Board of Management, Sheikh Zayed Children Welfare Centre v Ismael

requiring leave to appeal out of time. The Appellant then sought such leave from the trial court itself, which application was dismissed for want of jurisdiction. The Appellant thereafter properly moved this Court by way of ELRCMISC/E008/2025, in which Hon. Lady Justice Monica Mbaru, by a ruling delivered on 27th March 2025, granted the Appellant fourteen (14) days within which to le and serve its intended appeal, and further granted a stay of execution of the decree conditional upon the deposit in court of the decretal sum of Kshs. 556,475/= on or before 10th April 2025. The present Memorandum of Appeal was led pursuant to that leave. B. The pleaded case and the evidence before the trial court 3. By a Memorandum of Claim dated 15th July 2022, the Respondent (then Claimant) pleaded that she was engaged by the Appellant as a madrassa teacher (Ustadha) on or about 8th May 2014, and that she worked continuously until 11th January 2022, when her services were terminated. She pleaded, and it is not disputed, that she held a succession of written, xed-term contracts: an initial short engagement from 16th January 2014, followed by contracts running from 1st May 2014 to 30th April 2016, then 1st January 2017 to 31st December 2018, and nally 1st January 2019 to 31st December 2020. It is common ground on the face of the documents produced by both sides that no further written contract was issued after 31st December 2020, yet the Respondent continued to work, and continued to be paid her gross monthly salary of Kshs. 34,000/=, without interruption, well into the course of 2021 — a fact amply corroborated by the payslips for January through November 2021 contained in the Respondent's own documents and reproduced in the Record of Appeal. 4. The Appellant's own witness, its Director Mr. Abubakar Hassan Dindia (RW1), conrmed this in his witness statement: "In 2021, the Centre undertook restructuring and all contracts were vetted afresh by the Board... The vetting lasted the whole of 2021 during which the expired contracts were not renewed, including Claimant's." It is thus common cause, on the Appellant's own case, that between 1st January 2021 and 11th January 2022 the Respondent worked without any written contract, xedterm or otherwise, and did so on exactly the same terms — same duties, same hours, same monthly wage — as she had under the expired written contract. 5. On or around 22nd December 2021, the Respondent travelled up-country over the school's thirdterm holiday, her husband having returned from abroad. The record contains a Swahili-language internal report from the Head of the Madrassa Department, Ustadh Suleiman Matata, to the Director, dated 8th January 2022, complaining that the Respondent had not returned to school in time for its reopening on 3rd January 2022 and remained absent as at the date of that report. It is not disputed that the Respondent in fact reported back to work on or about 10th–11th January 2022. 6. On 11th January 2022 the Respondent was called to the Director's oce and handed a letter dated that same day, reference SZWC/2022/001/DIR/AHD, headed "Re: Termination of Contract". I set out its operative part in full, because its wording is central to this appeal: “ Kindly note that your contract with the Centre as a madrassa teacher has expired and will not be renewed due to your unwarranted absenteeism from duty among other reasons. This letter therefore serves as a one-month notice which will expire on 11th January 2022 whereupon you will cease being a sta of Sheikh Zayed Children Welfare Centre. Kindly liaise with the Trustees of the Provident Fund to process your payment as soon as possible after clearing with all the relevant departments of the Centre." 7. It is common ground that this was the only letter of termination issued, and that no separate notice to show cause, and no separate letter inviting the Respondent to a disciplinary hearing, was ever produced in evidence. Indeed, on cross-examination RW1 conceded in terms: "The notice to show cause was not https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2251/eng@2026-07-30 2

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attached... The document is not part of the attachment." No witness for the Appellant asserted that any such document existed but was simply omitted from the trial bundle; the evidence is that none was ever issued. 8. The Appellant relied at trial, and relies again on appeal, on a document styled "Disciplinary Committee Report on Teachers' Conduct" dated 11th December 2021 (exhibit 26 on the Appellant's list of documents). I return to this document in detail below, since its proper characterisation is decisive of much of this appeal. 9. The Respondent testied as CW1 on 7th March 2023. She stated, among other things, that she began work on 16th January 2014 and worked until 11th January 2022; that her last written contract was for the period ending in 2020; that she was never issued with a warning letter; that she was never called to any disciplinary meeting; that she did not sign anywhere on the disciplinary minutes later produced by the Appellant; and that she had sought and been given permission by the deputy (the Mudeer) before she travelled. On cross-examination she maintained that she "was never called to a disciplinary meeting" and "did not sign anywhere." 10. RW1 testied on 29th May 2023, adopting his witness statement. Under cross-examination, he made a number of material concessions. He conceded that "the notice to show cause was not attached." He conceded that "the sta did not get the privilege of signing the report" — that is, that the disciplinary committee report was never signed by the Respondent or, it would appear, by any of the accused sta. He conceded that the termination letter itself contained "a typo", for which "I gave an amended document", though no such amended document was tendered at trial or is to be found anywhere in the Record of Appeal. He conceded that he had personally stamped and signed the letter of 11th January 2022 only on "10.1.2022" notwithstanding its face date. Signicantly, the Appellant's second listed witness, Mr. Suleiman Bakari Matata — the Mudeer of Madrassa, and the one person whose rst-hand account underlies almost every allegation levelled against the Respondent — was never called to testify. The Respondent closed her case on 7th March 2023; the Appellant, having earlier indicated it would call a second witness, closed its own case after RW1 alone on 29th May 2023. C. The trial court's judgment 11. The trial court, having reviewed the pleadings and evidence, correctly directed itself to Sections 43(1) and 45(2) of the Employment Act, 2007, and to the authority of Alphonce Machanga Mwachanya v Operational 680 Ltd [2013] eKLR on the requirements of Section 41, and of Kenfreight (E.A.) Limited v Benson K. Nguti on the burden of proof in termination disputes. I pause to note, for accuracy, that the trial court attributed the Kenfreight holding to "the Supreme Court" in a "2019" decision; the correct citation, as appears from the very authorities relied upon by both parties to this appeal, is Kenfreight (E.A.) Limited v Benson K. Nguti [2016] eKLR, a decision of the Court of Appeal sitting at Malindi. Nothing turns on the misattribution for present purposes, since the proposition of law extracted by the trial court is sound and is not disputed by either party, but I record the correction so that the point is not repeated. 12. The trial court's central and, in my view, entirely justied nding was this: "The process leading to the claimant's termination in the opinion of the court was unfair as the claimant was not subjected to a fair disciplinary hearing and invited to show cause why her contract of employment should be terminated." On that basis, the trial court held that the Respondent had established, on a balance of probabilities, a case of wrongful, unfair and unlawful termination, and proceeded to make the following award: "the claimant is entitled to reliefs sought in the Memorandum of Claim in the sum of Kshs. 473,600 all circumstances considered", together with costs and interest at court rates from the date of ling suit. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2251/eng@2026-07-30 3

