Jay Maharaj Hardware Limited v Peter Barasa Nyongesa

3,176 x 40 months and 17 days = 128,850 (v)Unpaid accrued leave (21,175 x 5) = 63,525 (vi)5 months compensation for unlawful dismissal (21,175 x 5) = 105,875 3. Certificate of service. 4. Cost of the suit and interest at court rate. 2. Subsequently, a decree was drawn and issued on 12th May 2025. 3. Dissatisfied with the judgment, the Appellant through Mukisu & Co. Advocates filed a memorandum of appeal dated 2nd May 2025, seeking that the entire judgment of the lower trial court be set aside and asking this court to substitute therefor an order dismissing the claim with costs. 4. The appeal is based on the following grounds – (i) The learned trial magistrate erred in law and in fact by shifting the burden of proof from the Respondent to the Appellant. (ii) The learned trial magistrate erred in law and in fact by finding that the Respondent’s services were unlawfully terminated against the weight of evidence that was tendered. (iii) The learned trial magistrate erred in law and in fact by failing to find that the Respondent deserted duty without any prior notice. (iv) The learned trial magistrate erred in law and in fact by awarding the Respondent Kshs.21,175/= being salary in lieu of the notice when the Respondent was not entitled to the said award having deserted duty. BUNGOMA ELRC APPEAL NO. E005 OF 2025 JUDGMENT 2

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(v) The learned trial magistrate erred in law and in fact by awarding the Respondent Kshs.63,325/= being unpaid accrued leave allowance in the absence of any evidence to that effect. (vi) The learned trial magistrate erred in law and in fact by awarding the Respondent Kshs.105,875/= as damages for unlawful dismissal when no evidence to that effect was tendered and when in fact the Respondent deserted duty thereby occasioning miscarriage of justice. (vii)The learned trial magistrate erred in law and in fact by awarding the Respondent damages in the absence of any evidence. 5. The appeal is opposed by the Respondent through BS Advocates LLP. 6. By consent recorded on 1st October 2025, the appeal was canvassed by way of written submissions. Mr. Mukisu for the Appellant filed written submissions dated 8th December 2025 and Mr. Kapten for the Respondent filed written submissions dated 22nd December 2025. II. SUBMISSIONS BY COUNSEL 7. Counsel for the Appellant argued the appeal in five parts each on a specific issue. The first issue was stated as – Whether the burden of proof was shifted from the respondent to the appellant. In this regard, Counsel submitted that the trial court erred in law by shifting the burden of proof of the case to the Appellant by calling upon it to BUNGOMA ELRC APPEAL NO. E005 OF 2025 JUDGMENT 3

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disapprove the allegations made by the Respondent. It was submitted that this approach was contrary to Section 69 of the Evidence Act that (s)he who alleges shall prove. It was submitted that while the Appellant as the employer was obliged to keep records of employment under Section 74 of the Employment Act, no notice to produce was issued by the Respondent in the trial and as such the presumption by the trial court that the Appellant failed to produce the same was termed as erroneous and wrong. 8. It was further submitted that in an adversarial legal system, no party has an obligation to aid the other and the burden of proof does not shift. 9. The second issue addressed by Counsel is – Whether the respondent deserted duty without prior notice or whether his services were unlawfully terminated. It was submitted that during the trial in the lower court the Respondent admitted having received a show-cause notice after he absconded duty and, even then, failed to respond to the same and thereafter deserted duty absolutely. It was submitted that the Appellant made efforts to trace the Respondent, for him to showcause why he was not reporting on duty, but the Respondent was adamant in his desertion and there was nothing more that the Appellant could have done since the Respondent could not be forced to report back to work. BUNGOMA ELRC APPEAL NO. E005 OF 2025 JUDGMENT 4

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10. It was vehemently denied that the Respondent was at any point either terminated or dismissed from his employment and hence it was submitted that the trial court fell into an error of law and fact by finding to the contrary. 11. On the award of one month’s salary in lieu of notice in the sum of Kshs21,175/=, it was submitted that since it is the Respondent who voluntarily and unilaterally deserted duty, there was no legal basis for the award of the same. 12. On the award of Kshs63,325/= being unpaid accrued leave allowance, it was submitted that it was incumbent upon the Respondent to prove all the claims in his cause. It was further submitted that no notice to produce employment records was served upon the Appellant by the Respondent and hence in making the award, the trial court unlawfully shifted the burden of proof to the Appellant. It was emphasized that the Appellant had no legal obligation to assist the Respondent in proving his case in the trial. 13. On the award of Kshs105,875/= as damages for wrongful dismissal, it was submitted that the same was wrong as the Respondent was not dismissed or terminated but left employment on his own volition. It was further submitted that the award was excessive, erroneous, and wrong. 14. Counsel for the Respondent submitted that the appeal is devoid of merits praying that the same be dismissed with costs. It was BUNGOMA ELRC APPEAL NO. E005 OF 2025 JUDGMENT 5

