Beyond Fruits Limited v Said Salim Lewa

Elrc Appeal No. E180 Of 2025 vehicle was supposed to carry. The manager would not accept his explanation that the load was only the 3,000 small coconuts that had been ordered, and sent him home with instructions never to report back. The Appellant tells an entirely different story. By its account, nothing of the sort could have happened on that day. It says the driver had been gone for five months by then, having stopped reporting for duty on 5th February 2021 and never returned. 2. Both accounts cannot be true. On one of them, the employer ended the relationship abruptly, without a reason proved or a hearing given. On the other, the employee walked away from his job. The date is equally contested, and it matters a great deal. On it turns not only the question whether the Respondent left or was sent away, but also whether the claim he lodged in May 2024 was within the three years allowed by law or outside them. 3. The dispute was decided without either account being tested. The trial court determined the claim on the documents filed, under Rule 59 of the Employment and 2

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Elrc Appeal No. E180 Of 2025 Labour Relations Court (Procedure) Rules, 2024. No witness gave oral evidence and none was cross-examined. The learned trial magistrate preferred the Respondent’s account, found that the termination was unfair, and awarded him Kshs. 297,960. The Appellant says that was wrong on the facts and the law, and that the claim was in any event timebarred. This appeal therefore asks, at its heart, whose version of the end of the employment relationship ought to be believed, and why. B. BACKGROUND (a) The claim 4. By a Memorandum of Claim dated 20th May 2024, the Respondent sued the Appellant in Mombasa MCELRC No. E309 of 2024. He pleaded that he was employed as a medium-size motor vehicle driver on 5th June 2019, when the Appellant was trading as Fresh An Juici Limited, and that he was issued with a fresh letter of appointment on the change of name to Beyond Fruits Limited. His duties were to transport goods from the Appellant’s suppliers to its go3

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Elrc Appeal No. E180 Of 2025 downs and to distribute goods to its customers. His monthly salary was Kshs. 16,500, which he pleaded was below the statutory minimum wage for a driver of a medium-size vehicle working in Mombasa. 5. He pleaded that on 5th July 2021 he was sent to collect coconuts from the Appellant’s supplier at Kikambala. On his return, the Appellant’s manager, whom he named as Mr. Moti Sidi Mwamleu, summoned him and accused him of carrying extra coconuts beyond what the vehicle was meant to carry. He explained that the load was only 3,000 small coconuts, as ordered, but the manager ordered him to go home with immediate effect and never to report back, because his services were no longer needed. He pleaded that on several occasions thereafter he went to the Appellant’s premises near Kongowea market and at Nyali Cinemax to ask the manager and the directors to let him resume work, without success. 6. He particularised the unfairness of the termination as: termination without notice; failure to send him any letter, 4

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Elrc Appeal No. E180 Of 2025 email, SMS or call asking him to report back to work from 6th July 2021; failure to issue a show-cause letter; failure to give a valid reason; failure to pay his terminal dues; and termination without a fair hearing. He sought a declaration that the dismissal was unlawful, and the following reliefs: (a) one month’s salary in lieu of notice, Kshs. 16,500; (b) unpaid house allowance for 25 months, Kshs. 61,875; (c) unpaid leave for two years, Kshs. 23,100; (d) underpayment for the periods 5th June 2019 to 5th June 2020 and 5th June 2020 to 5th July 2021, Kshs. 111,649.80 and Kshs. 120,953.95 respectively; (e) twelve months’ salary as compensation for unfair termination, Kshs. 198,000; and (f) service pay, Kshs. 16,500; 7. together with costs and interest, amounting in all to Kshs. 548,578.75. The claim was supported by his verifying affidavit and witness statement, and by his identity card, the 5

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Elrc Appeal No. E180 Of 2025 two letters of appointment, his pay slips and a demand letter dated 23rd April 2024. (b) The response 8. By its Response to the Memorandum of Claim, the Appellant admitted that it employed the Respondent as a driver “vide Employment Contracts issued on diverse dates”. It denied that his salary was below the minimum wage. It denied that it had terminated his employment “in the manner alleged or at all”. At paragraph 7 it pleaded that the Respondent “was not terminated by the Respondent but on his own accord absconded his duties … as from February, 2021”. At paragraph 8 it pleaded that he had left of his own accord from February 2021, that “any efforts to trace his whereabouts were futile”, and that consequently the claim was “time barred in its entirety by virtue of Section 90 of the Employment Act”. It stated that it would raise a preliminary objection on that ground at the hearing. It never did. 6

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Elrc Appeal No. E180 Of 2025 9. The Appellant’s sole witness was its Human Resource Manager, Lilian Wambui Kinyua, whose witness statement is dated 11th September 2024. She stated that the Respondent was employed as a driver on 1st October 2019, on a consolidated salary of Kshs. 16,500 inclusive of house allowance. She stated that on or about 5th February 2021 he stopped reporting for work, and that the Appellant tried to trace him without success because “he stopped picking any telephone calls or respond to any my messages”. She stated that the Appellant notified the County Labour Office by letter dated 15th February 2021. When his absence continued, the Appellant treated it as desertion and notified the County Labour Office by a further letter of “his dismissal on the grounds of abscondment”. She added that the payroll summarised reports showed that the Respondent last received salary in January 2021, and that his name did not appear on the payroll from February to July 2021. 10. The Appellant produced a board resolution, the letter of appointment dated 1st October 2019, the Respondent’s pay slips, payroll summarised reports for December 2020 to July 7

