Miles Motors Ltd v John Makori Kenyanya

vi. The Learned Magistrate erred in fact and law by failing to consider the Appellant’s submissions and authorities. 2. The Appellant therefore prayed that the judgement and decree be set aside and the Appellant’s appeal be allowed. 3. The Appeal was disposed of by written submissions. Appellant’s Submissions 4. The Appellant’s Advocates Kuloba Wasike and Co. Advocates led written submissions dated 18th May, 2026 submitted among others that:i. The Appellant never terminated the Respondent’s employment. The Respondent was issued with a warning letter on 3rd July, 2023 while working but he declined to receive the same and opted to walk out of employment. ii. Counsel relied on Section 47(5) of the Employment Act on respective burden of proof. Further it was submitted that the Respondent did not produce any evidence to show that he was terminated from employment by the Appellant. Reliance was placed on the case of Julius Kyalo Malonza v Ruth Osolo t/a Eraeva Catering Services [2021] eKLR where it was submitted that the Claimant ought to establish, they were unfairly terminated. iii. It was also the submission of the Appellant that in Rebecca N. Nyangolo v Prashant Raval [2021] eKLR the court while holding that the Claimant was not dismissed from employment found the Claimant to have quit employment at own volition and found no unfair dismissal. iv. Counsel further submitted that house allowance was awarded without evidence and contrary to the law. Counsel relied on Section 31 of the Employment Act on house allowance entitlement of an employee. That consolidated salary already included a housing element. That an employment contract can be either oral or in writing and in this case the Respondent himself conrmed during cross-examination that his salary was consolidated to include house allowance. v. It was submitted that the Respondent was awarded a total sum of Kshs. 207,000/= as house allowance by the court without any justication. Respondent’s Submissions 5. The Respondent’s Advocates Lemmy Regau & Co. Advocates led written submissions dated 13th July, 2026 and submitted among others that:i. It was trite law that the burden was on the employer to justify dismissal. As such, there was no proof that the Respondent voluntarily left employment. That the Respondent could not have left work voluntarily when the Appellant acknowledged the period of leave days taken and so the Respondent was on unpaid leave. ii. It was the submitted that the Appellant did not follow the requisite procedure for termination. Reliance was placed on Owudu v Digital Sanitation Services (2015) eKLR in which it was submitted that there was no evidence that the Respondent voluntary left employment. iii. It was submitted that the Appellant was the custodian of the records under section 74 of the Employment Act and which they failed to produce to justify termination. Further reliance was placed on the case of Kenfreight East Africa Limited v Benson Nguti (2018) e KLR. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2505/eng@2026-09-22 2

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iv. On house allowance, it was submitted that the award was proper. Reliance was placed on section 31 of the Employment Act that the employer was obliged to provide reasonable accommodation as rent for each of the employees in addition to wages or salary. The calculation of house allowance, it was submitted was proper and based on 7.7 years worked. Reliance was also placed on the case of Arasa v Benori Agencies and Services (2022) eKLR to submit that a 15% of basic salary as house allowance was reasonable. Determination 6. The court has considered the grounds of appeal, the record of appeal and submissions led by the both parties herein and proceeds to analyse them while appreciating the role of this court as to reanalyse and re-evaluate the evidence in the trial court and arrive at its own decision while placing reliance on the case of Gitobu Imanyara & 2 others v Attorney General [2016] eKLR among others. 7. In this case, the judgment of the trial court was that the court awarded the Respondent notice pay of Ksh. 15,000/=, house allowance of Ksh. 207,900/=, 5 months compensation for unfair termination of Ksh. 75,000/= and interest and costs. The Appellant as Respondent in the lower court was aggrieved by the judgment and now appeals on the whole of the judgment raising 6 grounds in its memorandum of appeal which this court will condense in to two issues namely:a. Whether the trial court erred by nding unfair termination and awarding the resultant terminal dues b. Whether the trial court erred by awarding the Respondent house allowance of Ksh. 207,900/=. Whether the trial court erred by nding unfair termination and awarding the resultant terminal dues 8. It is not in dispute that the Respondent was employed by the Appellant as a cleaner at a remuneration of Ksh. 15,000/= per month. The Respondent produced the letter of employment dated 8th November 2019. The employment per the said letter was eective 10th October 2015. During his testimony in cross examination, the Respondent stated that the letter of appointment indicated that he started employment on 10th October 2015. It was his case that there was no letter of termination issued upon him. 9. The case of the Appellant on the other hand was that the Respondent voluntarily left employment. In cross examination, the Appellant’s witness stated that the Respondent stopped working. He did not do a resignation letter. In any case the Appellant never produced any evidence of the Respondent resigning and there was no material to show that the Respondent absconded duty. 10. The Appellant as the custodian of employment records under section 74 of the Employment Act had a duty to illustrate indeed the Appellant stopped working at once and that he was issued with a warning letter. The Respondent admitted knowledge of the warning letter which he refused signing stating the allegations were not true. Like the lower court, this court has no diculty on nding that in the absence of evidence of resignation or absconding of duty, or eort by the Appellant to trace the Respondent on allegations of voluntary desertion of duty, the Appellant was deemed to have terminated the services of the Respondent. 11. The courts have always held that for termination to pass fairness test there should be both substantive and procedural fairness. This court refers to the holding in Janet Nyandiko versus Kenya Commercial Bank Limited (2017) eKLR among others. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2505/eng@2026-09-22 3

