Suffix Investment Limited v Ibrahim Okonda Nyangweso

i. The Learned Magistrate erred in law and fact in failing to determine the terms of engagement including salary and mode of payment contrary to established principles. ii. The Learned Magistrate erred in law and fact by castigating the Respondent by calling it inhuman without evidence. iii. The learned Magistrate erred in both fact and law in holding that the Appellant terminated the Respondent's employment contrary to the unchallenged evidence on record and the evident discrepancies by the Respondent on the circumstances of his exit from employment. iv. The learned magistrate erred in holding that the Appellant prevented the Respondent from entering the work premises without any evident to this effect and contrary to the unchallenged evidence on record that the Respondent had not obtained a gate pass to access the work premises. v. The learned magistrate erred in holding that the Respondent lost his good heath by reason of working for the Respondent without any expert medical evidence to this effect and contrary to evidence adduced before the court. vi. The Learned Magistrate erred in holding that no proper procedures were undertaken to afford the Respondent the opportunity to be heard by ignoring the evidence to the effect that the Respondent left the workplace due to medical reasons and did not report back or provide medical certificates to justify his continued absence from the workplace. vii. The learned Appellant's magistrate erred in disregarding the evidence that the Respondent was never JUDGMENT APPEAL NO. E364 OF 2025 2

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dismissed from employment but absented himself from the workplace after leaving for medical reason only to turn back and allege unfair termination of employment. viii. The Learned Magistrate erred in granting the reliefs sought by ignoring the Appellant's evidence adduced during trial and submissions in this regard. ix. The learned Magistrate erred in holding that the claim for salary arrears was proved despite the evidence on record including evidence of absenteeism by the Respondent on the alleged months when the said salary is said to have remained unpaid. x. The learned magistrate wrongly exercised her discretion in awarding termination 10 month's citing the compensation health for condition unfair of the Respondent and his inability to secure another job a presumption of fact not supported by evidence. xi. The learned Magistrate erred in both law and fact in holding that the Appellant had failed to discharge the burden under section 43 and 45 of the Employment Act yet the Respondent was never terminated from employment. xii. The learned Magistrate erred in her exercise of discretion to condemn the Appellant to pay cost without giving any reasons or justification for such an Order. 2. The Appellant therefore prayed that the Appeal be allowed with costs of this appeal and that the judgment of subordinate and consequential decree delivered on 30th September, 2025 be set aside and the Respondent’s claim be dismissed. JUDGMENT APPEAL NO. E364 OF 2025 3

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3. The Appeal was disposed of by written submissions. APPELLANT’S SUBMISSIONS 4. The Appellant’s Advocates Amalemba and Associates Advocates filed written submissions dated 20 th March, 2026 and supplementary submissions dated 6th July 2026 and submitted among others that: i. On the issue of whether the Respondent was unfairly terminated counsel relied on section 43 of the Employment Act and section 45 on the proof of reasons for termination and unfair termination where there is no valid reasons and procedure followed respectively. Counsel also relied on section 47(5) of the Employment Act on the respective burden of proof where employee needs to demonstrate that termination which was unfair happened then the burden shifts to the employer to justify the grounds of termination. ii. It was submitted that under section 43 of the Act the reasons for termination should be matters that the employer genuinely believed to exist which caused the termination of the employee’s services. Reliance was placed on the case of Kenya Revenue Authority versus Reuwel Waithaka Gitahi & 2 Others (2019) eKLR on this assertion of the reasonable test of an employer. iii. It was submitted that at paragraph 14 of the Claim the Respondent alleged that on 18th October, 2021 while at JUDGMENT APPEAL NO. E364 OF 2025 4

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work he collapsed and was taken to Kitengela Medical services where he was diagnosed with recurrent left lingual hernia and surgery was recommended. That he then proceeded on leave and on his return on 22 nd November, 2021 he was denied entry to the company premises by the guards. iv. Counsel submitted that on the 18th October, 2021 the Appellant’s attendance records showed that the Respondent was absent from workplace. That the evidence of collapsing at work place fails. Secondly the company engaged to provide security at Kapa Oil Refineries Limited was KK Security engaged by Kapa and not the Appellant. That the Respondent sent a message to the director on 5 th January, 2022 alleging that he was denied entry to the premises on 12 th November, 2021 because he did not have a gate pass. v. Counsel submitted that the Respondent contradicted himself on the date when he was allegedly terminated from employment and failed to prove termination of employment. That the Appellant issued gate pass for its employees at the start of each month and since the Respondent was absent his last gate pass was in October, 2021 and he did not secure a gate pass for November, 2021. vi. It was submitted that even though the Respondent further stated that he attempted to inform his director JUDGMENT APPEAL NO. E364 OF 2025 5