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Elrc Appeal No. E180 Of 2025 2021, and two letters to the County Labour Office, Mombasa, dated 15th February 2021 and 2nd March 2021. 11. In his reply to the response, the Respondent maintained that it was the manager, Mr. Moti Sidi, who ordered him not to report to work. He specifically denied that the Appellant had made any effort to trace him, and put it to strict proof. (c) The mode of trial 12. The matter was fixed for hearing on 11th March 2025. On that day, counsel for the Respondent informed the court that his client was present but that, “since the employment is admitted, we ask to proceed via documents.” Counsel for the Appellant responded: “There is the issue of how he was terminated that we wish to cross-examine on.” The learned trial magistrate then directed that “Under Rule 59 of the E&LR Court Rules 2024, the court suo moto directs that the cause be canvassed via documents already filed”, and gave directions on written submissions. submissions, and judgment followed. (d) The judgment 8 The parties filed

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Elrc Appeal No. E180 Of 2025 13. In a judgment delivered on 29th August 2025, the learned trial magistrate (Hon. G. Sogomo, PM) found that the employment relationship was admitted. On the question whether the dismissal was unlawful, he held that although the Appellant had pleaded and given evidence of desertion, “no correspondences, call logs, message screen shots et al were shown to court in proof of their assertion that they tried to contact him through his postal address, cellphone or otherwise”. Relying on Ayub Kombe Ziro v Rubber Products Ltd [2022] eKLR, he held that an employer may not assume self-termination by desertion. It must demonstrate reasonable steps to find the employee and require him to resume duty. He concluded that the termination was unlawful and unfair. 14. On the reliefs, he awarded one month’s salary in lieu of notice under section 35(1)(c) of the Employment Act. He awarded underpayment computed against a minimum wage of Kshs. 23,039.40 under the Wages Order, 2018, at (Kshs. 23,039.40 − Kshs. 16,500) × 25 = Kshs. 163,485. He granted house allowance as prayed, under section 31 of the 9

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Elrc Appeal No. E180 Of 2025 Employment Act and the Regulation of Wages (General) Order, and granted leave because the Appellant produced no leave records. He declined service pay, the Respondent having been a member of the NSSF, and awarded two months’ salary as compensation for unfair termination. The total came to Kshs. 297,960, with costs and interest. C. THE APPEAL 15. Aggrieved, the Appellant lodged a Memorandum of Appeal dated 10th September 2025, contending that the learned magistrate erred in law and in fact: (1) in holding that the Respondent’s employment was unfairly terminated, contrary to the evidence adduced by the Appellant, which demonstrated valid reasons for the termination and that due process was followed upon desertion of duty by the Respondent; (2) in failing to find that the claim was time-barred under section 89 of the Employment Act; 10

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Elrc Appeal No. E180 Of 2025 (3) in holding that the Respondent was unfairly dismissed without the Respondent having discharged his burden of proof under section 47(5) of the Employment Act; (4) in awarding Kshs. 16,500 as one month’s salary in lieu of notice; (5) in awarding compensation equivalent to two months’ salary, Kshs. 33,000; (6) in awarding unpaid leave, Kshs. 23,100, without sufficient evidence; (7) in awarding unpaid house allowance, Kshs. 61,875, without sufficient evidence and contrary to the Appellant’s evidence and submissions; (8) in awarding underpayment, Kshs. 163,485, without sufficient evidence; and (9) in misapprehending the evidence and overlooking the Appellant’s pleadings, testimony and submissions. 11

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Elrc Appeal No. E180 Of 2025 16. It prays that the judgment be set aside in its entirety, with costs. The appeal was canvassed by way of written submissions. D. THE PARTIES’ SUBMISSIONS (a) The Appellant’s submissions 17. In its written submissions dated 23rd March 2026, the Appellant, through Soni & Associates Advocates LLP, identified five issues. On limitation, it submitted that it had pleaded the time bar at paragraph 8 of its response and argued it in its submissions before the trial court, but that the trial court did not address it. It explained that the point could not be taken by way of preliminary objection because the date of cessation was contested and had to be proved by evidence, relying on Attorney General & another v Andrew Maina Githinji & another [2016] KECA 817 (KLR). It urged that the Respondent left on 5th February 2021, which was the date of cessation, so that a claim filed on 20th May 2024 came more than three years later. It relied on Bosire v Telkom Kenya Limited & another [2024] KEELRC 2410 (KLR). 12

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Elrc Appeal No. E180 Of 2025 It pointed out that the Respondent produced no pay slips or other proof of payment for February to June 2021. 18. On the merits, it relied on section 47(5) of the Employment Act and Sylas Othiambo Mandi v Coastal Bottlers Limited [2019] KECA 478 (KLR), urging that the Respondent failed to produce any tangible evidence that he had been unfairly terminated. It relied on the letter of appointment, under which absence for more than seven days exposed the Respondent to summary dismissal. It relied on its two letters to the County Labour Office and on the payroll summarised reports, which show that the Respondent last drew salary in January 2021. It submitted that, having reported the desertion to the labour office, it complied with section 18 of the Employment Act and was insulated from the claim, relying on Kalu Works Limited v Mnalo [2024] KEELRC 13419 (KLR). It also relied on Chengo Kitsao Chengo v Umoja Rubber Products Ltd [2017] KECA 648 (KLR) for the submission that once it had placed the payroll and the labour office letters on record, the Respondent ought to have adduced evidence to the contrary. 13