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13. It is immediately apparent, and this is a matter to which I return at length below, that the trial court's award of Kshs. 473,600/= is not the sum of the reliefs pleaded — the Memorandum of Claim and the decree extracted from the judgment together particularise a claim of Kshs. 34,000/= for notice pay, Kshs. 116,600/= for leave allowance, Kshs. 119,000/= for service pay and Kshs. 408,000/= for compensation, totalling Kshs. 677,600/=. The judgment does not explain how the gure of Kshs. 473,600/= was arrived at, which of the four heads of claim were allowed in full, which in part, and which (if any) were declined altogether. I shall analyse the signicance of this omission in its own section below. D. Grounds of appeal 14. The Memorandum of Appeal raises, in substance, ve grounds: (i) that the trial court erred in law and fact in nding that the termination was unfair and unlawful; (ii) that it erred in holding the Appellant liable for unfair termination; (iii) that it erred in awarding terminal dues which the Respondent had failed to prove; (iv) that it erred in failing to evaluate the evidence on record, arriving at a wrong conclusion; and (v) that it erred in taking into account irrelevant material. E. The jurisdiction and duty of a rst appellate court 15. This being a rst appeal, this Court sits, in eect, as a court of both fact and law. It is trite, and I need only restate rather than elaborately justify, the principle settled in Selle v Associated Motor Boat Co Ltd [1968] EA 123 and Peters v Sunday Post Ltd [1958] EA 424, and restated by the Court of Appeal in Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR, that a rst appellate court has both the jurisdiction and the duty to re-evaluate, re-assess and re-analyse the evidence on the record and to reach its own independent conclusions of both fact and law, giving due allowance for the fact that it has not seen or heard the witnesses testify and according the trial court's ndings on credibility the deference that entails. This duty is not discharged by a mechanical repetition of the trial court's reasoning, nor by treating the trial court's ultimate gure as a given to be tinkered with at the margins; it requires this Court to go back to the primary evidence itself. 16. It is precisely because I have undertaken that exercise that I am able to say, with respect to the trial court, that while its ultimate nding of unfair termination was correct, several of the submissions advanced before it — and repeated with even greater elaboration on this appeal — ventured well beyond what a proper application of Sections 41, 43, 45 and 47(5) of the Employment Act required it to decide, and that a more exacting analysis of the documents actually produced, in particular the disciplinary committee report and the termination letter, yields a rather dierent — and more securely founded — route to the same ultimate conclusion. Analysis and Determination F. Issue One — the character of the employment relationship after 31st December 2020, and why it matters 17. I begin here because much of the Appellant's submission proceeds, whether consciously or not, on the unspoken premise that the Respondent's rights and the Appellant's obligations at the moment of termination are to be measured against the terms of the last written contract — the one that expired on 31st December 2020 — as though that instrument, though dead, continued in some ghostly way https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2251/eng@2026-07-30 4