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and his call went unanswered he did not adduce evidence of any call logs and any message apart from the one sent on 5th January, 2022 which contradicted his evidence that he was terminated on 22 nd November, 2021. That the Respondent did not prove termination of his employment in the first instance and as such the Appellant could not be called upon to justify the reason for termination. That he did not discharge his burden of proof that he was unfairly terminated. vii. Counsel relied on the case of Ayuma v Amunga (2025) KLR on the respective burden of proof. That the Appellant confirmed that on 19 th October, 2021 the Respondent was taken in for medical treatment and the Appellant never heard from the Respondent again. That the attendance records of the Appellant confirmed this position where from 19 th October, 2021 the Respondent was marked absent all through which was confirmed by the Respondent’s medical Report which showed the date of admission as 19 th October, 2021 where he was discharged on 22nd October, 2021. viii. It was submitted that despite being discharged on 22 nd October, 2021 the Respondent did not present any medical certificates or sick sheets to justify his continued absence from workplace at all and did not communicate with the Respondent’s director until 5 th JUDGMENT APPEAL NO. E364 OF 2025 6

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January, 2022. That the Respondent left employment on 19th October, 2021, and he did not contact the Appellant’ director to inform him that he had recovered and ready to work to allow the Appellant process a gate pass for him to access the premises at Kapa Oli Refineries Limited which he knew he could only access with a gate pass. ix. It was submitted that even if it was a termination how could a security guard from a different entity terminate his services. That after 19th October, 2021 the Respondent went absent without any sick off sheets to justify his continued absence from workplace. Reliance was placed on the case of Aegis Construction Limited v Kihenja(2025) KEELRC 2375(KLR) on what a sick employee should do to notify employer and seek sick off if not in a position to continue working. x. Reliance was also placed on the case of Baru v Kiara (2025) KEELRC 2381(KLR) on when employee leaves employment quietly the burden should not be shifted to the employer unless they raise defense of desertion. That there was no evidence that the Respondent was dismissed from work. The Respondent left employment to attend to treatment and never returned back to work. xi. It was submitted that the Appellant knew about allegations of termination when the Respondent filed JUDGMENT APPEAL NO. E364 OF 2025 7

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his claim. That the Appellant could not be expected to conduct disciplinary hearing when the Respondent abandoned the workplace hence the trial court erred in not considering the evidence adduced by parties and finding that the Respondent’s health problems arose from working for the Appellant when the same were not backed by medical evidence. xii. On the issue of whether the Respondent was entitled to the reliefs issued by the trial court, counsel submitted that parties are bound by their pleadings and the Respondent in his claim did not seek for compensation for unfair termination. That there was no declaration for unfair termination. xiii. On notice pay it was submitted that the Respondent did not adduce evidence that he was earning Ksh. 26,700/= per month and from his testimony he confirmed he earned a daily wage of Kshs 665.00/= xiv. On compensation for unfair termination, it was submitted that the 10 months’ compensation awarded by the trial court was not justified since the Respondent was not unfairly terminated in the first instance. That the court’s finding that the Respondent may not be able to secure another job were not supported by any evidence. That the court based its decision on assumptions instead of law and facts. JUDGMENT APPEAL NO. E364 OF 2025 8

