Swan Carriers Ltd v Otieno

3. The Honourable Magistrate erred in law and fact by failing to nd that the Respondent's claim was time barred under Section 89 of the Employment Act, the Respondent having pleaded that the alleged salary withholding arose in 2018, while the suit was led on 8th June 2023 outside the statutory limitation period. 4. The Honourable Magistrate erred in law and fact by erroneously making a nding that the Respondent was constructively and unlawfully terminated when the Plaint does not plead unlawful termination and constructive dismissal from employment. 5. The Honourable Magistrate erred in law and fact by recharacterizing a suit that was pleaded as a claim for withheld salary and malicious prosecution into an unlawful termination dispute. 6. The Honourable Magistrate erred in law by erroneously granting the Respondent remedies that were neither pleaded nor particularized in the Plaint nor raised in the witness statement. 7. The Honourable Magistrate erred in law and fact by awarding the Respondent salary arrears despite the Respondent's failure to plead or prove the date when salary stoppage commenced. 8. The Honourable Magistrate erred in law and fact in failing to consider the Appellant's defence that the Respondent had absconded duty. 9. The Honourable Magistrate erred in law by disregarding the Appellant's documentary and oral evidence on abscondment of duty by the Respondent. 10. The Honourable Magistrate erred in law by awarding salary for a period during which the Respondent neither pleaded nor proved that he worked. 11. The Honourable Magistrate erred in law by failing to reconcile the Respondent's mutually destructive pleadings, wherein he alleged continuous employment for 30 months while simultaneously pleading inability to secure employment or work during the same period. 12. The Honourable Magistrate erred in law by holding that the Respondent was a driver, notwithstanding that the Plaint was expressly pleaded that the Respondent was a turn boy without any amendment of pleadings or evidential basis. 13. The Honourable Magistrate erred in law by awarding compensation equivalent to three months' salary without establishing unfair termination and without considering or analyzing the mandatory factors set out under the Employment Act. 14. The Honourable Magistrate erred in law and in fact by failing to consider, analyze or assign any weight to the Appellant's Defence, oral testimony and documentary evidence. Background to the Appeal 15. The Respondent led a suit against the Appellant vide a plaint dated 5th June 2023 seeking the following orders: a. Special damages as against the Defendant in the amount of Kshs. 559,250/- b. General Damages c. Interest on the Special Damages at the courts rate. d. Costs of the suit. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2488/eng@2026-09-18 2

page 2 of 13

e. Any other or further relief that the Honourable Court may deem just and expedient to grant in the circumstances. (pages 4-6 of Appellant’s RoA dated 16th June 2026). 16. The Respondent led his list of witnesses dated 5th June 2023, witness statement of even date, and list of documents together with the bundle of documents attached, all of even date (pages 8-12 of RoA). 17. The claim was opposed by the Appellant who entered appearance on 13th June 2023 and led a defence dated 20th June 2023 (pages 13-15 of RoA). They also led a witness statement of Ole Mwanunga Joseph dated 8th November 2024; and list and bundle of documents of even date (pages 23-26 of RoA). 18. The Plainti/Respondent’s case was heard on 13th March 2025, with the Plainti testifying. He was cross-examined by counsel for the Appellant Mr. Kahara (pages 8-10 of the Supplementary Record dated 21st July 2026). 19. The Appellant/Defendant’s case was heard on 1st October 2025, with the Defendant’s witness, one Ole Joseph Mwarure testifying. He adopted his led witness statement as his evidence in chief and produced his documents as exhibits. He was cross-examined by counsel for the Appellant Mr. Okelo (pages 10-11 of Supplementary Record). 20. The Court entered Judgment on 10th December 2025 partially allowing the Respondent’s case to the tune of Kshs. 388,125/- comprising of one month’s pay in lieu of notice; 3 months’ salary as compensation for unfair termination; and unpaid salaries for the months claimed. It also ordered that the Claimant/Respondent be paid costs of the suit and interest (judgment at pages 63-66 of RoA). Determination 21. The appeal was canvassed by way of written submissions. Both parties complied. Issues for Determination 22. In their submissions dated 9th July 2026, the Appellant identied the following issues for determination: i. Whether the learned trial Magistrate properly assumed and exercised jurisdiction over the Respondent's employment claim after the tortious claim for malicious prosecution had been struck out. ii. Whether the Respondent's claim was statute-barred under Section 89 of the Employment Act. iii. Whether the Respondent discharged the burden of proving his claim on a balance of probabilities. iv. Whether the Learned Trial Magistrate erred in awarding salary for periods during which no services were rendered. v. Whether the Learned Trial Magistrate erred in granting remedies that were neither pleaded nor proved. vi. Whether the judgment of the trial court ought to be set aside. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2488/eng@2026-09-18 3