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submitted that for this Court to interfere with the judgment of the lower trial court, the Appellant must demonstrate that the same was either based on no evidence or, that the trial court misapprehended the evidence adduced or, that the trial court applied the wrong principles of the law. 15. Counsel for the Respondent isolated the following issues for determination by the Court – i. Whether the learned trial magistrate shifted the burden of proof; ii. Whether the Respondent deserted duty or was unlawfully terminated; iii. Whether the awards granted under Section 49 of the Employment Act were lawful and justified; iv. Whether the Appeal has merit. 16. On the first issue, it was submitted that Sections 10 & 74 of the Employment Act expressly and mandatorily place a legal duty upon an employer to keep records of employment, including those of salary and wages, leave, housing, housing allowance, et al. It was submitted that once an employee alleges a violation of his statutory or constitution rights that should ordinarily be evidenced by the records that should be in the control and possession of the employer, the burden automatically shifts to the employer to avail the records without the need of issuance of notice to produce. BUNGOMA ELRC APPEAL NO. E005 OF 2025 JUDGMENT 6

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17. It was submitted that the trial court did not shift the burden of proof to the Appellant but rather placed the same where it belonged. It was further submitted that the Respondent proved his case as required under Section 69 of the Evidence Act and that the failure by the Appellant to avail the records of employment allowed them to correctly and legally draw the right inference and presume that such records were against the Appellant’s case. 18. On the second issue, it was submitted that the purported show-cause notice dated 2nd July 2022 was issued as an afterthought after the Respondent had already issued and delivered a demand notice dated 23rd June 2022. It was further submitted that the trial court dealt with this issue at length and found that the Respondent was dismissed verbally on 17th June 2022 by an agent of the Appellant. It was vehemently submitted that the show-cause notice was intended to sanitize the illegal dismissal after the Appellant realized that the Respondent was keen on pursuing the matter through legal channels as commenced through the formal letter of demand. It was further submitted that the Appellant, if indeed the Respondent had deserted duty, failed to demonstrate any efforts made to trace the Respondent. In any event, it was further submitted, the Appellant only issued the show-cause notice after receiving the formal letter of demand, thereby confirming the mischief. BUNGOMA ELRC APPEAL NO. E005 OF 2025 JUDGMENT 7

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19. It was submitted that the Appellant violated Sections 41, 43, & 45 of the Employment Act in purporting to dismiss the Respondent in the manner that it did. 20. On the awards made, it was submitted that the award of one month’s salary in lieu of notice was lawful as no notice was issued by the Appellant to the Respondent under Section 36 of the Employment Act. Likewise, it was submitted that the award of underpayments was based on the appropriate Wage Regulation Orders as lawfully applied by the trial court in arriving at the award made. On leave pay and house allowance, it was submitted that the Appellant failed to avail the records of employment to displace the case and evidence adduced by the Respondent and hence the trial court correctly awarded the amounts claimed. 21. On the compensation awarded for the wrongful and unlawful dismissal, it was submitted that Section 49(1)(c) of the Employment Act provides for a maximum award equivalent of up to 12 months gross salary and that having found and held that the dismissal was wrongful and unlawful, the trial court’s award equivalent to five month’s gross salary was made within the law and the trial court considered factors such as length of service and the entire circumstances of the dismissal. It was submitted that the trial court was judicious in the exercise of its discretion in making the award that was neither erroneous nor excessive. BUNGOMA ELRC APPEAL NO. E005 OF 2025 JUDGMENT 8

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22. For all the foregoing, the court is urged to dismiss the appeal with costs. III. ISSUES FOR DETERMINATION 23. The most fundamental and factual background of this matter was contested by the parties. While the Appellant took the position that the Respondent deserted duty and hence left employment on his own volition, the Respondent’s case was that he was verbally dismissed without notice and no terminal benefits. The other contest in the appeal was whether the trial court erred in the awarding to the Respondent as it did. 24. In my considered view, the issues for determination by this court are the following – (i) Did the Respondent desert duty or was he wrongfully, unfairly, and unlawfully dismissed? (ii) Did the lower trial court err in making the awards that it granted to the Respondent? (iii) What orders should this court make in disposal of this appeal? VI. DESERTION OR DISMISSAL 25. This is a case that demonstrates the need of an employer to keep and maintain records of employment as required under Sections 10 & 74 of the Employment Act. Once an allegation is made or pleaded by an BUNGOMA ELRC APPEAL NO. E005 OF 2025 JUDGMENT 9