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Elrc Appeal No. E180 Of 2025 19. On the reliefs, the Appellant submitted that notice pay was not due because the Respondent was lawfully dismissed. It urged that the salary was consolidated and inclusive of house allowance, relying on Joseph Sani Orina v Hiprora Business Solution (EA) Limited [2017] eKLR. It argued that leave should in any event have been computed pro rata from 1st October 2019, and that the Respondent had not identified the wage order on which his underpayment claim was founded. It further urged that the claims for house allowance, leave and underpayment were continuing injuries which had to be brought within twelve months after cessation, relying on Michael O. Olewe & 37 others v Hatari Security Guards Ltd [2022] KEELRC 898 (KLR), S S Dhillon Transporters (K) Ltd v Wamiti [2024] KEELRC 13620 (KLR) and Kalu Works Limited v Mnalo (supra). Relying on Mwangi & another v Wambugu [1984] KECA 13 (KLR) and Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR), it urged this Court to interfere with the trial court’s findings. (b) The Respondent’s submissions 14

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Elrc Appeal No. E180 Of 2025 20. In his written submissions dated 25th January 2026, the Respondent, through Mung’oma Mung’oma & Company Advocates, recounted his case. He submitted that the matter having proceeded under Rule 59, the court bore a heightened responsibility to scrutinise the documents filed. He submitted that the Appellant did not issue a show-cause letter, did not invite him to a disciplinary hearing, placed nothing before the court to show the steps it took to reach him, and never wrote or called to require him to report back to work. 21. On the burden of proof, he relied on Galgalo Jarso Jillo v Agricultural Finance Corporation [2021] eKLR, Josephine M. Ndungu & others v Plan International Inc [2019] eKLR and Muthaiga Country Club v Kudheiha Workers [2017] eKLR. On desertion, he relied on William Gituma Gateere v TAA Ltd, Nairobi ELRC Cause No. 1835 of 2014, for the proposition that an employer relying on desertion must show that it made efforts to get in touch with the employee and, at the very least, gave him reasonable notice that termination was being considered. On fairness, he relied on Mary Chemweno 15

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Elrc Appeal No. E180 Of 2025 Kiptui v Kenya Pipeline Company Limited [2014] eKLR and Walter Ogal Anuro v Teachers Service Commission [2013] eKLR. 22. On limitation, he submitted that he was dismissed on 5th July 2021 and filed suit on 31st May 2024, well within the three years allowed by section 90 of the Employment Act. He added that the Appellant, having pleaded that it would raise a preliminary objection, never did so. He urged that the appeal be dismissed with costs. 23. I must observe, in fairness to the Appellant, that the Respondent’s submissions speak of several admissions made by the Appellant’s witness “in cross-examination”. There was no cross-examination. The matter was determined on the documents. Those submissions have been read in that light. E. ANALYSIS AND DETERMINATION (a) The duty of this Court 24. This being a first appeal, this Court is enjoined to reconsider the evidence, evaluate it afresh and draw its own conclusions, bearing in mind that it did not see or hear the 16

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Elrc Appeal No. E180 Of 2025 witnesses: Selle & another v Associated Motor Boat Company Limited & others [1968] EA 123. An appellate court will not lightly depart from findings of fact by a trial court, but will do so where they rest on no evidence, on a misapprehension of the evidence, or on a demonstrably wrong principle: Peters v Sunday Post Limited [1958] EA 424. 25. The deference ordinarily owed to a trial court’s findings of fact rests largely on its advantage of having observed the witnesses. That advantage was absent here. No witness testified before the learned trial magistrate. He, like this Court, had only the pleadings, the witness statements, the documents and the submissions. This Court is therefore as well placed as the trial court was to weigh the material, and will do so fully. 26. Having considered the record, the grounds of appeal and the rival submissions, I discern determination: 17 the following issues for

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Elrc Appeal No. E180 Of 2025 (i) whether the dispute was one appropriately determined under Rule 59 of the Employment and Labour Relations Court (Procedure) Rules, 2024, and with what consequence; (ii) whether the Respondent discharged the burden placed on him by section 47(5) of the Employment Act; (iii) how and when the employment relationship came to an end; (iv) whether the termination was fair; (v) whether the claim was time-barred; and (vi) whether the reliefs granted were warranted. (b) Issue (i): Was this a dispute for Rule 59? 27. Rule 59 of the Employment and Labour Relations Court (Procedure) Rules, 2024 provides: “The Court may, either by an agreement by all parties, or on its own motion, proceed to determine a suit before it on the basis of 18

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Elrc Appeal No. E180 Of 2025 pleadings, affidavits, documents filed and submissions made by the parties.” 28. The rule is a valuable instrument of case management. It gives practical effect to the overriding objective in section 3 of the Employment and Labour Relations Court Act, and to the constitutional command in Article 159(2)(b) that justice shall not be delayed. Where the material facts are not in dispute, where the contest lies in the construction of documents, or where what remains is the computation of dues from records whose authenticity is accepted, there is little that oral evidence can add. Requiring witnesses to attend only to repeat their written statements would be a waste of the time of the parties and of the court. 29. It is, however, a power to be exercised with discernment, and whether it is invoked by consent or by the court of its own motion does not change the question the court must ask itself. That question is whether the issues in the suit can be justly determined without the evidence being tested. Where the outcome depends on which of two irreconcilable 19