page 3 of 13

23. Conversely, the Respondent identied the following issues in his submissions dated 30th July 2026:i. The trial court lacked jurisdiction after the malicious prosecution claim was struck out. ii. The claim was statute-barred. iii. The Respondent proved his case on a balance of probabilities. iv. The award of salary arrears and terminal dues was lawful. v. The trial court granted un-pleaded remedies. 24. The parties are in agreement on the issues, and the court adopted the same in the determination. 25. This being a rst appellate court, it was held in Selle v Associated Motor Boat Co. [1968] EA 123 that:The appellate court is not bound necessarily to accept the ndings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s ndings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.” Whether the Learned Trial Magistrate Properly Assumed and Exercised Jurisdiction over the Respondent's Employment Claim after the Tortious Claim for Malicious Prosecution had been Struck Out. 26. The Court nds that there was no dispute that the Respondent intertwined the claim of malicious prosecution with the claim of unfairness in employment for lack of payment of wages when the employment had not been terminated. The Court is guided not to determine cases on procedural technicalities under section 20 of the Employment and Labour Relations Court Act. The grounds of appeal under the issue amount to procedural technicalities. I nd no basis to fault the trial court on proceeding to determine the employment claim on its merit. Whether the Respondent's Claim was Statute-Barred under Section 89 of the Employment Act. 27. The grounds of appeal were as followsThe Honourable Magistrate erred in law and fact by failing to nd that the Respondent's claim was time barred under Section 89 of the Employment Act, the Respondent having pleaded that the alleged salary withholding arose in 2018, while the suit was led on 8th June 2023 outside the statutory limitation period.’ The Appellant’s Submissions 28. In the present case, the Respondent's own pleadings establish that the cause of action arose in 2018. At paragraph 5 of the Plaint, the Respondent pleaded that on 18th July 2018, he was arrested and thereafter denied access to the Appellant's premises. He further pleaded that from that date the Appellant withheld his salary and never resumed paying him. During cross-examination, he https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2488/eng@2026-09-18 4