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employee, the best answer that an employer can give is to avail the records that should completely dislodge such allegations and set the record straight. An employer does not have to wait for service of a notice to produce to disprove allegations made against it. In any event, such records of employment should ordinarily and legally be in the control and custody of an employer and there is no way, unless otherwise proved, that a court may presume that an employee was in custody of the same. 26. The Respondent’s case as pleaded and supported with his written statement and testimony in court – pgs. 62-64 of the record of appeal – is that he was verbally dismissed on 17th June 2022. The Appellant took the position that the Respondent absconded duty and later deserted. What the Respondent ought to have availed in court were records of the Respondent’s duty attendance or roster confirming that indeed he absconded and later deserted. Likewise, the Appellant ought to have kept a good record of the efforts made to trace the Respondent after he allegedly deserted duty. This should have been done by way of calls data, emails sent, letters sent, or even fellow employees contacted to trace him. 27. In a thin economy like ours, it is not normal for an employee to just walk away from employment. No evidence was availed that the Respondent left for another job or that he had any reason to abscond and desert duty. BUNGOMA ELRC APPEAL NO. E005 OF 2025 JUDGMENT 10

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28. It is instructive to note that by the time the Appellant issued the show-cause letter dated 2nd July 2022, the Respondent had already instructed his lawyers to draw a demand letter dated 23rd June 2022, demanding an explanation and compensation for the dismissal. Although DW1 denied that the above letter was received by the Appellant, though sent as registered mail, my view is that the showcause notice was a disguise to sanitize the unlawful dismissal and more so after the demand notice. 29. DW1 confirmed that the Appellant subsequently engaged another driver after the Respondent allegedly failed to return to work. Be that as it may, why did the Appellant not pay any terminal dues to the Respondent or even communicate on its final decision? The Appellant did not in the minimum pay the Respondent for the 17 days worked in June 2022. All this demonstrated ill will and malice on the part of the Appellant. 30. On the foregoing issue, the trial court found that the show-cause letter was intended to cover up for the illegal and unlawful dismissal of the Respondent by the Appellant. The trial court further held that there were no records of employment availed by the Appellant to persuade the court that indeed the Respondent absconded duty. The trial court held that the Appellant failed to justify the termination under Section 47(5) of the Employment Act and also failed to prove the reason therefor under Section 43 of the Employment Act. BUNGOMA ELRC APPEAL NO. E005 OF 2025 JUDGMENT 11

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31. Upon evaluating the evidence as contained in the record of appeal, as supported by the original trial file, this Court agrees with the trial court that the Appellant indeed wrongfully and unlawfully dismissed the Respondent without notice and without any reasonable or justifiable cause. This court shall thus not disturb that finding and holding. VII. RELIEFS 32. The Court has examined the reliefs granted and, again, I find no grounds for interfering with the same. The dismissal was wrongful and unlawful and without notice and hence notice pay was rightly granted at Kshs21,175/=. On underpayments, the Court has examined the Legal Notice No. 2 of 2019 issued under the Labour Institutions Act and noted that the same came into effect from May 2019, raising the monthly salary of a driver in the category of the Respondent to Kshs18,042.85, exclusive of allowances. When house allowance is added to this at 15% (Kshs3,176.25), the gross salary comes to Kshs21,175/=. The total underpayment comes to Kshs247,000/=. The unpaid salary for 17 days amounts to the awarded sum of Kshs11,999/. Housing allowance at 15% of the pay for the entire period of employment comes to Kshs128,850/= as awarded. 33. On the leave pay, the Appellant failed to avail any records of employment to confirm that the Respondent took leave. The trial BUNGOMA ELRC APPEAL NO. E005 OF 2025 JUDGMENT 12

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court was correct and right in taking the presumption that such records did not exist or that if the same existed they were in support of the Respondent’s case hence the failure by the Appellant to avail them in court. The Court shall thus not interfere with the award of Kshs63,525/= in that regard. 34. Equally, I find no reason to interfere with the award of compensation equivalent to five months’ gross salary in the sum of Kshs105,875/=. The award was neither excessive nor unreasonable in the entire circumstances of the case. 35. A certificate of service is a statutory right for every employee under Section 51 of the Employment Act and the trial court properly so ordered. 36. However, the trial court failed to subject the awards made to statutory deductions and it is hereby ordered that the awards above be subjected to the appropriate and proportionate statutory deductions. VIII. ORDERS (i) This appeal is hereby dismissed in its entirety and the judgment and the decree of the lower trial court upheld and affirmed. (ii) The awards made shall be subjected to appropriate and proportionate statutory deductions. (iii) Costs of the trial in the lower court and of the appeal to the Respondent (the claimant in the lower court). BUNGOMA ELRC APPEAL NO. E005 OF 2025 JUDGMENT 13

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DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 24TH DAY OF SEPTEMBER 2026. .................................... DAVID NDERITU JUDGE BUNGOMA ELRC APPEAL NO. E005 OF 2025 JUDGMENT 14

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