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to dene the relationship a full year later. That premise is wrong, and its correction reorders the entire analysis that follows. 18. It is not in dispute that the Respondent continued, from 1st January 2021 until 11th January 2022, to render exactly the same services, for exactly the same monthly wage of Kshs. 34,000/=, on exactly the same working hours, as she had under the expired written contract. Section 35(1) of the Employment Act, 2007 provides, in material part, that a contract of service not being a contract to perform specic work shall, where wages are paid or payable monthly, "be deemed to be... a contract terminable by either party at the end of the period of twenty-eight days next following the giving of notice in writing". This is precisely the default rule the statute supplies for an employment relationship that subsists — as this one plainly did — without any express written term governing notice. Once the written xed-term contract lapsed on 31st December 2020 and was not renewed in writing, but the parties nonetheless continued to perform under it in substance, the relationship that arose by conduct from 1st January 2021 onward was not a continuation of the xed term (which had, by then, denitively ended) but a fresh contract of service for an unspecied period, terminable, by operation of Section 35(1)(c), on notice referable to the monthly pay cycle — in other words, precisely the "month-to-month character" that this Court has been urged to recognise. 19. This is not a mere semantic distinction; it carries real legal consequences, and it is the rst respect in which the trial court's undierentiated approach to the record requires correction. An employer cannot, by the simple expedient of declining to reduce a continuing relationship to writing, insulate itself from the protections Parliament has built into the Act for employees on contracts of unspecied duration. Nor can an employee's earlier years of service under successive xed terms be imported wholesale, for every purpose, into the assessment of what is owed to her in respect of the nal, unwritten chapter of that service — a point of real signicance, as will be seen, to the quantication of leave allowance and compensation below. The two periods — service under the written, xed-term contracts (8th May 2014 to 31st December 2020), and service under the unwritten, indenite, monthto-month contract that followed (1st January 2021 to 11th January 2022) — must be kept analytically distinct, because dierent legal consequences attach to the ending of each. 20. The rst consequence, and the one most immediately relevant, is that the full panoply of procedural and substantive fairness safeguards in Sections 41, 43, 45 and 47(5) of the Employment Act applied to the termination of the Respondent's employment on 11th January 2022 with undiminished force — indeed, arguably with greater force than they would have applied to the mere non-renewal of a xed term that had run its course on its own appointed date. Had the Respondent's last written contract still been subsisting on 11th January 2022 and simply expired of its own accord, the Appellant might have had room to argue, as xed-term jurisprudence in this country generally recognises, that expiry by euxion of time is not, without more, a "termination" attracting the full procedural apparatus of Section 41. But that is not this case. By 11th January 2022 there was no xed term left to expire. There was only an ongoing, unwritten, indenite contract of service, and what the Appellant did on that day was terminate it. A termination of an indenite contract of service, on whatever stated ground, is termination full stop, and it is common ground — indeed it is the Appellant's own pleaded defence at trial (Statement of Defence, paragraph 5(vi)) — that this is precisely how the Appellant itself characterised its own act: "the Respondent declined to renew the Contract based on the Disciplinary Committee Report and therefore issued the Claimant with one month notice of termination of her Contract." One cannot in the same breath issue a notice of termination and disclaim the legal consequences of having terminated. 21. It follows, and I so hold, that the trial court was correct to treat this as a termination attracting the full protective machinery of Sections 41, 43, 45 and 47(5), and any suggestion to the contrary advanced in https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2251/eng@2026-07-30 5

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this appeal — that the Respondent's absence of a written contract somehow diminished the fairness safeguards otherwise due to her — must fail. If anything, an employer who keeps an employee working indenitely, without troubling to reduce the relationship to writing, cannot be heard to complain when the ordinary statutory notice and fairness architecture, rather than some bespoke contractual regime, comes to govern the parting of ways. G. Issue Two — was the process leading to termination fair? 22. Section 41 of the Employment Act provides that an employer shall, before terminating an employee's services on grounds of misconduct, poor performance or physical incapacity, "explain to the employee, in a language the employee understands, the reason for which the employer is considering termination" and, further, allow the employee a representative of her choosing to be present during that explanation, and hear and consider any explanation given. Section 43(1) places the burden of proving the reason for termination squarely on the employer, on pain of the termination being "deemed to have been unfair". Section 45(2) provides that a termination is unfair unless the employer proves that the reason for it was valid, that it was fair, and that the employment was terminated in accordance with fair procedure. Section 47(5) allocates the burden thus: the employee need only assert that an unfair termination has occurred; it is for the employer to justify the grounds relied upon. As the Court of Appeal put it in Kenfreight (E.A.) Limited v Benson K. Nguti [2016] eKLR, in a passage the trial court itself (albeit under a mistaken citation) correctly extracted and applied: "it is considered unfair to terminate a contract of service if the employer fails to demonstrate that the reason for the termination is valid and fair... That the employer must also prove that the termination was in accordance with fair procedure and that the burden on the employee is only limited to asserting that an unfair termination has occurred." 23. The Appellant's answer to this burden, at trial and on appeal, is the Disciplinary Committee Report dated 11th December 2021. It is upon this single document that the entire edice of the Appellant's defence to the unfair-termination claim rests. It therefore repays the closest possible scrutiny — and the user's direction that this Court "critically examine" the minutes and "conclude" is, in my respectful view, entirely warranted by what a close reading of the document actually discloses. 24. Four features of that report, taken together, persuade me that it cannot, and does not, discharge the Appellant's burden under Sections 41, 43 and 45. 25. First, the report is not, and does not purport to be, a hearing convened for the Respondent. It records a general disciplinary sweep held on 11th December 2021, at which the Committee dealt with ten dierent members of sta for entirely unrelated allegations — teachers borrowing money from pupils, teachers cheating in national examinations, a teacher losing examination scripts, teachers arriving late for a graduation ceremony. The Respondent's name appears as item 4 on a list of ten, accused of "insubordination, late coming and unwarranted absenteeism from duty". Nothing in the document's structure suggests it was convened to hear her case specically, still less that the process aorded her the individualised attention Section 41 contemplates. 26. Second — and this is the most telling feature of all — a careful, clause-by-clause comparison of how the report deals with the Respondent against how it deals with every other member of sta named in it reveals a stark and, I think, decisive asymmetry. In respect of Mr. Suleiman Odundo, accused of losing examination scripts, the report states in terms: "He was summoned before the disciplinary committee and he gave the following reasons for his action" — followed by four numbered points in his own voice. In respect of the teachers accused of cheating in examinations, the report records: "When summoned, they confessed doing that in order to beat the deadline..." In respect of Md. Maimuna Mohammed, accused of altering examination results, the report records that "she denied everything telling Md. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2251/eng@2026-07-30 6