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xv. On the house allowance it was submitted the Respondent did not plead how he arrived at the claimed amount and that this claim was like special damage which must be specifically proved. Reliance was placed on the case of Grain Pro Kenya Inc Limited Versus Andrew Waithaka Kiragu (2019) KLR where the court of Appeal interfered with trial court’s findings of house allowance for failure to justify how it arrived at the figures. xvi. It was the submission of the Appellant that the Respondent confirmed that he was paid a daily rate of Kshs 665 which was the minimum wage as per the applicable daily rate for a general Laborer under the Regulation of Wages (General Order) 2018. That the daily wage was usually inclusive of house allowance. Reliance was placed on Radar Limited v Muema (2026) KEELRC 152 xvii. On salary arrears it was submitted that the same had to be specifically pleaded and proved. That the trial court awarded Respondent’s claim for salary arrears from July 2020 to November 2021 without any evidence or basis in law. That there was no evidence of Respondent complaining of non-payment of his salary. That from the messages between the Respondent and the Appellant’s director at no point did he complain of JUDGMENT APPEAL NO. E364 OF 2025 9

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non-payment of salary while they communicated around those periods. xviii. It was submitted that the period the Respondent claimed payment, he did not attend to work as per attendance register. That the Respondent could not work for a period of one year four months without raising a complaint of nonpayment. That the Respondent could not be paid when he did not attend work and when he was only paid a daily wage weekly and when he did not attend he was not paid. xix. On accrued leave counsel submitted that the trial court awarded leave for 3 years and 11 months and it did not provide a basis on how it arrived at the figures of Kshs 53,700/=. That the Respondent was a casual employee and his reporting patterns irregular as evidenced by the attendance records attached and produced as evidence. xx. In the supplementary submissions on the nature of engagement of the Respondent, it was submitted that the Respondent was engaged as a casual employee whose engagements pattern were not regular a fact he admitted and which could be seen from the attendance register hence the trial court erred in finding he was not a casual employee. On the issue of whether he was a general labourer or a plant operator counsel submitted that he was a general laborer paid a daily JUDGMENT APPEAL NO. E364 OF 2025 10

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wage. That the Respondent alleged that he applied as plant operator but did not adduce the application form. xxi. It was submitted even though the employer is mandated to keep employment records under section 74 of the Employment Act the same do not prevent the employee from proving their allegations in court while relying on section 107 of the Evidence Act that he who alleges must proof. Counsel cited Nyakundi v Banbros Limited (2024) KEELRC 1771 KLR based on which it was submitted that under Section 74 of the Employment Act, the duty of keeping custody of the employment records was with the employer but the Respondent herein had the burden to produce such documents to support his claim. xxii. On the question of whether the Respondent was unfairly terminated counsel reiterated its position that the Respondent fell ill on 19 th October, 2021, he never returned to work, never communicated with the Appellant, never presented any sick off and he never sought sick off extension as per section 30 of the Act. RESPONDENT’S SUBMISSIONS 5. The Respondent’s Advocates Gachoki Muriuki & Associates Advocates filed written submissions dated 26 th June, 2026 and submitted among others that:- JUDGMENT APPEAL NO. E364 OF 2025 11

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i. On the issue of whether or not the Respondent was an employee of the Appellant counsel submitted that the Respondent proved that he was an employee of the Appellant in two aspects: that the Appellant as the custodian of its records did not dislodge the Respondent’s employment and; that even if it would be believed that the Respondent was a casual employee of the Appellant, his continued services for over 3 years converted his status to that of an employee by virtue of Section 37 of the Employment Act. ii. Counsel submitted that the Respondent provided evidence of statutory remittances on his behalf by the Appellant. There was no evidence by the Appellant on the nature of engagement with the Respondent despite it being the custodian of employment records by virtue of Section 74 of the Employment Act. iii. That there was no proof or demonstration whatsoever that the Appellant engaged the Respondent on casual basis and paid the Respondent the alleged Kshs. 665 daily. Nothing would have been easier than for the Appellant to produce either a policy document/letter of engagement to this effect, taking into account the over 3 years continuous working period, or proof of payment of the alleged daily amount of money to the Respondent. JUDGMENT APPEAL NO. E364 OF 2025 12

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iv. That the Appellant produced no casual labour policy and no payroll records to substantiate its allegations regarding its alleged nature of engagement of the Respondent. The Appellant had every opportunity and every obligation to produce such records. Its failure to do so is not a neutral omission; it is a concession that those records would not have supported its case. v. That notwithstanding, even if it were to be believed that the Respondent was engaged on casual basis by the Appellant, the longevity of his continued service with the Appellant rendered this argument by the Appellant moot. That notwithstanding, it is worth noting that the Appellant did not produce any human resource manual or policy that would lend credence to the allegation that the Respondent did not meet the threshold of employment as a plant operator. vi. It was submitted that whether the Respondent was a plant operator or a general labourer was largely irrelevant to the central issues in this appeal. What mattered was that the Respondent was an employee a status the Appellant has failed to disprove and that his employment was terminated without valid reason or fair procedure. Even the Appellant's own arguments concede the existence of the employment relationship and the Respondent's presence at the workplace; they dispute only the terms, not the fact of employment. JUDGMENT APPEAL NO. E364 OF 2025 13