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Elrc Appeal No. E180 Of 2025 accounts of an event is true, the answer will ordinarily be no. Credibility is tested in the crucible of cross-examination. A witness statement cannot be asked a question, and one document cannot confront another. When two parties give opposing accounts of the same events, oral testimony tested by cross-examination is the means the law has for finding out which account is true. 30. This was such a case. The existence of the employment relationship was admitted, but that was not where the dispute lay. The parties gave diametrically opposed accounts of how and when the relationship ended. The Respondent said he was sent away by a named manager on a specific day for a specific reason. The Appellant said he had walked off the job five months earlier. On that one question turned both the fairness of the termination and the limitation of the claim. Counsel for the Appellant said as much when the matter came up for hearing: “There is the issue of how he was terminated that we wish to cross-examine on.” The learned magistrate, notwithstanding that intimation, directed of his own motion that the matter proceed on the 20

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Elrc Appeal No. E180 Of 2025 documents. With respect, I am not persuaded that this was a matter appropriate for the engagement of Rule 59. The central dispute was one of fact, which called for the evidence of each side to be tested. 31. That said, the Appellant has not made the mode of trial a ground of appeal. It did not object further when the direction was given. It proceeded on that footing, filed its submissions and invited a judgment on the documents. Before this Court, it has embraced the documentary record as the basis on which it asks for the judgment to be set aside. The appeal must therefore be determined on the record as it stands. 32. Two consequences follow. First, a direction under Rule 59 changes the manner in which evidence is received. It does not change who bears the burden of proof, or what must be proved. Each party’s witness statement and documents constitute its evidence, and each must stand or fall on their own probative worth. Secondly, a party that bears the burden of proving a contested fact bears the consequence if the documents it has chosen to rely on do not prove it. As 21

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Elrc Appeal No. E180 Of 2025 will become apparent, that consideration weighs heavily against the Appellant in this appeal. (c) Issue (ii): The burden under section 47(5) 33. Section 47(5) of the Employment Act provides: “For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer.” 34. The provision distributes the burden of proof between the parties in a claim for unfair termination. The employee bears the initial burden. It is not a burden to prove the employer’s case for it, still less to prove a negative. It is a burden to lay a sufficient evidential foundation, a prima facie case, that his employment was terminated by the employer, and that the termination was unfair. Once that foundation is laid, the burden moves to the employer. Section 43(1) of the Act 22

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Elrc Appeal No. E180 Of 2025 requires the employer to prove the reason or reasons for the termination, failing which the termination is deemed unfair within the meaning of section 45. The Court of Appeal explained how the two provisions operate together in Muthaiga Country Club v Kudheiha Workers [2017]: “The grievants having denied, through their witness, the reasons given for their dismissal, discharged their obligation under Section 47(5) of the Act by laying the basis for their claim that an unfair termination of employment had occurred. This brought into play Section 43(1) and 47(5) of the Act that places the burden upon the appellant to prove the alleged reasons for termination of the grievants’ employment, and justify the grounds for the termination of the employment.” 35. The Court of Appeal decision relied upon by the Appellant, Sylas Othiambo Mandi v Coastal Bottlers Limited (supra), is to the same effect. The employee must first establish that an unfair termination occurred, and only then 23

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Elrc Appeal No. E180 Of 2025 does the burden shift to the employer to justify it. The question is therefore whether the Respondent laid that foundation. 36. In my view, he did. His account of the end of his employment was given in his pleadings, confirmed on oath in his verifying affidavit, repeated in his witness statement, and reiterated in his reply to the response. It is detailed and internally consistent. It identifies the date (5th July 2021), the occasion (his return from Kikambala with a load of coconuts), the person (the accusation manager, (overloading), Mr. his Moti Sidi Mwamleu), explanation (3,000 the small coconuts, as ordered), and the words used to dismiss him (to go home and never report back, his services no longer being needed). It describes what he did afterwards, returning to the Appellant’s premises at Kongowea and Nyali to plead for his job. It sets out the absence of any notice, reason or hearing. Under Rule 59 that material was his evidence, and it was never tested. 24

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Elrc Appeal No. E180 Of 2025 37. There is a further consideration. The Appellant’s own letter of 2nd March 2021 to the County Labour Office states, in terms, that the Appellant had “summarily dismissed him as from the date of this letter”. On the Appellant’s own document, therefore, the employment was ended by an act of the employer. The date differs from the Respondent’s, but the letter is no record of an employee leaving of his own accord. Whichever account is preferred, the record shows a termination at the instance of the employer, carried out without any hearing. 38. I am therefore satisfied that the Respondent discharged the burden placed on him by section 47(5). The burden then moved to the Appellant to prove, under section 43, the reason on which it relied. Ground 3 of the appeal fails. (d) Issue (iii): How and when did the relationship end? 39. It is not in dispute that, at all material times, the Respondent was an employee of the Appellant. Nor is it in dispute that the relationship came to an end in 2021. The parties’ positions are diametrically opposed on how, and when. The 25

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Elrc Appeal No. E180 Of 2025 Court must decide, on a balance of probabilities, which version to believe. In doing so, it considers the inherent probability of each account, its consistency within itself and with the documents, the conduct of the parties, the incidence of the burden of proof, and the evidence that each party could have called but did not. 40. The Appellant asserted desertion. Having done so, it assumed the burden of proving it. Under section 43(1) of the Employment Act the employer must prove the reason for the termination. Under sections 107 and 109 of the Evidence Act, a party who wants the court to believe in the existence of a particular fact must prove it. Desertion, or absconding, was the reason the Appellant put forward, and the burden of proving it lay squarely on the Appellant. What absconding means, and what an employer must show 41. Absconding, or desertion, is more than absence from work. Absence without leave or other lawful cause is itself a form of misconduct recognised 26 by section 44(4)(a) of the