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Fatma that she is accusing her falsely" and that she oered an explanation for her conduct. In every one of these instances the report armatively records the accused member of sta's own appearance, and her or his own words, before the Committee. By stark contrast, the entry against the Respondent records only this: "The Mudeer of Madrassa, Ustadh Suleiman Matata revealed that ustadha Sherifa is an incorrigible late comer... He referred to an incident on 4/08/2021... He asked her to respect school policies and procedures. She nonchalantly promised to turn over a new leaf." Every sentence in that passage is attributed to the Mudeer — what he "revealed," what he "referred to," what he "asked." There is no sentence recording that the Respondent appeared before the Committee on 11th December 2021, was informed of the specic allegations, or was invited then and there to respond to the Committee itself. The passage reads, on a fair construction, as the Mudeer's own second-hand narration to the Committee of a private conversation he says he once had with her — not as a record of her having been heard by the body that was supposedly disciplining her. A document that meticulously distinguishes, for nine of the ten persons it addresses, between an allegation and that person's own recorded response to it, but which for the tenth person — the Respondent — records only the accuser's narrative and never the accused's own voice, cannot be read as evidence that the tenth person was given the hearing the other nine plainly were. 27. Third, the report's own recommendations conrm that, as of 11th December 2021, no nal disciplinary sanction had been visited upon the Respondent at all. The Committee recommended, prospectively, that "Md. Maimuna & Sheria should get warning letters in order to curb their latecoming and absconding duties" and that "This Discipline Committee Report should be used as a reference for renewal of contracts." Both recommendations are framed in the future tense, as things yet to be done or to be borne in mind for a later decision — not as a record of a hearing that had already concluded with a nding against her, still less as a decision to terminate. 28. Fourth, and perhaps most fundamentally, the report is dated 11th December 2021 — weeks before the very conduct relied upon in the termination letter itself occurred. The termination letter of 11th January 2022 cites "unwarranted absenteeism from duty" as the operative reason. The absence in question — the Respondent's failure to report for the reopening of the third term on 3rd January 2022, following her upcountry travel from around 22nd December 2021 — post-dates the disciplinary committee meeting by between three and ve weeks. A disciplinary committee cannot, by any stretch of logic or law, have heard, considered and made ndings on 11th December 2021 about an absence that had not yet happened. Whatever the report says about the Respondent's historical late-coming, it says nothing, and could say nothing, about the very absenteeism the Appellant ultimately relied upon to terminate her. To the extent the Appellant's defence conates the two — treating the 11th December report as if it were also a hearing into the January 2022 absence — that conation is simply untenable on the dates the Appellant's own documents disclose. 29. To these four textual and chronological inrmities must be added two evidential ones. The report bears no signature of the Respondent, a fact RW1 himself conceded under cross-examination ("the sta did not get the privilege of signing the report"). And the one witness whose personal knowledge underlies every allegation against the Respondent recorded in the report — Ustadh Suleiman Bakari Matata, the Mudeer — was listed as the Appellant's second witness but was never called to testify, meaning his account was never subjected to cross-examination and was never tested by the trial court at all; it survives only as hearsay recounted within a document, and repeated at one further remove by RW1, who candidly limited his own evidence to what "the report" said rather than what he personally witnessed. 30. For all of these reasons I conclude, agreeing with the submission pressed upon me on this point, that the minutes tendered by the Appellant cannot come to the aid of its defence. They do not https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2251/eng@2026-07-30 7

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establish that the Respondent was ever explained the reason for her impending termination in a language she understood, as Section 41 requires; they do not establish that she was aorded, or even oered, a representative to be present; they do not establish that any explanation from her was heard or considered; and no separate notice to show cause or invitation to a disciplinary hearing was ever issued to her at all — a point the Appellant's own witness eectively conceded. This nding is entirely consistent with, and indeed reinforces, the persuasive authority of Hosea Akunga Ombwori v Bidco Oil Reneries Limited [2017] eKLR, where the Employment and Labour Relations Court held that to satisfy Section 41 "an employer issues what is called in ordinary parlance a show cause notice/letter [which] should outline the allegations or charges against the employee and also request him/her to respond within a reasonable time [and] ought to inform the employee that disciplinary action which might lead to termination of employment is under consideration" — and with Duncan Mbarire v Nairobi Aviation College Limited [2016] eKLR, where the court observed, in a passage I gratefully adopt, that "it does not matter what oence the employee is accused of. If the employee is not heard, the termination is ipso facto unfair." H. Issue Three — was there a valid and fair reason for termination? The ambiguity of the termination letter 31. Even had the process been fair, Section 45(2)(a) requires the employer additionally to prove that the reason relied upon was valid, and Section 45(2)(b) that it was fair. It is here that the termination letter of 11th January 2022 falls to be scrutinised on its own terms, and it does not withstand scrutiny. 32. Read as a whole, the letter is capable of at least three dierent — and mutually inconsistent — characterisations of the reason for the Respondent's exit. It opens by stating that her "contract... has expired and will not be renewed" — language of non-renewal of a xed term, which, as I have already found, is not in fact what had occurred, since no xed term remained extant to expire on 11th January 2022. It then attributes the non-renewal to "your unwarranted absenteeism from duty among other reasons" — language sounding in misconduct. And it closes by casting itself as "a one-month notice" — language of a lawful, no-fault termination on notice. A letter cannot, without contradiction, simultaneously assert that a contract has expired of its own accord, that the employee's misconduct is the reason it was not renewed, and that a full month's contractual notice is being given. Each of these three characterisations carries a dierent legal consequence and would, in principle, call for a dierent procedural pathway; the letter picks none and gestures at all three. 33. The letter's internal contradiction does not stop there. It is dated, and was admittedly served on, 11th January 2022, yet it recites that it "serves as a one-month notice which will expire on 11th January 2022" — that is, on the very day it was issued. A notice that purports to run for one month but expires on the day it is given is not a notice at all; it is a contradiction reduced to writing. RW1's own explanation on this point — that the reference to "11th January" was "a typo" for which he says he "gave an amended document" — cannot rescue the letter, because no amended or corrected version was ever produced in evidence, at trial or on this appeal. This Court can only assess the document that exists, not one that a witness says once existed but which nobody has produced. 34. Testing each of the letter's three possible readings against the evidence actually adduced conrms that none of them discloses a valid and fair reason for termination. If the true reason was expiry of contract, that is simply incorrect on the facts I have found in Section F above: there was no xed-term contract left to expire; the Respondent was, by 11th January 2022, serving under an indenite, month-tomonth contract of service, and "expiry" is not a concept that applies to such a contract at all. If the true reason was absenteeism amounting to misconduct, then the Appellant was obliged to comply with Section 41 before acting on it — and, as found in Section G above, comprehensively failed to do so, https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2251/eng@2026-07-30 8