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vii. It was submitted that under Section 37 of the Employment Act that continual work for a period of one month or more converts an engagement of casual employment to one that enjoys the protection and all entitlements of a contractual employment. Reliance was placed on the cases of Humphrey Omondi – VsVishnu Builders Ltd [2013] eKLR, Kesi Salim – Vs- Kwale International Sugar Co. Ltd [2017] eKLR and Joseph Okelo Adhiambo & Another –VsY.J. Elmi & 2 Others [2012] eKLR. viii. It was submitted that the Appellant's own conduct betrayed the employment relationship it sought to deny. The Appellant paid for the Respondent's hospitalization expenses when he collapsed at the workplace. An employer does not bear the medical costs of a person who was not its employee. This act of payment is a powerful, unequivocal acknowledgment of the employment bond between the parties. ix. On the issue of whether or not the Respondent’s employment was unfairly terminated it was the submission of the Respondent that the Respondent came back from seeking medical intervention following health complications because of working for the Appellant, and the Respondent was denied access to his station of employment. JUDGMENT APPEAL NO. E364 OF 2025 14

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x. It was submitted that there was no notice or prior warning given to the Respondent that on coming back to his place of employment he was informed that his services would no longer be required and/or stand effectively terminated. This was not the first time that the Respondent had gone for medical intervention regarding his health complications and come back to his station of employment. All the previous times that this happened, the Respondent was granted access to his station of employment. xi. It was further submitted that what changed this time? The Appellant did not notify the Respondent of any changes whatsoever regarding his employment with the Appellant necessitating such conduct/actions by the Appellant. The Appellant did not demonstrate and/or prove of any reasons whatsoever of its denial of the Respondent access to his station of employment effectively terminating his services with it. xii. That it was trite law that the Respondent enjoying statutory protection of the law in his employment had to be accorded fair procedure before the termination of his services. The actions of the Appellant of denying him access to his station of employment run afoul statutory and constitutional safeguards accorded the employment of the Respondent. JUDGMENT APPEAL NO. E364 OF 2025 15

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xiii. It was submitted that the law delineates a two-step process for the termination of employment of an employee. That is, the existence of valid reasons for termination (substantive justification) and the adherence to fair procedure before termination (due process). Reliance was placed on Ondari v National Hospital Insurance Fund [2025] KECA 687 where it was also submitted that the burden of satisfying both limbs rest squarely on the Appellant by virtue of Section 43(1) and Section 47(5) of the Employment Act. xiv. It was submitted that the Appellant never adhered to the substantive fairness nor the procedural fairness in determining the Respondent’s services. It was incumbent upon the Appellant to demonstrate the existence of valid reasons why the Appellant who had continued access to his station of employment for a period of over 3 years, was now suddenly not allowed such access to his station of employment. xv. It was equally incumbent upon the Appellant to demonstrate that the decision that led to denial of access of the Respondent to his station of employment was done in adherence to fairness and/or due process. Reliance was placed on the cases of Postal Corporation of Kenya v Andrew K.Tanui [2019] KECA 489 (KLR) and Kisang v Judicial Service JUDGMENT APPEAL NO. E364 OF 2025 16

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Commission (Cause E521 of 2020) (20221 KEELRC 4857 (KLR). xvi. It was submitted that the Appellant never controverted the Respondent's evidence that he was physically denied entry to the workplace upon attempting to return on 22nd November 2021. The Appellant could not absolve itself of responsibility for access to the very premises to which it deployed the Respondent. xvii. That the Appellant's own evidence was that it issued monthly gate passes to its employees. The Respondent was absent in October 2021 due to a medical emergency, an emergency for which the Appellant footed the bill. The Appellant, knowing the Respondent was hospitalized, never issued him a gate pass for November 2021, and then used its own failure to issue a gate pass as evidence that the Respondent had abandoned employment. This is the very epitome of a procedural trap. xviii. It was submitted that the Appellant engineered the conditions that would prevent the Respondent's return and now sought to benefit from the situation it created. The constitutional imperative of fair labour practices under Article 41 envisions both substantive justification and due process. xix. The Respondent also submitted that allegations of absenteeism by the Appellant could not stand in face JUDGMENT APPEAL NO. E364 OF 2025 17

