual employee" means a person the terms of whose engagement provide for his payment at the end of each day and who is not engaged for a longer period than twenty-four hours at a time…” 19. It was not disputed that the appellant had worked for the respondent for quite sometime and that the relationship was conceded by the respondent to have continued when he hired the appellant after the respondent’s father died. The circumstances under which the respondent hired the appellant were not laid bare by the evidence before court apart from the assertion by the respondent that the appellant was a casual employee. Section 10(7) of the Employment Act provides that: “ If in any legal proceedings an employer fails to produce a written contract or the written particulars, prescribed in subsection (1), the burden of proving or disproving an alleged term of employment stipulated in the contract shall be on the employer” This section coupled with the fact that there was no evidence placed before the trial court to show that the appellant was a casual employee and considering that the appellant had a longer relationship with the respondent and that he used to pay the respondent monthly in circumstances he described as “convenient”, removed the appellant from the ambit of a casual employee within the meaning of section 2 of the Act. Further, section 37(1) of the Act provides: “Notwithstanding any provisions of this Act, where a casual employee— a. works for a period or a number of continuous working days which amount in the aggregate to the equivalent of not less than one month; or https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2898/eng@2025-10-24 5

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b. performs work which cannot reasonably be expected to be completed within a period, or a number of working days amounting in the aggregate to the equivalent of three months or more, the contract of service of the casual employee shall be deemed to be one where wages are paid monthly and section 35(1)(c) shall apply to that contract of service. From the foregoing it was erroneous for the trial court to reach the conclusion that the appellant was a casual employee. 20. Regarding reasons for termination, the appellant was terminated for allowing unauthorised persons to carry away pots from the respondent’s premises contrary to express instruction never to allow any unauthorised persons to enter the respondent’s premises. No evidence was however tabled before the court to vouch for the claim that the appellant was so instructed. However taking into account the menial nature of the appellant’s work which was to take care and watch over the appellant’s premises, he was under implied obligation not to allow any unauthorised access or removal of anything from the respondent’s premises. He conceded that some people came to collect the pots from the respondent’s premises but he did not contact the respondent to confirm if they were authorised to do so. He simply assumed that these people were known to the respondent and were his business partners hence authorised to carry away the pots. This was wrong and constituted a valid reason for disciplining the employee. The dismissal may in the view of the Court been disproportionate to the ofience committed but that is not for this court to decide at this point. 21. Concerning procedure for termination, the respondent did not provide any evidence to demonstrate that he subjected the appellant any modicum of procedural fairness perhaps because he wrongly considered him as a casual employee whose contract ended at the end of the day. It is a requirement of the law that even where an employer has justifiable reasons for terminating an employee, he ought to accord such employee some measure of procedural fairness as contemplated under section 41. The procedure need not conform in all respects to a formal process but it ought to be ably demonstrated that the employee was heard or accorded an opportunity to be heard before termination or dismissal from service. In this regard this Court finds and holds that the appellant was unfairly terminated through an unfair procedure. 22. In conclusion this court finds and holds as follows: i. The trial court erred in finding that the appellant was a casual employee; that finding is therefore set aside and substituted with a finding that the appellant by dint of section 37(1) of the Employment Act became a regular employee. ii. The respondent had a valid reasons for terminating the appellant’s service but did so through an unfair procedure. The finding of the trial court that the termination of the appellant was fair for both reason and process is therefore set aside to that extent. iii. The respondent never adduced any evidence that the appellant was registered with NSSF or other pension scheme. 23. Other heads of claims not awarded are deemed disallowed as there was no evidence adduced before the trial court in support thereof. 24. In view of the above findings and considering that the appellant was an unskilled employee and could obtain any other unskilled work elsewhere and taking into account the fact that the respondent had reasonable grounds for terminating the appellant’s service save for the process and the fact that he has had a long relationship with the respondent, the Court will award him as follows: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2898/eng@2025-10-24 6

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i. Two months’ salary as compensation for unfair termination at the rate of Kshs. 13,572.92 which works out to Kshs. 27,145.84 ( Wages Order 2021). ii. One months’ salary in lieu of notice Kshs. 13,572.92. iii. Underpayments for the period worked- Kshs. 208,974.75 (Operative Wage Orders for the period worked) iv. House allowance Kshs. 95,013.28 v. Service Pay Kshs. 20,359 Total 365,066.14 25. The appeal being partially successful, each party shall bear their own costs. 26. It is so ordered. DATED AT NAIROBI THIS 24 TH DAY OF OCTOBER, 2025 DELIVERED VIRTUALLY THIS 24 TH DAY OF OCTOBER, 2025 ABUODHA NELSON JORUM PRESIDING JUDGE-APPEALS DIVISION DIVISION https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2898/eng@2025-10-24 7

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