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Elrc Appeal No. E180 Of 2025 Employment Act. Desertion goes further. It connotes an employee’s unilateral abandonment of his employment, with the intention, express or evident from his conduct, of not returning. Because it turns on the employee’s intention, it cannot be inferred merely from the fact that he is not at work. An employee may be absent because he is ill, has been bereaved or arrested, has met with an accident, or, as the Respondent says happened here, because he has been told not to come back. 42. For that reason, courts have consistently held that an employer who asserts desertion must demonstrate that it made reasonable efforts to trace the employee, and that it brought to his attention that his continued absence would lead to disciplinary action against him. The trial court relied on Ayub Kombe Ziro v Rubber Products Ltd [2022] eKLR, where it was held: “It is not open abandonment of to duty the by employer the to plead employee as evidence of termination of the contract. The 27

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Elrc Appeal No. E180 Of 2025 employer must demonstrate that he has taken reasonable steps to find out the whereabouts of the employee and require him to resume duty to no avail. The employer must where possible demonstrate that he has addressed the matter of the employees unexplained absenteeism through the available internal disciplinary channels.” 43. The same principle was stated in William Gituma Gateere v TAA Ltd (supra), relied upon by the Respondent: “An employer relying on the ground of desertion of duty to justify a termination of employment must show that efforts have been made to get in touch with the deserting employee. At the very least, the employer must issue reasonable notice to the employee that termination of employment is being considered.” 44. The rationale for the requirement is not difficult to discern. First, it tests the inference of intention. An employee who is contacted, told to resume 28 duty and warned of the

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Elrc Appeal No. E180 Of 2025 consequences, and who still stays away, may fairly be taken to have abandoned his job. An employee who is never contacted has made no such choice that the court can see. Secondly, it guards against abuse. An allegation of desertion is easily made and hard to disprove, because it requires the employee to prove a negative. Without the requirement, an employer could turn a dismissal into a desertion simply by saying so. Thirdly, it gives effect to procedural fairness. Absence without leave is a form of misconduct, and section 41 of the Employment Act requires that before an employee is dismissed, even summarily under section 44, he be told of the reason and heard on it. The requirement ensures that the employee has that opportunity, which may disclose a perfectly good reason for the absence. Finally, it reflects the right to fair labour practices guaranteed by Article 41(1) of the Constitution. The Appellant’s evidence of efforts 45. Against that standard, I have examined the Appellant’s evidence with care. The Appellant’s witness stated that it 29

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Elrc Appeal No. E180 Of 2025 tried to trace the Respondent by telephone calls and messages. None were produced. No call log, telephone record, message or screenshot was placed before the trial court. No letter was written to the Respondent at his postal address, or at any address, asking him to resume duty. No show-cause letter was issued, and no notice was given that his continued absence would lead to disciplinary action. No evidence was offered of anyone having gone to look for him. The trial court’s finding on this point is borne out by the record. 46. What the Appellant did produce were two letters addressed not to the Respondent but to the County Labour Office. The letter of 15th February 2021 states that the Respondent “has not reported to work since 5th Feb. 2021” and that the Appellant had “tried to reach out to him unsuccessfully”. The letter of 2nd March 2021 states that he “has still not reported to work”, that the Appellant “now consider[s] him as a deserter”, and that it had “summarily dismissed him as from the date of this letter”. Both bear the receiving stamp of the County Labour Office. 30

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Elrc Appeal No. E180 Of 2025 47. These letters prove that the Appellant wrote to the County Labour Office on those dates. They do not prove the truth of what they say about the Respondent. The statement that the Appellant had tried to reach him is an assertion without particulars: it does not say when, how, by whom or at what number. A statement made by a party, to a third party, in its own interest, does not become proof because it has been reduced to writing and stamped as received. Nor is notice to the labour office a substitute for notice to the employee. The labour office is not the employee. Informing it that a decision has been made does not give the employee any opportunity to explain his absence or to be heard. There is, moreover, nothing in the record to show that either letter, or the dismissal it announced, was ever communicated to the Respondent. 48. Kalu Works Limited v Mnalo (supra) does not assist the Appellant. In that case, the fact of desertion was found on the evidence, and the report to the labour officer was treated as a record corroborating it. The decision is not authority for the proposition that an employer proves 31

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Elrc Appeal No. E180 Of 2025 desertion simply by writing to the labour office, or that such a letter relieves it of its obligations under sections 41 and 43. Chengo Kitsao Chengo v Umoja Rubber Products Ltd (supra) does not assist it either. Whatever the reach of that decision, the evidential burden moves to an employee to rebut only where the employer’s evidence has enough probative weight to establish the fact asserted. That is not this case. The Respondent, for his part, did not stay silent. He gave a detailed, specific and sworn account of the end of his employment, which the Appellant left unanswered by the one person who could answer it. The payroll 49. The Appellant placed great weight on its payroll summarised reports, which show that the Respondent drew salary for January 2021 and that his name does not appear from February to July 2021. With respect, a payroll of this kind cannot carry the weight the Appellant places on it. It is an internal, computer-generated summary, prepared by the Appellant and printed from its own system. It bears no 32