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of the constitutional imperative of fair labour practice and the already enunciated jurisprudence that alleged absenteeism ought to be followed by a robust procedure before termination of employment of an employee. They cited Koppert Biological Systems Limited –Vs- Peter Njoroge Chege C.A. Civil Appeal No. E027 of 2020 on efforts made to reach the absconding employee by the employer. That the Appellant made no such efforts. It did not write to the Respondent. It did not call. It did not serve any notice. xx. That in any case due process ought to have been followed, even in circumstances of alleged absenteeism. The reason for this is to afford an employee an opportunity to be heard and not to be arbitrarily terminated from employment. That the Appellant's reliance on the cases of Baru v Kiara [2025] KEELRC 2381 (KLR) and Aegis Construction Limited v Kihenja [2025] KEELRC 2375 (KLR) to support its "abandonment" argument was misplaced and distinguishable. xxi. On the issue of whether or not the findings by the lower court should be disturbed it was submitted that the decision of the lower court could not be faulted in light of the termination circumstances from of employment. the Respondent’s Moreover, the Respondent’s health condition suffered because of his JUDGMENT APPEAL NO. E364 OF 2025 18

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working with the Appellant creating aggravating circumstances that justified the lower court’s decision. The Respondent worked for over three years, was hospitalized during his employment, his health was compromised by his service, and he was denied the most basic procedural fairness. 10 months' compensation was neither excessive nor perverse in these circumstances. xxii. It was submitted that the Appellant contended there was no evidence of a monthly salary of Kshs. 26,700. It was submitted that the trial court was entitled to make a finding on salary based on the totality of the evidence before it, and that the Appellant as the party with all payroll records failed to produce those records. The adverse inference must run against the Appellant, not the Respondent. In any event, regardless of the exact salary figure, the entitlement to notice pay was uncontroverted: The Respondent was dismissed without any notice whatsoever. His entitlement to a month's pay in lieu of notice followed inexorably from the undisputed facts. xxiii. It was submitted that for the same reasons, the employer's failure to maintain and produce leave records the accrued leave award must stand. The trial court's computation was based on the Respondent's pleaded figures, unchallenged by any documentary JUDGMENT APPEAL NO. E364 OF 2025 19

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counter evidence from the Appellant. Equally, no document produced by the Appellant demonstrated that house allowance was consolidated into whatever salary the Respondent was paid. Accordingly, the statutory entitlement applied. DETERMINATION 6. The court has considered the grounds of appeal, the record of appeal and submissions filed by the both parties herein and proceeds to determine the appeal while appreciating the role of this court sitting as first appellate court to re-analyze and reevaluate the evidence before the trial court and arrive at its own decision while appreciating that this court will have not have had the benefit of hearing the witnesses 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 awarded the Respondent notice pay of Ksh. 26,700/=, 10 months compensation for unfair termination of Ksh. 260,700/=, salary arrears of Ksh. 453,000/=, accrued leave of Ksh. 53,700/=, certificate of service and interest and costs. The Appellant as JUDGMENT APPEAL NO. E364 OF 2025 20

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Respondent in the lower court was aggrieved by the judgment and now appeals on the whole of the judgment raising 12 grounds in his memorandum of appeal which this court will condense into three main issues namely:a. Whether the trial court erred by finding that the Respondent was an employee of the Appellant who had converted to term employee. b. Whether the trial court erred by finding unfair termination. c. Whether the trial court erred by awarding the reliefs to the Respondent. Whether the trial court erred by finding that the Respondent was an employee of the Appellant who had converted to term employee 8. The Respondent alleged that he worked for the Respondent from 2018 to November 2021 when he was unfairly terminated after he fell sick and went to seek medical attention which the Appellant paid for and he was denied entry to the premises. That he was employed as a plant operator at a monthly salary of Kshs 26,700/. The Appellant on the other hand alleged that the Appellant was employed as a general labourer on casual basis; his pattern was irregular to convert to term employee. JUDGMENT APPEAL NO. E364 OF 2025 21