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no show-cause notice or disciplinary hearing specic to that absence ever having been given. If the true reason was simply the Appellant's own commercial or administrative preference no longer to continue the relationship — a form of non-renewal dressed in the language of "notice" — then that, too, required the Appellant to identify a valid and fair reason and to follow a fair procedure in accordance with Sections 43 and 45; an employer does not escape those obligations merely by choosing not to call the ending of an indenite contract a "dismissal". On no reading, therefore, does the letter of 11th January 2022 disclose a termination that was both valid in reason and fair in procedure. I so nd, and in this respect too the Appellant's grounds one, two, four and ve of the Memorandum of Appeal must fail. I. The voluntary retainer point, and whether the Appellant may reside from its own document 35. It is convenient to dispose here of a submission, echoed in argument on this appeal, to the eect that because the Respondent continued to work under, and accept salary paid according to the terms of her last written contract even after it had lapsed, she should be taken to have voluntarily continued to bind herself to those terms and cannot now complain of a departure from them. There is nothing objectionable, in principle, in the proposition that a party who knowingly and freely binds herself to an agreement's terms may, depending on the character of those terms and the circumstances of the case, nd it dicult later to resile from obligations she accepted with open eyes. But that principle has no purchase here, for two independent reasons. First, it is not the Respondent who seeks to escape the consequences of the arrangement under which she in fact worked; it is the Appellant, since it is the Appellant's own case that no written contract subsisted after 31st December 2020, and it is the Appellant, not the Respondent, that must live with the legal character — an indenite, month-tomonth contract of service under Section 35(1)(c) — that its own conduct in continuing to employ her, unreduced to writing, brought into being. Second, and in any event, the safeguards in Sections 41, 43, 45 and 47(5) of the Employment Act are not terms a private employer and employee may contract out of by conduct or otherwise; they are minimum statutory protections, and neither party's acquiescence in an informal working arrangement can be read as a waiver of them. For these reasons the submission, whatever force it might carry in a dierent factual setting, cannot avail the Appellant in the circumstances of this case. J. Conclusion on liability 36. Drawing the threads together: the Respondent's employment as at 11th January 2022 was governed by an indenite, month-to-month contract of service arising from her continued engagement after the expiry, unrenewed, of her last written xed-term contract on 31st December 2020. Its termination on 11th January 2022 was, on the Appellant's own case, a termination properly so called, attracting the full protective architecture of Sections 41, 43, 45 and 47(5) of the Employment Act. The Appellant failed to prove, on the document it itself produced and the evidence it itself called, that the Respondent was ever explained the reason for her termination, aorded a representative, or heard before the decision was taken; it has failed to prove that the reason communicated to her was either valid or fair, that letter being irreconcilably ambiguous between three inconsistent characterisations, none of which survives scrutiny. I therefore uphold the trial court's ultimate nding that the Respondent's termination was unfair and unlawful — but, respectfully, by a very dierent route and for substantially dierent reasons than those given by the trial court, whose treatment of the question, though correct in its bottom line, did not engage with the internal inconsistencies of the disciplinary report or of the termination letter that I have found to be decisive. Grounds one, two, four and ve of the Memorandum of Appeal accordingly fail. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2251/eng@2026-07-30 9

