Yejoka Garden Restaurant Limited v Ambuchi

b) The Judgment of the Honourable Principal Magistrate dated 20th March, 2023 be discharged and set aside with costs to the Appellant. 3. It is the Appellant’s case and submission that this being a rst appeal, the duty of the court in reevaluating the evidence on record is as pronounced in the authorities of Peters v Sunday Post Limited [1958] EA 424 and Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123. This is that the appellate court is under an obligation to reconsider and re-evaluate the evidence on record, draw its own independent conclusions on issues of fact and law, and arrive at its own decision, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify. 4. The Appellant contends that the trial judgment is internally inconsistent and therefore unsafe: having found at paragraph 24 that the Respondent absconded duty, the trial court ought to have applied the principle in Joseph Njoroge Kiama v Summer Ltd [2014] eKLR, that an employee who absconds duty cannot maintain a claim founded on unfair termination and the claim should accordingly have been dismissed. The Appellant further places reliance on Eastern Produce (K) Ltd v John Lumumba Mukosero [2008] eKLR for the proposition that the mere ling of a claim is not proof of the matters pleaded therein and that a claimant bears the burden of establishing each head of his claim by evidence. 5. The Respondent’s case and submission is that the Selle principle, properly applied, cuts against the Appellant: an appellate court that has not seen or heard the witnesses must be slow to disturb the trial court’s factual ndings and those ndings, properly read as a whole, support the award in his favour. The Respondent submits that the apparent inconsistency between the nding of absconding at paragraph 24 of the judgment and the subsequent award of damages is a drafting error conned to the declaratory order and does not infect the monetary awards, which are independently supported by the evidence and the admissions of the Appellant’s own witness. 6. The Respondent distinguishes Eastern Produce (supra) on the basis that it concerned the burden of proving unfair termination and not accrued statutory entitlements such as salary arrears, leave pay and house allowance, which the Respondent says he established by evidence. The issues for determination are: 1. Whether the trial court erred in failing to consider the Appellant’s written submissions. 2. Whether the trial court’s nding that the Respondent absconded duty and was fairly and lawfully dismissed is safe, and what consequences follow. 3. Whether the monetary awards made by the trial court were justied on the evidence. 4. What orders should issue, including as to costs. 7. In Peters v Sunday Post Limited [1958] EA 424 and Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, the duty of a rst appellate court was stated as follows: the appellate court is under an obligation to reconsider and re-evaluate the evidence on record, draw its own independent conclusions on issues of fact and law, and arrive at its own decision, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify and should therefore not interfere with credibility ndings unless they are plainly wrong. 8. The 1st issue for determination is whether the trial court failed to consider the Appellant’s written submissions. This ground is not borne out by the record. The trial court expressly records, at paragraph 11 of its Judgment, that the Appellant’s submissions were led and considered. No specic passage of those submissions is identied by the Appellant as having been omitted from the trial court’s analysis. The ground therefore falls by the way side. It fails. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2247/eng@2026-07-31 2