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9. This court notes that the employment herein was oral in nature which offended sections 8, 9 and 10 of the Employment Act which required the employment contract to be reduced in to writing. Section 10(7) of the Act places the burden of proving or disproving an alleged term on employer where they do not produce a written contract. 10. In addition, section 74 of the Employment Act mandates the employer as the custodian of employment records to produce all employment records to prove or disprove a term alleged by the employee. The Appellant produced only the attendance registers but not pay rolls which would support its assertion that he was a general laborer paid daily wage of Ksh 665/= as alleged. The Appellant was the custodian of employment records and should have rebutted the Respondent’s assertions. 11. This court notes that the NSSF statement ran from 2018 to 2021 the period the Appellant alleged it employed the Respondent and the date of employment was indicated therein as January, 2018. These evidence of NHIF and NSSF was produced by the Respondent. Without any other evidence from the Appellant this court proceeds to find that the Respondent JUDGMENT APPEAL NO. E364 OF 2025 22

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was employed in 2018 to when he was hospitalized and admitted in October, 2021 18th to 22nd October when he was discharged. 12. From the NHIF and NSSF statement this court is tasked to find the nature of engagement between the parties. The court in the case of Krystalline Salt Limited vs Kwekwe Mwakele & 67 Others [2017] eKLR defined the different engagements as follows:"The Employment Act recognizes four main types of contracts of service: contract for an unspecified period of time, for a specified period of time, for a specific task (piece work) and for casual employment..............The decision to elect which form of employment to go for, either as an employee or employer will depend on a number of factors, but the dominant consideration is, for the employee, the earnings and other physical conditions of employment, and on the other hand, savings for the employer." 13. The Appellant alleged that the Respondent was a casual employee who never worked for consecutive three months to be converted to a permanent employee as per section 37 of the Employment Act. Section 37(1) of the Employment Act provides as follows:(1) Notwithstanding any provisions of this Act, where a casual employee― JUDGMENT APPEAL NO. E364 OF 2025 23

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(a) works for a period or a number of continuous working days which amount in the aggregate to the equivalent of not less than one month; or (b) performs work which cannot reasonably be expected to be completed within a period, or a number of working days amounting in the aggregate to the equivalent of three months or more, the contract of service of the casual employee shall be deemed to be one where wages are paid monthly and section 35 (1) (c) shall apply to that contract of service. 14. The Appellant maintained that the patterns the Respondent worked were irregular. The Act does not presume a continuous three months period but three months period in aggregate. This court appreciates that the Act envisages a casual employee to be converted to term contract. The court has amplified this position as was held in the case of Silas Mutwiri vs Haggai Multi-Cargo Handling Services Limited [2013] eKLR that: “The Employment Act, 2007 has now created a fundamental shift from the previous Employment Act, Cap 226 with regard to who a casual employee is. This followed many decades of abuse, violation and disregard of the rights of workers who were classified as casual workers or casual labourers. This shift has extensive ramifications as any employer who employs an employee for more than three (3) consecutive months and or is on a job that is not expected to end or be finished within this time, the law creates a mandatory provision and coverts such casual employment into term contract status.” JUDGMENT APPEAL NO. E364 OF 2025 24

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15. In this case was the Respondent a casual employee forever or was he ever converted to a term employee? The Black’s law dictionary 9th Edition defines a casual employment as ‘work that is occasional, irregular and for a short period.’ In addition, section 2 of the Employment Act defines a casual employee as ‘means a person the terms of whose engagement provide for his payment at the end of each day and who is not engaged for a longer period than twenty-four hours at a time’ 16. The court notes that even if the Respondent was a casual employee as alleged by the Appellant he converted to term employee under the above section since he was paid on weekly basis and he was a member of NSSF where the Respondent deducted and remitted NSSF dues from January, 2018 to October, 2021 on most months. 17. This court does not agree with the Appellant that it could make NSSF and NHIF deductions for an employee unless they worked continuously for it. The NSSF and NHIF remittances coupled with attendance registers lead this court to the conclusion that the Respondent was never a casual employee JUDGMENT APPEAL NO. E364 OF 2025 25