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Elrc Appeal No. E180 Of 2025 signature or acknowledgement by the Respondent, and its production was entirely within the Appellant’s control and outside his. At its highest, the absence of an employee’s name from his employer’s payroll shows that the employer stopped paying him. It does not show why. Still less does it show that he stopped working of his own accord. If such a document were enough to prove desertion, an employer could prove desertion simply by removing an employee’s name from its own records. 50. The point is sharpened by what the Appellant did not produce. Its December 2020 payroll records deductions for absence against the Respondent, among others. Plainly, then, the Appellant kept track of attendance. Yet no attendance register, muster roll, clock-in record, trip log or vehicle allocation record was produced to show when the Respondent last reported for duty, or that he did not make the trip to Kikambala on 5th July 2021. Such records, if they existed, were uniquely within the Appellant’s control. Section 74 of the Employment Act places on the employer the duty to keep records of its employees. The Appellant criticised the 33

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Elrc Appeal No. E180 Of 2025 Respondent for not producing pay slips for February to June 2021, but it was the Appellant, not the Respondent, whose records would have settled the matter. The manager who was not called 51. There is a further, and in my view telling, feature of the Appellant’s case. From the Memorandum of Claim, through his witness statement, to his reply to the response, the Respondent consistently maintained that his employment was terminated by one named person: the manager, Mr. Moti Sidi Mwamleu. The Appellant met those averments with no more than a general denial. At no point did it assert that no such person existed, that he was not its manager, or that he was not stationed where the Respondent said. He was the central person in the dispute. If the Respondent’s account was false, Mr. Mwamleu was the person best able to say so: that no trip to Kikambala took place on 5th July 2021, that there was no confrontation over coconuts, and that the Respondent had not been at work since February. Yet he 34

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Elrc Appeal No. E180 Of 2025 recorded no statement, and he was not called as a witness. No explanation was offered for his absence. 52. The Appellant’s only witness was its Human Resource Manager, who deponed that she lives and works in Nairobi. Her statement does not claim that she was present at the Mombasa go-down on 5th July 2021, or at any other time relevant to the dispute, or that she had first-hand knowledge of the Respondent’s attendance there. It is settled that where a party fails, without explanation, to call a witness who is available to it and whose evidence goes to the heart of the matter in dispute, the court may infer that his evidence, had it been called, would have been adverse to that party: Bukenya & others v Uganda [1972] EA 549. The principle applies with particular force where, as here, the witness is the very person whose conduct is in issue. I draw that inference. The Appellant’s choice not to call Mr. Mwamleu leaves the Respondent’s specific account of what Mr. Mwamleu said and did on 5th July 2021 without any answer. 35

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Elrc Appeal No. E180 Of 2025 Inconsistencies in the Appellant’s case 53. Finally, the Appellant’s case does not hold together. Its pleaded case is that the Respondent “was not terminated by the Respondent but on his own accord absconded”. Its letter of 2nd March 2021, on which it relies, says it “summarily dismissed him”. Its first ground of appeal says it had “valid reasons for the termination” and that “due process was followed”. An employer cannot at once maintain that the employee left of his own accord, and that it dismissed him, and that it followed due process in doing so, when no process of any kind is shown on the record. The dates are also inconsistent. The witness statement refers to a letter dated 15th February 2024 received on 18th February 2021, and to a letter of dismissal dated 24th March 2021 received on 5th March 2021. The submissions refer variously to letters of 5th March, 24th March and 2nd March 2021. None of these discrepancies is decisive alone, but together they do not inspire confidence in the reliability of the account. 36

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Elrc Appeal No. E180 Of 2025 54. On the premises, I am not convinced by the Appellant’s version. Its assertion that the Respondent absconded remained just that, an assertion. It was unsupported by any evidence of efforts to trace him, by the testimony of the person at the centre of the dispute, or by the attendance records within the Appellant’s control, and it was contradicted by the Appellant’s own letter of dismissal. The Respondent’s account, by contrast, is specific, consistent and unanswered by the one witness who could have answered it. I find, on a balance of probabilities, that the Respondent’s employment was terminated by the Appellant, through its manager, on 5th July 2021, when he was verbally told to go home and not to return. The learned trial magistrate reached the same conclusion, and I find no reason to disturb it. (e) Issue (iv): Was the termination fair? 55. Section 45 of the Employment Act provides that no employer shall terminate the employment of an employee unfairly. Under section 45(2), a termination is unfair if the employer 37

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Elrc Appeal No. E180 Of 2025 fails to prove that the reason for the termination is valid; that the reason is a fair reason related to the employee’s conduct, capacity or employer’s operational employment was compatibility, or on the and that the accordance with fair requirements; terminated in based procedure. The law thus recognises two distinct aspects of fairness, both of which must be present. The first is substantive fairness: there must be a valid and fair reason, which the employer must prove (sections 43 and 45(2)(a) and (b)). The second is procedural fairness: the employer must follow a fair procedure, which at a minimum requires that the employee be told, in a language he understands, of the reason for which termination is contemplated, and that he be given the opportunity, with a representative of his choice, to make representations that the employer then considers (sections 41 and 45(2)(c)). As was held in Walter Ogal Anuro v Teachers Service Commission [2013] eKLR, for a termination to pass the fairness test, it must be shown that there was not only substantive justification termination but also procedural fairness. 38 for the