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12. This court is of the view that in as much as the Respondent had a duty under section 47(5) of the Employment Act to prove that termination occurred the trial court was correct in evaluating the circumstances in this case of voluntarily leaving employment after the Respondent was issued with warning letter. Under Section 44(4) (a) of the Employment Act, absconding duty by an employee constituted gross misconduct and renders an employee liable for summary dismissal. The Appellant appeared to have heavily relied on the defence of desertion that the Respondent had no intention of returning to the place of work. 13. On the question of desertion the court is well guided by the sentiments in the case of Stanley Omwoyo Onchweri v Board of Management Nakuru YMCA Secondary School [2015] eKLR, where the court held that:18. Desertion can only take place where an employee leaves employment with the intention of not returning or formulating such intention not to return after leaving. Such intention may be demonstrated by showing absence of communication from the employee, duration of absence, impact of the absence and nature of employee’s duties. 14. The Appellant’s case was that the last day the Respondent worked was 3rd July 2023. This was also the case of the Respondent. The Appellant never showed any eorts of contacting the Respondent if at all he absconded duties. In addition, if the Respondent absconded duties the Appellant did not demonstrate that it commenced any disciplinary action against the Respondent under Section 41 of the Employment Act after he allegedly failed to report on duty. 15. The court is not equally satised without records that the Respondent’s employment was not regular throughout the period of employment. The Respondent alleged that he worked for the Respondent from 2015 up to 2023 when he was terminated and that he took a break of 10 months in 2020 and resumed in 2021. 16. From the NSSF statement it can be seen the remittances started in March 2016 whereas from the employment contract the Respondent’s employment was eective October 2015 there was a break from November 2020 to November 2022 which is a break of around 2 years which the Respondent explained that he resumed in 2021 but the Appellant was not remitting his dues. This can easily be believed since the Appellant also never remitted dues for 2015. 17. The Respondent after resuming work in 2021 worked up to July 2023 before he was terminated; which then gives an aggregate period of service of more than 7 years. It was not the case of the Appellant that at any given point, the salary of the Respondent was withheld, deducted or surcharged or that the Respondent was warned or invited to any disciplinary action for irregular work attendance or failure to report for his duties. 18. It was held in the case of Richard Kiplimo Koech vs Yuko Supermarket Ltd [2015] eKLR that absconding duty is an act of misconduct on the part of the employee, in which case the requirements of Section 41 of the Employment Act obtain. 19. In Joseph Nzioka v Smart Coatings Limited [2017] eKLR Nduma J. observed that: “ Dismissal on account of absconding must be preceded by evidence showing that reasonable attempt was made to contact the employer concerned and that a show cause letter was issued to such employee calling upon such employee to show cause why his services should not be terminated on account of absconding duties.” https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2505/eng@2026-09-22 4