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but a term employee employed in fact as a plant operator since there was no evidence to the contrary.This court therefore upholds the trial court’s decision that the Respondent had converted to a term employee by dint of section 37 of the Employment Act. Whether the trial court erred by finding unfair termination 18. The Respondent submitted that he was taken ill and when he resumed work he was denied entry in to premises. That it was not the first time he fell ill and resumed work thereafter. The medical records show that the Respondent was sickly and even advised to do lighter duties due to his condition as early as mid-2020. The case of the Appellant on the other hand was that the Respondent voluntarily left employment after a series of absenteeism from work. There were however no records produced by both parties which demonstrated that the Respondent had health challenges. 19. The Appellant stated that the Respondent did not obtain the requisite gate pass to access the security gate having absconded duty without any sick off. There was however no JUDGMENT APPEAL NO. E364 OF 2025 26

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material to show that the Respondent absconded duty. The Respondent was clearly sickly but there was no evidence declaring that at any point he was incapacitated from working. The only exemption was that he had was to work on lighter duties since his condition would be worse if he lifted heavy weights. He was under employment and he was entitled to the benefits that follow employment since it was not the first time he fell ill and resumed duties later. 20. The Appellant as the custodian of employment records under Section 74 of the Employment Act had a duty to illustrate that indeed the Appellant stopped working through absconding duty. Like the lower court, this court has no difficulty in finding that in the absence of evidence of absconding of duty, or effort by the Appellant to trace the Respondent on allegations of absenteeism, absconding or desertion of duty, the Appellant was deemed to have terminated the services of the Respondent. 21. 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 vs JUDGMENT APPEAL NO. E364 OF 2025 27

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Kenya Commercial Bank Limited (2017) eKLR among others. This court is therefore of the view that the Respondent had a duty under section 47(5) of the Employment Act to prove that termination occurred and that the trial court was correct in evaluating the circumstances in this case of the nature of work, terms of employment and the employer-employee work relationship leading up to the end of employment in order to find an employment contract and appropriately infer the terms of employment that could not be expressly found. 22. Under Section 44(4) (a) of the Employment Act, absconding duty by an employee constituted gross misconduct and had the effect of rendering an employee liable for summary dismissal. The Appellant appeared to have heavily relied on the defence of absconding duty that the Respondent had no intention of returning to the place of work, albeit without laying before the trial court any attempts to trace and call the Respondent back to duty if at all he absconded. On the issue of desertion the court is well guided by the sentiments in the case of Stanley Omwoyo Onchweri v Board of Management Nakuru JUDGMENT APPEAL NO. E364 OF 2025 28

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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 demonstrated by showing leaving. absence of Such intention may be communication from the employee, duration of absence, impact of the absence and nature of employee’s duties. 23. The Appellant’s case was that the last day the Respondent worked was 19th October 2021. The Respondent stated the last day to be 22nd November 2021. According to the Appellant, this was a contradiction on the part of the Respondent in his testimony. It would only matter if the contradiction was material to the Respondent’s case. Respondent was admitted on What is clear is that the 19th October, 2021 and discharged on 22nd October, 2021. It is also clear it was not the first time he fell sick. 24. The Appellant never showed any efforts 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 JUDGMENT APPEAL NO. E364 OF 2025 29

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the Respondent under Section 41 of the Employment Act after he allegedly failed to report on duty. 25. It was not the case of the Appellant that at any given point, the salary of the Respondent was withheld, deducted or surcharged and the Respondent was notified prior to such adverse action as there was no disciplinary action for irregular work attendance or failure to report for his duties. The case of the Appellant that the Respondent was not entitled to salary arrears was therefore not merited on this basis. 26. It was held in the case of Richard Kiplimo Koech Vs Yuko Supermarket Ltd [2015] eKLR that absconding duty was an act of misconduct on the part of the employee, in which case the requirements of Section 41 of the Employment Act obtain. 27. This court has in a number of times pronounced itself on issues of absconding of duties by an employee with recently in the case of Owudu v Digital Sanitation Services Limited (Appeal E109 of 2023) [2024] KEELRC 917 (KLR) (18 April 2024) (Judgment) holding 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 JUDGMENT APPEAL NO. E364 OF 2025 30