page 4 of 13

maintained that he was never allowed back to work after his arrest. The learned trial Magistrate equally found that the events giving rise to the employment dispute commenced on 19th July 2018 and proceeded to hold that the Respondent had been constructively dismissed. If indeed the Court's nding was that the Respondent was constructively dismissed in 19th July 2018, then the cause of action accrued on that date. The Respondent was therefore required to institute proceedings not later than July 2021. Instead, the suit was led on 5th June 2023, nearly ve years after the alleged violation of his employment rights. We submit that the learned Magistrate could not nd that the employment relationship eectively came to an end in July 2018 and at the same time entertain a suit instituted almost ve years later without addressing the express statutory bar contained in Section 89 of the Employment Act. The Respondent attempted to avoid the limitation bar by contending that he remained an employee throughout the pendency of the criminal proceedings because he had not been formally terminated. That contention does not assist his case. If indeed the Respondent's case was that he remained an employee and that his complaint was merely that his salary had been withheld, then his cause of action was one for recovery of unpaid wages. In that event, the Respondent was under a duty to plead with precision when the alleged salary stoppage commenced, the particular salary periods for which payment was claimed, and the date upon which the employer allegedly defaulted in making payment. However, the Plaint is completely silent on those material particulars. The Respondent merely pleaded that his salary had been "withheld" without identifying the date when the withholding commenced or the specic months for which salary was allegedly due. Consequently, the Plaint failed to disclose when the cause of action accrued for purposes of Section 89 of the Employment Act. This omission was not a mere defect in pleading. It deprived the Court of the factual basis upon which it could determine whether the suit had been commenced within the statutory limitation period. The learned Magistrate nonetheless proceeded to determine the suit without rst establishing when the cause of action arose, thereby overlooking a mandatory jurisdictional question. 29. It is further noteworthy that the trial court eectively supplied the missing facts by nding that the Respondent had been constructively dismissed on 19th July 2018, notwithstanding that constructive dismissal had neither been pleaded nor formed part of the Respondent's case. The learned Magistrate therefore fell into error by making a nding that the Respondent's employment eectively came to an end in July 2018, but failed to appreciate that the suit had been instituted outside the mandatory three-year limitation period prescribed under Section 89 of the Employment Act. Accordingly, this Honourable Court is urged to nd that the Respondent's claim statute-barred and that the learned trial Magistrate lacked jurisdiction to determine it. Respondent’s Submissions 30. Conversely, the respondent submitted as follows- The Appellant bears the burden of showing that the claim was led outside the limitation period with precision. The record, as summarized in the submissions, shows a continuing employment dispute whose accrual and cessation were contested, including allegations that the Respondent remained an employee and that salary was withheld over time. That makes limitation a factual question not amenable to the Appellant’s simplistic approach. In Makanga v Gearbox Limited & 4 others (Employment and Labour Relations Cause E756 of 2023) [2026] KEELRC 755 (KLR) B.O.M. Manani J stated thus; “ 45. The Respondents did not expressly deny the Claimant’s assertion that he was blocked from accessing his work station and was not allocated work after 16th January 2023. At the same time, there is no evidence that the Claimant was formally suspended from duty pending the proposed disciplinary action against him. In eect, he was entitled to be at work and to be allocated tasks unless he was formally suspended. The law on constructive dismissal is now https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2488/eng@2026-09-18 5

page 5 of 13

settled. An employee will be deemed to have been constructively dismissed if he resigns from work because of breach of his contract by the employer (Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] KECA 394 (KLR)).” 31. The respondent submitted in any event, where an employer keeps an employee in a state of uncertainty, denies access to work, and withholds salary, the cause of action may be treated as a continuing injury or one whose exact cessation must be proved by evidence. A fresh cause of action continues during the breach, the wrong did not cease in the present case even as at the time of ling of the case. The Appellant did not demonstrate, conclusively and with documentary clarity, that the claim was out of time. There was legitimate expectation of the Respondent that he would be paid his dues upon the logical conclusion of the criminal case, which had been occasioned by the Appellant and which was nalized in 2022 in favour of the Respondent. The Appellant cannot be allowed to benet from their cruel action against the Respondent, rst by having them charged with a criminal case which spectacularly, failed and then denying them their rightful and legitimate pay. Decision 32. The arrest of the respondent on the 19th July 2018 was not in dispute. In his witness statement, the respondent stated that he continued to be a driver of the 1st respondent, as no termination letter or letter was given to him, and on dierent occasions reported to work, but was surprised that the appellant had stopped paying his salaries and no explanation was given (see paragraph 3 of the respondent's witness statement at page 36 of the RoA). 33. Conversely, the appellant, in the witness statement of its human resources manager, stated that the respondent was absent from work and failed to show up at the work premises after it reported the matter to the police. The appellant produced a letter to the labour ocer dated 3rd August 2018 informing the labour oce at Mavoko that the respondent had absconded work as a turnboy from 30th July 2018. 34. So when did the cause of action arise? The respondent in the claim sought salary arrears for 14 months during the prosecution of the criminal case. The court nds that the claim for salary arose from the date of arrest. The appellant failed to terminate the employment upon asserting absconding and thus the claim cannot be said to be time-barred. It is the employer's duty to bring an employment relationship to an end. I do nd that the claim for employment was not time-barred and that the employer was at fault for failing to terminate the employment under section 41 of the Employment Act, leaving the cause of action open-ended. Whether the Respondent Discharged the Burden of Proving his Claim on a Balance of Probabilities. 35. The grounds of appeal under the issue were as followsa. The Honourable Magistrate erred in law and fact by erroneously making a nding that the Respondent was constructively and unlawfully terminated when the Plaint does not plead unlawful termination and constructive dismissal from employment. b. The Honourable Magistrate erred in law and fact by recharacterizing a suit that was pleaded as a claim for withheld salary and malicious prosecution into an unlawful termination dispute. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2488/eng@2026-09-18 6

