REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI APPEAL NO. E227 OF 2025 BONFACE KYUNDI KASANDUKU.......................................APPELLANT VERSUS SIMON WAIHARO CHEGE..............................................RESPONDENT (Being an appeal from the judgment of Hon. Lucy Ambasi dated 17 June 2025 in Milimani MCELRC 331 of 2021) JUDGMENT The appeal arises from the judgment delivered on 17 June 2025 in Milimani MCELRC 331 of 2021. The appeal is on the ground that the learned magistrate erred in fact by holding that the appellant was lawfully terminated even though evidence indicated the absence of a hearing as provided for under section 41 of the Employment Act (the Act). The learned magistrate failed to consider the provisions of section 25 of the Act regarding special damages when relying on continuing injury to dismiss the special damages claims. The trial court erred by failing to consider minimum wage orders when entering judgment denying special damages. The background of the appeal is the claim filed by the appellant. The appellant claimed that he was employed as a caretaker and was paid a salary of Kshs. 12,000 per month, which is below the minimum wage of a caretaker. He was never issued an employment contract, despite being employed from 2009 until his dismissal in November 2019. Sometime in August 2019, the appellant was given a token of appreciation in the amount of Kshs. 70,000 by Marijam Investments Limited, which was the respondent's agent. The respondent was not pleased by the action when he found and informed the appellant that his services were no longer needed. The appellant reported to the labour officer. Conciliation meetings were held on ELRC NAIROBI JUDGMENT APPEAL NO. E227 OF 2025 1
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10 December 2019 and 12 February 2020, but no resolution was reached. The appellant filed his claim seeking the following: 1. A declaration that the termination of the appellant’s employment by the respondent was unlawful, malicious, unprocedural and an infringement on his constitutional rights 2. Maximum compensation for wrongful dismissal 3. Special damages a) One month pay in lieu of notice.........Kshs.32,368 b) Service gratuity............................Kshs.426,427.00 c) Public holidays................................Kshs.97,560.00 d) Annual leave........................................Kshs.44,715 e) Underpayment..............................Kshs.484,410.00 f) Interest on the total g) Certificate of service In reply, the respondent admitted that the appellant was employed as a labourer and later as an unskilled labourer. He was not underpaid and was well remunerated in line with the Regulation of Wages (General) (Amendment) Order, 2018, which was in force when the appellant’s employment was terminated. The appellant fell within the 1 st category of general labourers, who were paid Kshs. 13,570, inclusive of house allowance. The appellant was also allowed to house all his family members, including his wife and children, on the premises. The respondent did not appoint Marjam Investments, a competitor, as its agent. The appellant was found to have a habit of diverting potential customers to competitors who would, in turn, pay him a commission, and Marjam Investments' attempt to sanitise the reason for their payment to him was not supported by any evidence whatsoever. The appellant was in breach of his employment code and guilty of gross misconduct for diverting clients to competitors. The appellant had previously engaged in similar acts for which he had apologised. ELRC NAIROBI JUDGMENT APPEAL NO. E227 OF 2025 2
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The appellant was dismissed after being given a one-month termination notice on 15 October 2019, and was properly informed of his misconduct and the reasons for termination. The appellant had borrowed Kshs. 30,000 at the time of termination, and he elected to have his debt settled and set off against the salary for the month of notice. The appellant was properly treated, and due process of law was followed in his termination for gross misconduct. The respondent urged that the claim be dismissed with costs. There is no judgment attached to the record. There are also no submissions filed on behalf of the parties. Determination On 8 May 2026, the parties attended court to obtain directions on the appeal. The Record of Appeal was admitted, but upon analysis, there is no Judgment or Decree of the trial court that is the subject of the appeal. The filed Record of Appeal includes the index page, which indicates that the judgment is not attached. Under section 17 of the Employment and Labour Relations Court Act, a party aggrieved by the judgment of the trial court is allowed to file an appeal with the court. Rule 12 of the Employment and Labour Relations Court (Procedure) Rules allows a party filing an appeal to include the Record of Appeal. The Record should have the following mandatory documents set out under Rule 15(1); (1) A memorandum of appeal shall be accompanied by a record of appeal comprising a certified copy of pleadings, the proceedings, any documentary evidence relied on, and the judgment, ruling, decision, order, decree or award appealed against. That is: ELRC NAIROBI JUDGMENT APPEAL NO. E227 OF 2025 3
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a) A certified copy of pleadings, b) The proceedings, c) Documentary evidence, d) The judgment, e) Decree. The instant Record of Appeal is deficient in mandatory records, particularly the subject judgment subject to appeal and the decree thereof. This invalidates the appeal. The basis upon which the appeal is premised is lost. Faulting the learned trial magistrate without attaching the basis of the findings is without any logic. Indeed, under Rule 15, where the Record of Appeal is incomplete for over 60 days, the appeal abates. The appellant did not seek protection under Rule 18 of the Court Rules. Even with the best efforts to apply justice, as the right holder to the appeal, the court cannot sustain it. The appellant further failed to attend or file written submissions. The appeal is an abuse of court process. Accordingly, the Record of Appeal being incomplete, the appeal is in abuse of court process and is hereby dismissed. Costs to the respondent. Delivered in open court this 31st day of August 2026 M. MBARŨ JUDGE In the presence of: Court Assistant: Kemboi ……………………………………………… ELRC NAIROBI JUDGMENT APPEAL NO. E227 OF 2025 and …………………………………..……… 4
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