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On The Practice of Awarding Reliefs "as Prayed" K. Why reasons matter 37. I turn now to ground three of the appeal, which challenges the trial court's award of terminal dues. It is impossible to engage with this ground without rst confronting, directly and without euphemism, a feature of the judgment under appeal that this Court cannot pass over in silence: having found the termination unfair, the trial court disposed of the entirety of the quantum question in a single sentence — "the claimant is entitled to reliefs sought in the Memorandum of Claim in the sum of Kshs. 473,600 all circumstances considered" — a sum that, as I have already noted, does not correspond to the total pleaded (Kshs. 677,600/=), is not the product of any visible arithmetic, and is not attributed to any combination of the four distinct heads of relief that were separately pleaded, separately particularised, and separately contested at trial. 38. This manner of disposing of relief — awarding a claim "as prayed", or awarding some unexplained fraction of it, in a single undierentiated sum, without stating which head of claim succeeded, which failed, and why — is not a mere stylistic shortcut. It is a practice this Court must, in the clearest terms, discourage, and I take the opportunity this appeal aords to explain why at some length, since the point is of general application well beyond this case. 39. First, the giving of reasons is not an optional courtesy a court extends to the losing party; it is an incident of the right to a fair hearing itself. A party who has pleaded four distinct heads of relief, led evidence on each, and been cross-examined on each, is entitled to know, at the end of the trial, which of those four claims has been accepted, which rejected, and on what basis. A judgment that says only "the reliefs sought" have been awarded "all circumstances considered", in a gure that is neither the pleaded total nor explained by reference to any of the pleaded heads, tells the losing party nothing it can meaningfully engage with. It leaves the litigant to guess whether service pay was declined because she was a member of a provident fund, or because the Appellant proved she had already been paid, or because the claim was simply overlooked; whether leave allowance was reduced because part of her service fell under properly expired xed terms, or was allowed in full, or was refused altogether; whether compensation reects twelve months, or some lesser multiple, or was folded indistinguishably into the leave and service pay gures. A litigant left to speculate in this way has not, in any meaningful sense, been heard on the question of remedy at all, however fully she may have been heard on liability. 40. Second, reasons are the mechanism by which judicial power is rendered accountable. A judge exercising a discretion — and the quantication of terminal dues, particularly compensation under Section 49, is quintessentially discretionary — must demonstrate that the discretion was exercised judicially and not arbitrarily. It is only by articulating the considerations that moved the court on each head of claim that a supervising or appellate court, or indeed the public, can satisfy itself that like cases are being treated alike, that irrelevant considerations have been excluded and relevant ones taken into account, and that the outcome is the product of reasoned adjudication rather than an impressionistic sense of what feels roughly fair. A judgment that collapses four contested heads of claim into a single unexplained gure forecloses that scrutiny entirely; it converts what ought to be a reviewable exercise of judicial discretion into an unreviewable pronouncement. 41. Third, and most directly relevant to the posture in which this case now comes before me, the absence of reasons at rst instance has a corrosive eect on the appellate system itself. An appellate court's task, as I have set out in Section E above, is to re-evaluate the evidence and reach its own conclusions — but it does that re-evaluation most eectively, and with the greatest respect for the trial court's advantage in hearing the witnesses, when it can trace the trial court's own reasoning and test it, head by head, against https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2251/eng@2026-07-30 10

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the record. Where the trial court gives no reasons distinguishing one head of relief from another, the appellate court is deprived of any reasoning to test; it is left with only the raw record and a bare gure, and must, in eect, perform the rst-instance quantication exercise itself, from scratch, without any benet of the trial court's view on credibility or emphasis as it might bear on quantum specically (as distinct from liability, where the trial court did at least articulate a basis). This inates the burden on the appellate process, invites exactly the kind of scattergun, everything-and-the-kitchen-sink submissions this appeal has itself generated — submissions ranging over quantum, valuation of dues, the character of the retainer relationship, and much besides — because where a judgment gives no reasons, every element of the award becomes, by default, an equally live target for challenge. A reasoned judgment, by contrast, narrows the eld of legitimate appellate contest to those specic ndings the aggrieved party can identify as wrong, and on what basis. 42. It bears repeating that this duty to give reasons is not a novel importation into our labour jurisprudence; it is simply the ordinary incident of the judicial function, owing from Article 50 of the Constitution's guarantee of a fair hearing and from the plain textual structure of Section 49 of the Employment Act itself, which directs a court awarding compensation to have regard to a list of enumerated factors — length of service, the manner of termination, any loss suered, the employer's ability to pay, and so on — a direction that self-evidently presupposes that the court will say, in its judgment, which of those factors it weighed and how. A court that awards "reliefs as prayed" in a single unexplained sum has not demonstrated compliance with that statutory direction; it has merely asserted an outcome. 43. I make these observations not to visit any personal criticism upon the trial magistrate, whose nding on liability I have upheld and whose task, adjudicating a busy magistrate's court docket, is not to be underestimated. I make them because the practice is, in my experience of the record before me and of appeals of this kind more generally, a recurring one, and because ground three of this appeal cannot fairly be resolved without this Court doing what the trial court's judgment did not do: examining each pleaded head of relief on its own terms, against the evidence actually adduced, and stating plainly why each is allowed, reduced, or declined. That is the exercise to which I now turn, mindful that this Court, sitting as it does on a rst appeal, is in any event "enjoined to consider the reliefs that were sought afresh," and does not simply audit the trial court's arithmetic. RE-ASSESSMENT OF RELIEFS L. One month's salary in lieu of notice 44. The Respondent pleaded and claimed Kshs. 34,000/=, being one month's gross salary, in lieu of notice. The Appellant's position, both at trial and on appeal, is that this claim must fail because a notice — indeed, in its submission, thirty days' notice — was in fact given, and because, in RW1's evidence, the Respondent continued to be carried on payroll for the balance of January 2022 while "serving her notice." 45. I have already found, in Section H above, that the notice purportedly given by the letter of 11th January 2022 is a nullity on its own terms, since it recites an expiry date identical to its date of issue; whatever else that letter achieved, it did not give the Respondent one month's advance notice of anything. The question that remains is a narrower, evidential one: was she in fact paid a further month's wage, whether characterised as notice pay or otherwise, in respect of the period following 11th January 2022? 46. The Respondent's sworn evidence is that she was not paid. The Appellant's documentary answer is a set of payslips — the last of which, on the record before this Court, is dated November 2021, two months before the termination — together with RW1's bare assertion that "we paid her at the end of January because she was still serving her notice." No payslip for December 2021 or January 2022, https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2251/eng@2026-07-30 11