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Elrc Appeal No. E180 Of 2025 56. Neither aspect was present here. On substance, the only reason advanced by the Appellant was desertion, and it has not been proved. The reason that appears to have motivated the manager on 5th July 2021, the alleged overloading, was never investigated, never put to the Respondent in any formal way, and never proved. On procedure, the Respondent was given no notice of any charge, no showcause letter, no invitation to a hearing and no opportunity to make representations. Even on the Appellant’s own case, the “summary dismissal” of 2nd March 2021 was decided without the Respondent being heard. A termination that fails either test is unfair. This one failed both, and ground 1 of the appeal fails. (f) Issue (v): Was the claim time-barred? 57. Section 89 of the Employment Act, provides that no civil action or proceedings based on or arising out of the Act or a contract of service “shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained of or in the case of a continuing injury or 39

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Elrc Appeal No. E180 Of 2025 damage within twelve months next after the cessation thereof.” It is a peremptory provision, and a claim filed outside it cannot be entertained. The Appellant is right that the trial court did not address the plea. It ought to have done so, and this Court will do so now. 58. The Appellant’s plea of limitation was built entirely on its version of the facts. It pleaded that the Respondent left in February 2021 and that the claim, filed more than three years later, was consequently “time barred in its entirety”. Having rejected that version, the answer is necessarily in the negative. The act complained of, the termination, occurred on 5th July 2021. Time therefore began to run on that date and expired three years later, in July 2024. The Memorandum of Claim is dated 20th May 2024, and the summons to enter appearance was issued on 3rd June 2024. The Respondent’s position, which I accept, is that the claim was filed on 31st May 2024. On any of those dates, the claim was filed within time. 40

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Elrc Appeal No. E180 Of 2025 59. I have also considered the Appellant’s further contention, advanced in its submissions, that the claims for underpayment, house allowance and leave are continuing injuries which, under the second limb of section 90, ought to have been brought within twelve months after cessation. I have given it anxious consideration, conscious that the Court of Appeal has addressed the concept of a continuing injury under section 90 [now 89] in G4S Security Services (K) Limited v Joseph Kamau & 468 others [2018] eKLR and The German School Society & another v Ohany & another [2023] KECA 894 (KLR). In this appeal, however, the contention faces a threshold difficulty. 60. A defence of limitation must be specifically pleaded, together with the facts on which it rests, so that the opposite party is not taken by surprise and has the opportunity to meet it: Order 2 rule 4(1) of the Civil Procedure Rules. The purpose of pleadings is to define the issues with precision, and a party is bound by its pleadings. The Appellant’s pleaded plea, as noted, was single and specific. It rested on a February 2021 separation and on the three-year limb. The 41

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Elrc Appeal No. E180 Of 2025 case that particular heads of the claim were continuing injuries caught by the twelve-month limb is a different plea. It depends on how each head is characterised and on when each alleged injury ceased, and it was not pleaded. It surfaced for the first time in written submissions. Submissions, however cogent, are not pleadings, and cannot supply a plea that the pleadings omitted. The Appellant itself, in its submissions before this Court, rightly accepts that it is bound by its pleadings and that the appellate jurisdiction extends to the issues that were presented before the trial court: Mary Kitsao Ngowa & 36 others v Krystalline Limited [2015] KECA 286 (KLR). 61. Moreover, even as framed in submissions, the continuinginjury contention was computed entirely from 5th February 2021 as the date of cessation, a premise that has been rejected. As regards leave in particular, the Respondent’s claim is for pay in lieu of leave he was never allowed to take. That entitlement crystallised on the termination of his employment on 5th July 2021, and the claim for it was 42

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Elrc Appeal No. E180 Of 2025 brought well within three years of that date. Ground 2 of the appeal accordingly fails. (g) Issue (vi): The reliefs 62. Having upheld the finding that the termination was unfair and that the claim was filed within time, I turn to the specific awards, which are the subject of grounds 4 to 8. 63. Notice pay. The letter of appointment required either party, after probation, to give thirty days’ notice of termination or pay one month’s salary in lieu, as does section 35(1)(c) of the Employment Act. The Respondent was dismissed verbally and with immediate effect. The Appellant’s only answer, that the dismissal was lawful, has been rejected. The award of Kshs. 16,500 was properly made. 64. Underpayment and house allowance. It is convenient to consider these two heads together, because they are two parts of the same question: whether the Respondent was paid what the law required. Section 48 of the Labour Institutions Act provides that the minimum rates of remuneration and conditions of employment established by 43

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Elrc Appeal No. E180 Of 2025 a wage order constitute a term of the contract of employment of every employee to whom the order applies, and that where a contract provides for less favourable terms, the terms of the order are substituted. Parties cannot contract out of the statutory minimum. A lower agreed wage is therefore no answer to a claim for underpayment, and the Appellant’s contention that the salary was “voluntarily agreed” fails. As the trial court observed, quoting Irungu Githae v Mutheka Farmers Society Ltd [2019] eKLR, the minimum rates under the Wages Order substitute the inferior terms. 65. The Regulation of Wages (General) (Amendment) Order, 2018 prescribed Kshs. 23,039.40 per month as the basic minimum wage for a driver of a medium-sized vehicle in the cities of Nairobi, Mombasa and Kisumu. That was the rate in force throughout the Respondent’s employment. The minimum wages in the Order are expressed to be basic minimum wages, exclusive of housing allowance. Paragraph 4 of the Regulation of Wages (General) Order provides that an employee on a monthly contract who is not provided with 44