page 6 of 13

c. The Honourable Magistrate erred in law by erroneously granting the Respondent remedies that were neither pleaded nor particularized in the Plaint nor raised in the witness statement. d. The Honourable Magistrate erred in law and fact by awarding the Respondent salary arrears despite the Respondent's failure to plead or prove the date when salary stoppage commenced. e. The Honourable Magistrate erred in law and fact in failing to consider the Appellant's defence that the Respondent had absconded duty. f. The Honourable Magistrate erred in law by disregarding the Appellant's documentary and oral evidence on abscondment of duty by the Respondent. g. The Honourable Magistrate erred in law by awarding salary for a period during which the Respondent neither pleaded nor proved that he worked. h. The Honourable Magistrate erred in law by failing to reconcile the Respondent's mutually destructive pleadings, wherein he alleged continuous employment for 30 months while simultaneously pleading inability to secure employment or work during the same period. i. The Honourable Magistrate erred in law by awarding compensation equivalent to three months' salary without establishing unfair termination and without considering or analyzing the mandatory factors set out under the Employment Act. j. The Honourable Magistrate erred in law and in fact by failing to consider, analyze or assign any weight to the Appellant's Defence, oral testimony and documentary evidence. The Appellant’s Submissions 36. It is the Appellant's submission that the learned trial Magistrate erred both in law and in fact in nding that the Respondent had proved his case on a balance of probabilities. The evidence tendered before the trial court fell far short of the legal threshold required to establish the Respondent's claim and the learned Magistrate consequently misdirected herself by shifting the burden of proof from the Respondent to the Appellant. The law on the burden of proof is settled. Section 107(1) of the Evidence Act provides:“ Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist." Section 109 of the Evidence Act further provides that: “ The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person." 37. The appellant submitted the above provisions of the Evidence Act embody the fundamental principle that a claimant must succeed on strength of his own case and not on the weakness of the defence. Further, in employment disputes, Section 47(5) of the Employment Act imposes a specic burden upon an employee alleging unfair termination. The employee bears the initial burden of proving that an https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2488/eng@2026-09-18 7

page 7 of 13

unfair termination or wrongful dismissal occurred before the burden shifts to the employer to justify the reasons for the termination. In the present case, the Respondent failed to discharge this burden. 38. Firstly, the Respondent did not establish the nature of his cause of action. Throughout his pleadings and testimony, he maintained that he had never been terminated and that the Appellant merely stopped paying his salary after his arrest. He repeatedly asserted that because he had not received a termination letter, he remained an employee of the Appellant throughout the pendency of the criminal proceedings. 38. Having taken that position, it was incumbent upon the Respondent to prove the contractual or statutory basis upon which he remained entitled to salary despite admittedly rendering no services to the Appellant. No contract of employment, collective bargaining agreement, workplace policy or statutory provision was produced to demonstrate that an employee who ceased rendering services remained entitled to wages indenitely. 39. Secondly, the Respondent failed to prove that he resumed duty after his release from custody and that he was denied access to the Appellant's premises as alleged. Although he asserted that he reported back to work, he did not produce any documentary or independent evidence to support that assertion. There was no correspondence addressed to the Appellant protesting the alleged denial of access, no report to the Labour Oce, no attendance records, gate register, witness testimony or any contemporaneous complaint demonstrating that he presented himself for work and was turned away. His allegation therefore remained a bare assertion unsupported by evidence. 40. Thirdly, the Respondent failed to prove when the alleged withholding of salary commenced. The Plaint merely alleged that the Appellant withheld his salary but omitted to plead the specic date when the withholding began or the period for which salary was allegedly due. Without identifying the date of the alleged default, the Court had no factual basis upon which to determine the accrual of the cause of action, the applicable limitation period or even the amount lawfully recoverable. 41. The Respondent further maintained that he remained an employee of the Appellant throughout the criminal proceedings while simultaneously pleading that he was unable to secure alternative employment because of the pending criminal case. Those assertions were never reconciled. If indeed the Respondent remained in employment, then the premise that he was unable to secure another job because of the criminal proceedings becomes legally incongruous. Conversely, if he considered himself unemployed and available for other employment, then his assertion that the employment relationship remained subsisting cannot stand. The learned Magistrate overlooked these material inconsistencies and accepted Respondent's evidence without subjecting it to the requisite legal scrutiny. 42. Further, the learned Magistrate proceeded to nd that the Respondent had been constructively dismissed despite the fact that constructive dismissal had neither been pleaded nor formed part of the Respondent's case. The Respondent consistently maintained that he had not been terminated but remained an employee of the Appellant. The Court therefore determined an issue that had not been placed before it by the parties and granted remedies founded upon an unpleaded cause of action. 43. The Court of Appeal in Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others [2014] eKLR reiterated the settled principle that parties are bound by their pleadings and that a court has no jurisdiction to determine matters not pleaded or to make out a case for either party. By introducing constructive dismissal into the dispute, the learned Magistrate eectively reconstructed the Respondent's case and relieved him of the burden imposed by Sections 107 and 109 of the Evidence Act. 44. In addition, the Respondent failed to rebut the Appellant's evidence that he had absconded duty after his arrest. The Appellant produced documentary evidence, including its letter dated 3rd August 2018 addressed to the Labour Ocer reporting that the Respondent had absconded duty. That evidence https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2488/eng@2026-09-18 8