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and no evidence of any bank transfer, cash disbursement or acknowledgement of receipt for that nal period, was produced. I accept, as a general evidential proposition, that a payslip — being no more than the employer's own unilateral computation of what is owed, generated internally and without the employee's input — is not, without more, sucient to displace an employee's sworn testimony that she did not in fact receive payment. A payslip proves what an employer says it computed; it does not, standing alone, prove that the sum computed actually left the employer's hands and reached the employee's. Where an employee asserts on oath that she was not paid, the employer must do more than produce its own internal record of what it says was owed; it must show that payment was actually made and received. Here, the Appellant has not even cleared that threshold, since no payslip or other document evidencing payment for the critical period — December 2021 to the date of termination — was produced at all. 47. In these circumstances I nd that the Appellant has not discharged its burden of showing that the Respondent was paid in lieu of notice, or given eective notice in kind. I therefore allow this head of claim and award the Respondent Kshs. 34,000/=, being one month's gross salary in lieu of notice. M. Service pay 48. The Respondent pleaded a claim for service pay in the sum of Kshs. 119,000/=, calculated over her entire period of service from 2014. Section 35(5) of the Employment Act, 2007 entitles an employee whose contract is terminated under Section 35(1)(c) — precisely the species of termination found to have occurred here — to service pay for every year worked, absent a more favourable contractual or statutory entitlement. Critically, however, that entitlement does not arise at all where the employee is a member of a registered pension or provident fund scheme, gratuity scheme or similar arrangement provided by the employer: see, applying this exclusion, Kennedy Nyanguncha Omanga v Bob Morgan Services Limited [2013] eKLR, where the court declined to award service pay on the ground that the employee's membership of the National Social Security Fund "excluded him from the service pay benet provided for under Section 35(5) of the Act." 49. The evidence here is not merely that the Respondent was nominally enrolled in such a scheme; it is that she was an active, contributing member of a registered ICEA LION Provident Fund throughout her service (contributing 9% of her salary monthly, matched by an 11% employer contribution, precisely as her written contracts of employment provided), and that upon her exit the fund in fact paid out to her a terminal benet, evidenced by the ICEA LION Withdrawal Benets Calculation Worksheet, the Member Benets Statement and the Payment Remittance Advice all appearing in the Record of Appeal, in the sum of Kshs. 208,831.92 net (Kshs. 231,971.25 gross before statutory deductions), remitted to her bank account on or about 2nd March 2022. The Sta Clearance Certicate of 11th February 2022 records, in the Director's own hand, "Cleared with stores, member of provident fund," and his further, contemporaneous instruction, "Kindly process her provident dues ASAP." 50. I note, for completeness, that the Appellant's own submissions at trial conated this provident fund payout with the pleaded head of "service pay," submitting that "the Claimant's service pay was calculated and paid to her" by reference to the very ICEA LION documents just described. That is not, with respect, a correct characterisation. A registered provident fund payout and statutory service pay under Section 35(5) are not the same thing paid under two labels; they are, in law, alternatives — the existence of the former is precisely what excludes an entitlement to the latter, under Section 35(5) itself. The correct legal conclusion is therefore not that service pay was already paid; it is that service pay was never due at all, because the Respondent's membership of, and payout from, a registered provident fund scheme brings her squarely within the statutory exclusion. On either analysis — the Appellant's own (mistaken) submission that service pay was paid, or the legally correct position that it was never https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2251/eng@2026-07-30 12

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payable — the outcome is the same: no further sum falls due under this head. I decline to award service pay. N. Compensation for unfair termination 51. Section 49 of the Employment Act confers a discretion on this Court to award compensation not exceeding twelve months' gross salary, to be exercised having regard to, among other things, the length of service, the manner of termination, the extent to which the employer or employee caused or contributed to the termination, and the practicability of any other order. The Respondent's submissions on appeal press for the maximum, twelve months. I decline to award the maximum, for reasons that follow directly from the analysis in Section F above. 52. The Respondent's total tenure, taken globally from 2014, was substantial and would, without more, incline this Court toward a generous award. But compensation under Section 49 responds to the manner and consequences of the termination actually eected — here, the termination on 11th January 2022 of the indenite, month-to-month contract that had subsisted since 1st January 2021 — and not to the entirety of a career that, for most of its length, was governed by a succession of xed-term contracts that each ran their course and expired on their own terms, without complaint, without any suggestion of unfairness, and without any liability, present or contingent, surviving their expiry. It would be analytically inconsistent to award compensation calibrated to fourteen-plus years of service when the very contract found to have been unfairly terminated is one that, on this Court's own ndings, came into being only on 1st January 2021, following the expiry of the last written contract. The appropriate reference period for calibrating compensation is, therefore, the period actually served under the non-xed contract that was in fact unfairly terminated: just over twelve months. 53. Weighing that period, together with the manner of termination — a facially contradictory letter, an unsigned and chronologically impossible disciplinary report, and the complete absence of any showcause process — against the absence of any evidence that the Respondent herself contributed materially to the termination beyond the disputed allegation of a single period of extended holiday travel (which I have found could not lawfully have grounded summary termination without a fair process in any event), I consider that an award of three months' gross salary strikes the appropriate balance: it reects the length of the specic engagement that was unfairly ended and the manner in which that was done, without inating the award by reference to a career-long tenure most of which ran its course under properly expired, unimpeached xed terms. I therefore award compensation in the sum of Kshs. 102,000/=, being three months' gross salary at Kshs. 34,000/= per month. O. Leave allowance 54. The Respondent pleaded leave allowance calculated over her entire period of service, from 8th May 2014 to 11th January 2022, in the sum of Kshs. 116,600/=. For the reasons already given in Sections F and N above, this global approach cannot be sustained, and I decline to adopt it. Leave allowance is not a claim in the nature of a running, undierentiated debt that simply accrues across every year an employee has ever worked for an employer regardless of the legal character of the contract then in force; it is referable to entitlements arising, and not exhausted, under the contract of service actually subsisting during the period claimed for. 55. Two independent reasons support conning the Respondent's leave allowance to the period she served under the non-xed, indenite contract — that is, 1st January 2021 to 11th January 2022 — and excluding the years she served under the several written, xed-term contracts that each expired on their own stated terms. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2251/eng@2026-07-30 13