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Elrc Appeal No. E180 Of 2025 free housing shall, in addition to the basic minimum wage, be paid a housing allowance equal to fifteen per cent of his basic minimum wage. The Appellant’s complaint that the Respondent did not identify the applicable order is without substance. The Respondent pleaded the shortfall, the trial court identified the Order, and a court takes judicial notice of subsidiary legislation published in the Kenya Gazette. 66. The Appellant admitted that the Respondent was employed as a driver. Its own pay slips show that, throughout, he was paid a basic salary of Kshs. 14,300 and a house allowance of Kshs. 2,200, making a gross of Kshs. 16,500. The contention that this was a consolidated salary is not borne out by the Appellant’s own documents. The letter of appointment and every pay slip set out basic pay and house allowance as separate items. “consolidated” In any event, could not relieve calling the the Appellant salary of its obligation to pay the statutory minimum. Joseph Sani Orina v Hiprora Business Solution (EA) Limited (supra) was a case in which the gross salary exceeded what the law required. It 45

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Elrc Appeal No. E180 Of 2025 does not assist an employer whose total pay fell short of the minimum. 67. The Respondent’s lawful entitlement was, therefore, a basic wage of Kshs. 23,039.40 and a house allowance of Kshs. 3,455.91 (fifteen per cent), making Kshs. 26,495.31 per month. He was paid Kshs. 16,500. The monthly shortfall was Kshs. 9,995.31, which over the twenty-five months of his service comes to Kshs. 249,882.75. It is true that the learned trial magistrate approached the two heads separately. He measured the underpayment against the gross salary rather than the basic pay, and awarded house allowance without deducting the Kshs. 2,200 paid each month. The two approaches, however, err in opposite directions. The combined award under the two heads, Kshs. 163,485 and Kshs. 61,875, is Kshs. 225,360, which is less than what the law entitled the Respondent to receive. There is no crossappeal. The Appellant has not shown that the combined award exceeds what it owed, and there is no basis on which this Court can interfere. Grounds 7 and 8 fail. 46

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Elrc Appeal No. E180 Of 2025 68. Leave. Section 28 of the Employment Act entitles an employee to not less than twenty-one working days of leave with full pay after every twelve consecutive months of service. Section 74 requires the employer to keep records, including records of leave, and section 10(7) places on the employer who fails to produce the prescribed records the burden of disproving an alleged term of employment. The Appellant asserted that leave was granted as and when due, but produced no leave application, leave roster or record of any kind to show that the Respondent took leave. Its alternative contention that leave should be computed from 1st October 2019 cannot stand. The Respondent’s pay slip for June 2019, issued in the Appellant’s former name, shows the same employee on the same salary. The Appellant itself admitted employing him under contracts issued on diverse dates, and the change of name did not interrupt his service. He served from 5th June 2019 to 5th July 2021, completing two leave-earning years. The award of Kshs. 23,100 was properly made, and ground 6 fails. 47

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Elrc Appeal No. E180 Of 2025 69. Compensation. An award of compensation under section 49(1)(c) of the Employment Act, of up to twelve months’ gross salary, is discretionary. In exercising the discretion, the court is guided by the factors in section 49(4), which include the wishes of the employee, the circumstances in which the termination took place (including the extent to which the employee caused or contributed to it), the length of service, the reasonable expectation of the length of service, the opportunities available to the employee for securing comparable employment, and the conduct of the employee. 70. An appellate court does not interfere with the exercise of a judicial discretion merely because it would itself have exercised it differently. It will interfere only where it is shown that the trial court misdirected itself in law, misapprehended the facts, took into account an irrelevant consideration or failed to take into account a relevant one, or that the decision, viewed as a whole, is plainly wrong: Mbogo & another v Shah [1968] EA 93. In the context of an award of this kind, the appellate court will also consider whether the 48

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Elrc Appeal No. E180 Of 2025 award is so inordinately high or low as to represent an entirely erroneous estimate. 71. None of these factors was asserted in this appeal. The Appellant’s challenge to the award of compensation rested entirely on the contention that the termination was fair, and that contention has failed. The Appellant did not suggest that the learned trial magistrate misapplied section 49(4), took an irrelevant matter into account or overlooked a relevant one, or that the award is excessive. The learned magistrate expressly considered the principles in Ol Pejeta Ranching Limited v David Wanjau Muhoro [2017] eKLR and the Respondent’s length of service of slightly over two years. He awarded two months’ salary, a modest award for a termination that was both substantively and procedurally unfair. I find no basis for interfering with it. Ground 5 fails. 72. It follows that ground 9, which complains in general terms of a misapprehension of the evidence and of the Appellant’s case, also fails. It has not been shown that the learned trial magistrate misapprehended 49 any material part of the

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Elrc Appeal No. E180 Of 2025 evidence. Save for the omission to address limitation, which this Court has now addressed, his conclusions are sound. F. COSTS 73. Under section 12(4) of the Employment and Labour Relations Court Act, the Court may make such orders as to costs as it considers just. The Respondent has successfully defended the judgment in his favour, and there is no reason to deny him the costs of this appeal. G. DISPOSITION 74. For the foregoing reasons, the appeal lacks merit, and it is dismissed. I make the following final orders: (a) The appeal is dismissed. (b) The Judgment and Decree of the Principal Magistrate’s Court at Mombasa (Hon. G. Sogomo, PM) delivered on 29th August 2025 in Mombasa MCELRC No. E309 of 2024 is upheld in its entirety. (c) The Appellant shall bear the Respondent’s costs of this appeal. 50

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Elrc Appeal No. E180 Of 2025 Dated, signed and delivered at Mombasa this 24th day of September 2026. OCHARO KEBIRA JUDGE 51

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