page 8 of 13

remained largely uncontroverted. Rather than requiring the Respondent to displace the Appellant's defence by credible evidence, the learned Magistrate simply ignored the issue and proceeded to enter judgment in favour of the Respondent. The cumulative eect of the foregoing is that the Respondent failed to prove the essential ingredients of his claim. He did not prove that he had been unlawfully or constructively terminated; he did not prove that he remained entitled to wages; he did not establish the period for which salary was allegedly withheld; and he failed to present a coherent and consistent factual basis upon which the Court could grant the reliefs sought. 45. In the circumstances, the learned trial Magistrate misdirected herself in nding that the Respondent had proved his claim on a balance of probabilities. The nding was contrary to the evidence on record and the applicable law. This Honourable Court is therefore urged to interfere with that nding, allow the Appeal, set aside the Judgment of the subordinate court, and substitute it with an order dismissing the Respondent's suit with costs. The Respondent’s Submissions 46. The Respondent testied that he was employed by the Appellant, was arrested in connection with a criminal case related to his employment, reported back to work after release on bail, and was denied access to the workplace by the watchmen at the gate who stated they were under instructions from the Appellant, the Respondent continued to report to work and every time met the same fate, he was not told his services had been terminated or that he was under interdiction, he was not served with a termination letter. That evidence, if believed, supported the trial court’s nding that the employment relationship was unlawfully brought to an end or at least left in an unlawful and unresolved state. 47. The Appellant relies heavily on a letter allegedly reporting abscondment, but that does not automatically defeat the Respondent’s case. The court had to assess the competing narratives, and it was entitled to prefer the Respondent’s account where the Appellant did not show that due process under the Employment Act was followed. It was clear, that there was no rebuttal by the Appellant of the Respondents assertion that his salaries were not paid and the same remains unpaid to date. 48. The burden of proof in employment disputes is shared in a practical sense: once the employee raises a plausible case of unfair treatment or unlawful termination, the employer must justify its conduct. The trial court was entitled to nd that the Appellant failed to do so satisfactorily. The Respondent clearly pleaded, as admitted by the Appellant that his salary was “withheld”, he proved that the same was withheld after the Respondent was arraigned in court with trumped up charges arising out of the Appellant’s complaint to the police. The Respondent discharged his duty of clearly demonstrating he did not receive the salary, the burden shifted to the Appellant to prove that he paid the salaries, that the Respondent had said had not been paid. Decision 49. During the hearing, the respondent told the trial court that he was employed as a turnboy and, upon arrest, he was released on cash bail and was not allowed back to work. The trial court held the respondent did not have evidence of being turned away on the alleged reporting back to work. Conversely, the appellant produced a letter dated 3rd August 2018 to the labour ocer regarding absconding duty from 30th July 2018 (page 25 of RoA). The trial court, without basis, did not give any weight to the letter to the labour ocer regarding absconding and, without any basis, stated the respondent’s service was terminated on 19th July 2018. I nd that the trial court erred in application of facts. The weight of documentary evidence cannot be dislodged by uncorroborated facts. The trial court held there was no prove of the respondent having reported to work being turned away. The court https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2488/eng@2026-09-18 9