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56. The rst is a matter of basic contractual logic: no liability, of any kind, survives the proper and unimpeached expiry of a xed-term contract, absent some express saving provision (and none is pointed to here). Each of the Respondent's written contracts — running to 30th April 2016, to 31st December 2018, and nally to 31st December 2020 — expired on its own appointed date, without complaint of unfairness and without this appeal or the suit below impugning any of those expiries as themselves wrongful. If the Respondent took her contractual leave entitlement during each of those terms (a matter on which the record is admittedly incomplete, since leave forms were produced for various years without a complete tally being placed in evidence by either side), any shortfall attaching to a particular expired term became, upon that term's proper expiry, a matter to be raised, if at all, at or shortly after that expiry — not resurrected, undierentiated, as part of a claim arising from an entirely dierent, later contract's unfair termination. 57. The second reason is one of limitation, and specically the principle sometimes described as the "continuous injury" doctrine. Where a wrong is truly continuing — where each day of a wrongful state of aairs gives rise to a fresh cause of action — limitation runs afresh from each recurrence. But an unpaid or unaccrued leave entitlement referable to a xed term that has properly expired is not a continuing wrong of that character; the cause of action, if any, crystallised (or did not arise at all, if leave was in fact taken) at the moment each contract expired. To permit a leave claim referable to a contract that expired in, say, 2016 or 2018 to be revived years later and tacked onto a claim arising from the unfair termination of a wholly dierent, later, indenite contract would be to treat as "continuing" what is, properly analysed, a discrete and long since concluded state of aairs. The only period genuinely continuous with, and inseparable from, the termination actually under challenge is the period of the indenite contract itself — 1st January 2021 to 11th January 2022 — since it is that contract's termination, and no other, that is impugned in these proceedings. 58. I therefore calculate leave allowance by reference to the contractual entitlement recorded in the Respondent's own written contracts — twenty-four calendar days of local leave per completed year of service, on full salary (clause F.1 of the contract dated 8th May 2014, a term expressly carried forward into each subsequent extension) — applied on a pro-rata basis to the period of one year and eleven days that she served under the non-xed, indenite contract of service. At a daily rate of Kshs. 1,133.33 (Kshs. 34,000/= divided by 30), twenty-four days per annum prorated over 1.03 years yields approximately 24.7 days, which I round, for simplicity and in the Respondent's favour, to Kshs. 28,000/=. I award the Respondent leave allowance in the sum of Kshs. 28,000/=. P.Certicate of service and costs 59. The decree extracted from the trial court's judgment also records a prayer for a certicate of service. RW1's own witness statement conrms that the Respondent "has never come for her certicate of service despite promising to do so," which suggests the document is, or was, available for collection. To remove any doubt and any further occasion for dispute, I direct that the Appellant do issue, and the Respondent do collect or arrange to have delivered to her, a certicate of service within fourteen (14) days of this judgment, should this not already have occurred. 60. As to costs, the Respondent has substantially succeeded in this appeal on the central question — the nding of unfair termination stands, armed if anything on a more solid footing than the trial court itself supplied. The Appellant has, however, succeeded in materially reducing the quantum awarded, from Kshs. 473,600/= to Kshs. 164,000/=, a result owing directly from the trial court's own failure to give reasons for its gure, a failure I have found necessitated this Court undertaking the quantication exercise entirely afresh. In those circumstances, and exercising the discretion this Court has as to costs, I consider it just that each party bear its own costs of this appeal. The costs order made by the trial court https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2251/eng@2026-07-30 14

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in the suit below, being consequential upon the (upheld) nding of unfair termination, is armed, save that interest shall run at court rates from the date of the judgment of the lower court on the sum now found to be due, being Kshs. 164,000/=, and not on the sum originally decreed. Disposition 61. For the reasons set out above, I make the following orders: (a) The appeal against the trial court's nding that the Respondent's termination from employment was unfair and unlawful is dismissed. That nding is upheld, though for substantially dierent reasons than those given by the trial court, as set out in this judgment. (b) The appeal against the quantum awarded by the trial court succeeds in part. The decretal sum of Kshs. 473,600/= is set aside and substituted with the following: (i) One month's salary in lieu of notice — Kshs. 34,000/=; (ii) Service pay — declined, the Respondent being a member of a registered provident fund scheme; (iii) Compensation for unfair termination, equivalent to three months' gross salary — Kshs. 102,000/=; (iv) Leave allowance, conned to the period served under the non-xed contract of service, pro-rated — Kshs. 28,000/=; making a total award of Kshs. 164,000/=. 62. (c) The Appellant shall issue the Respondent a certicate of service within fourteen (14) days of this judgment, if this has not already been done. (d) Interest on the sum of Kshs. 164,000/= shall run at court rates from the date of the lower court’s judgment until payment in full. (e) The costs order of the court below is armed. Each party shall bear its own costs of this appeal. It is so ordered. DATED, SIGNED AND DELIVERED AT MOMBASA THIS 30TH DAY OF JULY 2026. OCHARO KEBIRA, JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2251/eng@2026-07-30 15

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