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9. The 2nd issue for determination is whether the trial court’s nding that the Respondent absconded duty is safe and what consequences follow. The two witnesses gave materially dierent accounts of how the employment relationship ended. The Respondent’s evidence was that he was verbally told his services were no longer required. The Appellant’s evidence was that the Respondent stopped reporting for work without notice or explanation. Having heard both witnesses testify and be cross-examined, the trial court weighed these competing accounts and found, at paragraph 24 of its Judgment, that the Respondent had absconded duty. That is a credibility nding by a court that saw and heard the witnesses. This court having not had that advantage, would not ordinarily interfere with such a nding unless it is plainly wrong. On the evidence as recorded, the nding is not plainly wrong and is not disturbed. 10. There is, however, real substance in the narrower point that Ground 4 and Ground 5 also raise. That the trial court arrived at an award of compensation for unfair termination that is logically irreconcilable with its own nding that the Respondent absconded duty. If the Respondent absconded, as the trial court found, then the employment relationship ended by the Respondent’s own act and not by any act of the Appellant; and if that is so, there is no unlawful or unfair termination by the Appellant capable of grounding an award of compensation under Section 49(1)(c) of the Employment Act, 2007. An award of compensation for unfair termination proceeding from a nding of abscondment is self-contradictory. In Joseph Njoroge Kiama v Summer Ltd [2014] eKLR the court conrmed that an employee who absconds duty cannot maintain a claim for unfair termination. On independent re-evaluation, this court nds that the trial court’s award of compensation for unfair termination and the declaration that the dismissal was unlawful and unfair cannot stand alongside its nding of abscondment. Those elements of the judgment are set aside. 11. he 3rd issue for determination is whether the monetary awards made by the trial court were justied on the evidence. This court does not accept the Appellant’s submission that the monetary awards must all fall together with the compensation and the declaration. The awards for salary arrears for July and August, 2021 house allowance, public holidays worked, unpaid leave, and service pay do not depend upon a nding of unfair termination. They are independent statutory entitlements that arise from the existence of the employment relationship and its duration. The question is whether they are supported by the evidence irrespective of how the employment ended. RW1’s own testimony in cross-examination supports each of these awards. That no notice to show cause was issued, that no disciplinary hearing was held and that the Respondent was not paid his salary for July and August, 2021. The Respondent’s evidence of the period of service and the salary gure was not eectively challenged. On independent re-evaluation, each of these awards is supported by the evidence and is upheld. The reliance on Eastern Produce (K) Ltd v John Lumumba Mukosero (supra) for the proposition that the Respondent failed to prove these claims does not assist the Appellant as the authority concerns the burden of proving unfair termination, not the proof of specic, quantied, uncontroverted statutory entitlements such as salary arrears. 12. The court has also noted a second, related inconsistency not raised as a discrete ground of appeal but falling squarely within the scope of this court’s duty on rst appeal. The trial court’s nding that the Respondent absconded duty means that the employment ended by the Respondent’s act. That in turn means that service pay, which accrues on termination of employment, is not payable, since the employment was not terminated by the Appellant within the meaning of Section 35(5) of the Employment Act, 2007. However, the Appellant has not appealed against the service pay award and has not raised any argument going to the legal basis for it. In those circumstances, this court does not disturb that award. An appellate court will not, save in exceptional circumstances, set aside a part of https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2247/eng@2026-07-31 3

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a judgment in a party’s favour where that party has not raised the point and the losing party has not grounded a specic appeal on it. The service pay award stands. 13. I am therefore inclined to partially allow the appeal and order relief as follows; i) A declaration be and is hereby issued that trial court’s declaration that the dismissal of the Respondent by the Appellant was unfair and unlawful is set aside. ii) The award of compensation for unfair termination of employment made by the trial court is also set aside. iii) The monetary awards made by the trial court in favour of the Respondent are upheld and armed as follows; i. Salary arrears for July & August, 2021…………..………..Kshs. 36,000.00 ii. Unpaid house allowance………………………………..…Kshs. 86,400.00 iii. Unpaid public holidays worked………………………….Kshs. 45,962.30 iv. Unpaid leave…………………………………………..…..Kshs. 39,980.70 v. Service pay for 2 years worked……………………..……..Kshs. 20,769.20 Total of award………………………………………….Kshs. 229,112.20 iv) The total sum of Kshs. 229,112.20 shall attract interest at court rates from 20th April, 2023 being the date of the trial court’s judgment until payment in full. v) The order of the trial court awarding the Respondent costs of the suit is set aside. vi) The Appellant is ordered to issue a certicate of service to the Respondent in accordance with the judgment of the trial court. vii) Each party shall bear their costs of this appeal. DELIVERED, DATED AND SIGNED THIS 31ST DAY OF JULY 2026. D. K. NJAGI MARETE JUDGE Appearances: 1. Miss Abok instructed by Gitau & Kaburu Advocates LLP for the Appellant. 2. Miss Achila instructed by Omongo, Gatune & Company Advocates for the Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2247/eng@2026-07-31 4

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