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20. Just like the trial court observed in the case of Owudu v Digital Sanitation Services Limited (Appeal E109 of 2023) [2024] KEELRC 917 (KLR) (18 April 2024) (Judgment) the court held as follows: 17. First, an employee does not terminate his employment in a case of alleged abscondment. When faced with an employee who fails to attend work, the employer must issue notice to the employee to render an account over his misconduct. Where the employee persists and fails to abide by such directions, the employer is required to issue notice terminating employment or summary dismissal through the last known address of the employer. 18. Further, under Section 18(5) (b) of the Act, where the employer cannot trace the employee, notice must be issued to the Labour Ocer and any terminal dues deposited in such oce. Then, the employer has undertaken its legal duty to properly end employment. 21. This therefore means the Respondent could not terminate his employment on grounds of desertion. There was no notice given to him on the absconding or termination notice issued to labour oce or his dues deposited with labour oce. The Appellant had a duty under section 47(5) of the Employment Act to justify the grounds of termination in this case absconding of work since the claims of voluntarily leaving employment as advanced by the Appellant was never proved. 22. This court nds that the Appellant failed to justify the grounds of voluntarily leaving or absconding duties. This court therefore upholds the trial court ndings that the reason for the termination was not fair under section 43 of the Employment Act hence unfair under section 45 of the Act. 23. On the procedural fairness as provided for under Section 41 of the Employment Act this court notes that the same was never adhered to as the Appellant as seen above never illustrated commencing a disciplinary process or giving the Respondent any hearing despite working for it for more than 7 years hence the Respondent violated the clear provisions of section 41 of the Act. 24. This court is guided by the holding in the case of Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited [2014] eKLR that: Section 41 of the Employment Act is couched in mandatory terms. Where an employer fails to follow these mandatory provisions, whatever outcome of the process is bound to be unfair as the aected employee has not been accorded a hearing in the presence of their union representative. 25. In conclusion this court agrees with the trial court decision and nds that the Respondent’s termination was both substantively and procedurally illegal, unfair and unjustied. 26. Turning to the award of compensation for unfair termination as provided for under section 49(1)(c) of the Employment Act, this court appreciates that the award of compensation for unfair termination of employment is an exercise of discretion. This court as an appellate court can only interfere with such discretion if there was an error on some matters leading to erroneous decision as was held on the case of Kenya Revenue Authority & 2 others v Darasa Investments Limited (2018) eKLR where the court held; The court ought not to interfere with the exercise of discretion unless it is satised that the Judge misdirected himself in some matter and as a result arrived at a wrong decision, or that it be manifest from the case as a whole that the judge was clearly wrong in the exercise of discretion and occasioned injustice. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2505/eng@2026-09-22 5

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27. The trial court awarded 5 months’ salary as compensation for unfair termination. The Appellant contested this on the basis that there was no unfair termination. This court nds that the Respondent was unfairly terminated hence entitled to the compensation under Section 49(1) of the Employment Act. This court notes that the court should be guided by considerations set out under Section 49(4) of the Employment Act in awarding the compensation herein. 28. This court appreciates the fact that the Respondent had served the Appellant for more than 7 years in aggregate. This court therefore nds that ve months compensation was reasonable in the circumstances and not erroneous. The award of one-month in lieu of notice was also justied after nding the Respondent was unfairly terminated without notice as provided for under section 36 of the Employment Act. Whether house allowance was payable at Ksh. 207,900/= 29. On the issue of whether house allowance was payable, the Appellant contested this award on the basis that there was no evidence to support the award. The court has pronounced itself severally that these claims in nature are continuing injuries which the Claimant must le within 12 months after cessation of employment as per section 90 of the Employment Act. This court notes that the employment relationship herein ended in 3rd July, 2023 and the claim was led in August, 2023 which is within the 12 months period. 30. The Respondent was therefore entitled to house allowance. In the Recent Court of Appeal decision in The German School Society & another v Ohany & another (Civil Appeal 325 & 342 of 2018 (Consolidated)) [2023] KECA 894 (KLR) (24 July 2023) (Judgment) while relying on India decisions the court had this to say:Normally, a belated service related claim will be rejected on the ground of delay and laches or limitation. One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. Borrowing from the excerpts reproduced above and considering that the respondent continued to work under the same circumstances, we nd and hold that the breach complained of was of a continuing nature, capable of giving rise to a legal injury which assumes the nature of a continuing wrong. It follows that the appellant’s argument that the claims were time barred fails. On the contrary, the said claims fall within the ambit of a continuing wrongs contemplated under section 90. 31. From the above decision among many others not quoted it is clear this relief fall under continuing injury which was led within 12 months. On the issue of housing allowance the Appellant did not produce any evidence that the Respondent’s salary was consolidated. This is a requirement under section 31 of the Employment Act and this court upholds the same award. There was no evidence that the Respondent was housed or the Appellant provided for rent throughout the employment period. There was no payslip produced and the letter of employment referred to monthly salary and not consolidated salary. The court is inclined to uphold the nding of the trial court that the house allowance was not paid and 15% of basic salary was a reasonable provision for the house allowance. The period also used of 7.7 years was also seen to be the period worked as seen above. 32. In the upshot the Appeal is devoid of merit and is hereby dismissed with costs to the Respondent. 33. It is so ordered. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2505/eng@2026-09-22 6

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DATED AT NAIROBI THIS 22ND DAY OF SEPTEMBER, 2026 DELIVERED VIRTUALLY THIS 22ND DAY OF SEPTEMBER, 2026 ABUODHA NELSON JORUM PRESIDING JUDGE-APPEALS DIVISION https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2505/eng@2026-09-22 7

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