page 9 of 13

nds that the respondent did not prove on a balance of probabilities that he returned to work after arrest to be entitled to the claimed wages. 50. The appellant submitted that the entitlement to wages is governed by Section 17(1) of the Employment Act, which provides: “ Subject to this Act, an employer shall pay the entire amount of the wages earned by or payable to an employee in respect of work done by the employee in pursuance of a contract of service..." 51. In Akama v Kisii University & 2 others [2025] KEELRC 109 (KLR), the Employment and Labour Relations Court considered a similar claim for salary during a when the claimant had not rendered any services. The Court held as follows: "Having not rendered any service... no wages had been earned or become payable to him. The claim for salary till reinstatement is declined." 52. The same reasoning applies with equal force in the present appeal. The Respondent did not plead or prove that he rendered any services to the Appellant during the fourteen-month period for which salary was awarded. Accordingly, the award of Kshs. 169,400/= as salary arrears was unsupported by the e) evidence, the contract between the parties and contrary to Section 17(1) of Employment Act. 53. The respondent submitted that Akama v Kisii University & 2 others [2025] KEELRC 109 (KLR) is distinguishable from the present case as facts are totally dierent. There was no ambiguity in the contract between the Respondent and the Appellant, the issue here was not that the Respondent failed to or was unwilling to work but that the Respondent was denied both entry and his salary while he still deemed himself to be an employee since there was no formal termination of his employment. But even though the facts were dierent, the nal nding in the cited case were thus; “162. In the upshot judgment is entered in favour of the claimant against the 1st respondent in the following terms: a. Declaration that termination of employment was unfair. b. Equivalent of 3 months gross salary as per Clause 31 of the employment contract Kshs.2,109,051.00 c. Commuter allowance for 3 months. d. Costs of the suit. e. Interest at court rates from the date hereof till payment in full. Orders accordingly.” Decision 54. I do uphold the decision in Akama v Kisii University & 2 others [2025] KEELRC 109 (KLR), to hold that the trial court erred in fact and law in awarding the respondent salary for the 14 months while the respondent had no proof of having been available to work /worked. Section 17(1) of the Employment Act provides that-‘.Subject to this Act, an employer shall pay the entire amount of the wages earned by or payable to an employee in respect of work done by the employee in pursuance of a contract of service directly, in the currency of Kenya.’ The court nds that the documentary evidence by the appellant of the respondent having absconded work post the arrest was not rebutted. Whether the Trial Court Erred in the Relief Awarded. 55. The trial court held there was constructive dismissal and awarded 1 month notice and 3 months compensation for unlawful termination. The trial court further awarded salary for 14 months not paid. The court nds that even where the employee absconds, the burden lies with the employer to bring the employment to an end fairly and lawfully by compliance with section 41 of the Employment Act, to wit:41. Notication and hearing before termination on grounds of misconduct https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2488/eng@2026-09-18 10

page 10 of 13

(1) Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the 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 the employee shall be entitled to have another employee or a shop oor union representative of his choice present during this explanation. (2) Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1) make.’ This was not done. 56. The Court nds that the respondent was not aorded opportunity to explain his absence from work. The employer knew he had been arrested. I do nd that the trial court correctly found the facts before it disclosed a case of constructive dismissal though not specically pleaded. This was not a new cause of action as the nding owed logically from the facts before the court. The employment was not in dispute, the lack of termination of contract was not in dispute, the stoppage of salary payment was also not in dispute. The forgoing support a nding of constructive dismissal. 57. On nding a case of unfair termination, the automatic duty of the court is to consider remedies under section 49 of the Employment Act pursuant to section 50 of the Employment Act, to wit: 50. Courts to be guided In determining a complaint or suit under this Act involving wrongful dismissal or unfair termination of the employment of an employee, the Employment and Labour Relations Court shall be guided by the provisions of section 49.’ 58. Section 49(1) of the Employment Act states- ‘49. Remedies for wrongful dismissal and unfair termination, (1) Where in the opinion of a labour ocer summary dismissal or termination of a contract of an employee is unjustied, the labour ocer may recommend to the employer to pay to the employee any or all of the following—(a)the wages which the employee would have earned had the employee been given the period of notice to which he was entitled under this Act or his contract of service; (b) where dismissal terminates the contract before the completion of any service upon which the employee's wages became due, the proportion of the wage due for the period of time for which the employee has worked; and any other loss consequent upon the dismissal and arising between the date of dismissal and the date of expiry of the period of notice referred to in paragraph (a) which the employee would have been entitled to by virtue of the contract; or https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2488/eng@2026-09-18 11