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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 Officer and any terminal dues deposited in such office. Then, the employer has undertaken its legal duty to properly end employment. 28. In this particular case no notice was issued to the Respondent upon absconding duty or to the labour office and his terminal dues deposited therein. In addition, Respondent absconded duties the Appellant if the 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. 29. 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.” 30. It is the finding of this court that 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 JUDGMENT APPEAL NO. E364 OF 2025 31

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the claims of absconding employment as advanced by the Appellant was never proved. This court therefore finds that the Appellant failed to justify the alleged grounds of absconding duty by the respondent. The court therefore upholds the trial court’s findings that the reason for the termination was not fair under section 43 of the Employment Act hence unfair under section 45 of the Act. 31. On the procedural fairness as provided for under Section 41 of the Employment Act, the 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 3 years hence the Respondent violated the clear provisions of section 41 of the Act. In this regard the 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 affected JUDGMENT APPEAL NO. E364 OF 2025 32

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employee has not been accorded a hearing in the presence of their union representative. 32. In conclusion this court agrees with the trial court’s decision and finds and holds that the Appellant’s termination was both substantively and procedurally illegal, unfair and unjustified. Whether the trial court erred by awarding the reliefs to the Respondent 33. The award of compensation for unfair termination of employment is an exercise of discretion. This court as an appellate court can only interfere with the exercise of 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 satisfied 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. 34. The trial court awarded 10 months’ salary as compensation for unfair termination. The Appellant contested this on the JUDGMENT APPEAL NO. E364 OF 2025 33

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basis that there was no unfair termination. This court has found as the trial court that the Respondent was unfairly terminated hence entitled to the compensation under Section 49(1) of the Employment Act. The court notes that the award of compensation is discretionary but the court should be guided by considerations set out under Section 49(4) of the Employment Act in awarding the compensation under that section. 35. This court appreciates the fact that the Respondent had served the Appellant for more than 3 years during which he also faced health challenges that originated from his employment. The records that were produced also justify the finding by the trial court. This court therefore does not consider the award of 10 months as compensation for unfair termination excessive and or erroneous exertion. This ground of appeal therefore fails. 36. The award of one-month’s salary in lieu of notice was also justified after finding the Respondent was unfairly terminated without notice as provided for under section 36 of the Employment Act. JUDGMENT APPEAL NO. E364 OF 2025 34

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37. On the claim for leave pay and house allowance the same have been held to be continuous injuries where a claim must be filed within 12 months after cessation of employment as per section 90 of the Employment Act. In this case the employment ended in November, 2021 and the claim filed in February, 2022 hence within time. 38. Leave entitlement is guaranteed under section 28 of the Employment Act at least 21 working days per year. The same is a specific damage which has to be specifically pleaded and proved. The Respondent claimed leave pay for the entire period worked. The Appellant did not produce records to show that the Respondent took leave or was paid in lieu of leave. For this reason, the court is unable to disturb the finding of the trial court that the Respondent was entitled to leave claimed. 39. On the claim for house allowance which the trial court disallowed this court notes that house allowance is also provided for under section 31 of the Employment Act where the employee is not housed by the employer and their salary not consolidated. In this case the Respondent alleged that his salary was Kshs 26,700/= and it was not inclusive of house JUDGMENT APPEAL NO. E364 OF 2025 35

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allowance. The regulation of wages should guide this court accordingly. The Regulation of Wages (General) (Amendment) Order, 2018 provides that Machine operator would be paid around 18,319/= if house allowance is added then the Respondent was paid above the minimum wage hence not entitled to house allowance as held by the trial court. 40. On the issue of salary arrears, the court has established above that the same was properly awarded. The same is therefore upheld. 41. The Respondent is entitled to certificate of service as provided for under section 51 of the Employment Act if the same has not yet being issued. 42. In the upshot the Appeal is devoid of merit and is hereby dismissed with costs to the Respondent. 43. It is so ordered. Dated at Nairobi this 22nd day of September, 2026 Delivered virtually this 22nd day of September, 2026 Abuodha Nelson Jorum Presiding Judge-Appeals Division JUDGMENT APPEAL NO. E364 OF 2025 36

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