page 11 of 13

(c) 59. the equivalent of a number of months wages or salary not exceeding twelve months based on the gross monthly wage or salary of the employee at the time of dismissal.’ The Supreme Court in Ken freight (E.A) Limited v Benson K. Nguti SC Pet. No. 37 of 2018 [2019] eKLR explained the applicability of the provisions of Section 49 as hereunder;“ …..What then should be the correct award on damages be based on? Having keenly perused the provisions of Section 49 of the Employment Act, we have no doubt that once a trial court nds that a termination of employment as wrongful or unfair, it is only left with one question to determine, namely, what is the appropriate remedy?’ 60. The court, in the upshot, nds that despite the lack of a specic prayer for constructive dismissal or remedies for unfair termination, the trial court did not err in nding constructive dismissal and awarding the remedies, as the facts before the court disclosed unfair termination. 61. The court already found the award for salary was erroneous and contrary section 17 (2) of the Employment Act to wit(2) An employer shall pay wages to an employee on a working day, and during working hours, at or near to the place of employment or at such other place as may be agreed between the employer and the employee.’ 62. The respondent did not prove on balance of probabilities that he reported to work subsequent to the arrest on 19th July 2018. The award was in error as he did not work and was not on the shop oor to be allocated work. The belated allegations only appearing at the hearing and not pleaded, of having been turned away by the guard, were not proved on a balance of probabilities. The respondent did not know the name of the guard who turned him away, did not state the actual date he returned and was turned away and did not provide evidence of having called the employer on being stopped at the gate. The court noted that the respondent had been employed since 2004 (p-exhibit1) and thus must have known his employer's telephone number. The award for the salaries cannot stand and is set aside. 63. On the remedies of notice and compensation, I nd the same was merited and in accordance with section 49 of the Employment Act. The notice was due under section 35 of the Employment Act, and the compensation equivalent of 3 months salary was reasonable, taking into account the long period of service being from 10th June 2010 (page 25 of RoA, letter to labour ocer) to the date of arrest of 19th July 2018. On payable salary , P-exhibit 4 was a payslip of Kshs. 12,075 gross salary. The respondent pleaded the net salary. Under section 49 the applicable salary is gross salary. To that extent, I interfere with the awards of notice pay and the compensation to reect gross salary. In (Mbogo V Shah [1968] EA Page 93 De Lestang V.P (As He Then Was) Observed At Page 94: “ I think it is well settled that this court will not interfere with the exercise of its discretion by an inferior court unless it is satised that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.’’ https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2488/eng@2026-09-18 12

page 12 of 13

Disposition 64. The appeal is allowed partially. The award of unpaid salary is set aside. The Judgment and Decree of the Hon. M. A. Nanzushi (SPM) delivered on 10th December 2025 in Mavoko MCELRC Cause No. E509 of 2023is set aside and substituted as followsJudgment is entered for the claimant against the 1st defendant as followsNotice pay of 1 months salary Kshs. 12,075/3 months compensation for unlawful termination Kshs. 36,225/-. costs and interest.’ 65. On appeal, I make no order as to costs as the appeal was successful partially. Each party to bear their own costs. 66. It is so ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT MACHAKOS THIS 18TH DAY OF SEPTEMBER, 2026. JEMIMAH KELI, JUDGE. In the presence of: Court Assistant: Otieno Appellant – Ogara – I seek stay of 30 days Respondent – Court Order A stay of 30 days is granted. JEMIMAH KELI, JUDGE. 18/09/2026 https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2488/eng@2026-09-18 13

page 13 of 13