The Chairman Masaba Farmers Co-operative Union Limited & 2 others v Peter Ombaba Nyaoko

1. This appeal arises from the Judgment of Hon. Nyariki Joshua delivered on 27th August 2025 in Kisii MELRC No. E002 of 2022, Peter Ombaba Nyaoko v The Chairman Masaba Cooperative Union Ltd & 2 others. Aggrieved by that decision, the Appellant lodged a Memorandum of Appeal dated 29th January 2026 contending that: (1) The Honourable Learned Trial Magistrate erred in law and fact by entering the said judgement on 27 th day of August 2025 against the evidence tendered by the Appellant(s). The said judgement delivered by the Trial Magistrate was/is irregular and unlawful. (2) The Honourable Learned Trial Magistrate erred in law and fact by failing to make a determination that the Respondent had retired after attaining the retirement age. The Respondent was born on 1 st day of January 1963 and therefore the said Respondent had attained retirement age. He was not sacked. (3) The Honourable Learned Trial Magistrate erred in law by falsely agreeing with the Respondent that he was born on December 1963 when the said Respondent was born on 1st day of January 1963. His personal Page 2 of 15

page 2 of 15

details at National Social Security Fund (N.S.S.F) confirm the extract period of birth and therefore the Appellant had reached retirement age. He was not sacked by the Appellants. (4) The Honourable Learned Trial Magistrate erred in law and fact by failing to understudy the fact that the Respondent provided his national identity card. The said national identity card indicates that the said Respondent was born in 1963 and therefore the said Respondent had reached retirement age. (5) The Honourable Learned Trial Magistrate erred in law in failing to compute the retirement age of the Respondent from 1963 when the said Respondent was born until the year 2022 thereby arriving at a wrong and/or irregular conclusion and/or judgement. (6) The Honourable Learned Trial Magistrate erred in law and fact Respondent by making а determination was not being paid his that the salary and allowance. The Trial Magistrate did not understudy the fact that the Respondent Page 3 of 15 had not complained

page 3 of 15

whatsoever in the manner adopted by the Appellant(s) on payment of the said salaries and allowances. (7) The Honourable Learned Trial Magistrate erred in law and fact by failing to understudy the fact that the Respondent took and spent his cumulative leave days and therefore the question of unfair compulsory leave was purportedly imposed on the Respondent was an analysis by the Trial Magistrate that was not supported by any evidence. (8) The Honourable Learned Trial Magistrate erred in law and fact by making an order that the Respondent be paid Kshs 1,433,525/- was unlawful and/or illegal. There was no basis for making such order. (9) The Honourable Learned Trial Magistrate erred in law and fact by making a declaration that the Respondent be paid salary in lieu of leave for the entire period of employment. The said declaration is by the said Trial Magistrate is/was unlawful. The Respondent spent his leave days and therefore the order for payment in respect of the said leave day was bad in law. Page 4 of 15

page 4 of 15

(10)The Honourable Learned Trial Magistrate erred in law and fact by making a declaration that the Appellant to remit payments to K.R.A, payee tax and N.S.S.F. Such declaration was irregular and without any legal foundation whatsoever. (11)The Honourable Learned Trial Magistrate erred in law and fact by making an order that the Appellant do pay the Respondent Kshs. 100,000/- as damages. Such order was without any legal foundation whatsoever. No evidence was ever produced and tendered by the Respondent to support such claim. (12)The decision by the Trial Magistrate was not founded in any law but it was influenced by other factors that are not lawful. (13)The decision by the Trial Magistrate dated 27 th day of August 2025 was deficient. irregular and superfluous. (14)The Honourable Learned Trial Magistrate misconceived and/or misapprehended the evidence on record and the law thus failed to arrive at a fair and just conclusion. Page 5 of 15

page 5 of 15

(15)The Learned Trial Magistrate failed to properly evaluate and/or analyze the evidence and submissions tendered by the Appellant. Consequently, the Trial Magistrate arrived at a biased and passionate judgement. (16)The judgement of the Trial Magistrate is deficient and hollow. It is devoid of legal reasons. Consequently, the judgement sought to be impeached is contrary to the legal provisions. 2. On the strength of these grounds, they urge the Court to set aside the Trial Court’s judgment and to substitute it with an order dismissing the suit before the Trial Court with costs. 3. The appeal was canvassed by way of written submissions. Appellants’ Submissions 4. The Appellants submit, that the Trial Court failed to properly consider the evidence on record and erred in finding that the Respondent had been subjected to discrimination, unlawful Page 6 of 15

page 6 of 15

and unjust conduct amounting to unfair labour practices. They contend that the Respondent was issued with a terminal leave letter dated 22nd October 2022, which merely required him retirement to and proceed was a on terminal leave pending lawful measure applicable to employees approaching retirement. They further submit that the Respondent was subsequently issued with a retirement letter dated 6th April 2023, by which time he had attained the applicable retirement age. The Appellants therefore maintain that there was no evidence of harassment, discrimination or unfair labour practices. 5. The Appellants further contend that the Respondent admitted during cross-examination that he had been paid his salary and that the terminal leave was justified. They therefore contend that the trial court erred in awarding the Respondent Kshs.1,433,525/- in salary arrears, particularly when the Respondent continued to receive his salary and the Appellants had financial challenges. They argue that the amount, if any, was consequently being reduced through Page 7 of 15

page 7 of 15

continued salary payments and ought not to have been ordered as a lump-sum payment. 6. On leave pay, the Appellants submit that there was no evidence that the Respondent had outstanding or unutilised leave days. They contend that the Respondent confirmed that his accumulated 102 leave days had been utilised and cleared. Consequently, the order for payment of salary in lieu of leave for the entire period of employment was unsupported by the evidence and irregular. 7. The Appellants also submit that the order requiring them to pay PAYE and NSSF deductions was unwarranted, as neither the Kenya Revenue Authority nor the National Social Security Fund had claimed any outstanding dues from them. They contend that the statutory bodies have mechanisms for recovery of any unpaid deductions and that the Respondent had, in any event, withdrawn his NSSF contributions. 8. With regard to the award of Kshs. 100,000/- as damages, the Appellants submit that the Respondent neither pleaded, particularised nor proved the alleged damages. They rely on Page 8 of 15

page 8 of 15

Southern Engineering Company Ltd v Musingi Mutia [1985] KECA 49 (KLR), for the proposition that assessment of damages is a matter of judicial discretion which must be exercised judiciously and having regard to the prevailing circumstances. They contend that the Trial Court failed to explain the basis upon which it arrived at the award of Kshs. 100,000/-. 9. Finally, the Appellants submit that the Respondent failed to discharge the burden of proof in establishing his claim. They rely on Khadija Famau Yusuf v Mohamed Hafidh Mohamed & another, [2019] KEELC 1801, on the principle that the burden of proving a particular fact rests upon the person who seeks to have the court believe in its existence. They further rely on Ainushamsi Construction and Transporters Government of Company Vihiga, Limited [2024] KEHC v County 3288, with reference to section 110 of the Evidence Act, on the burden of proving facts necessary to enable a person to give evidence of another fact. On that basis, they submit that the Respondent failed to prove his case to the required standard. Page 9 of 15

page 9 of 15

The Appellants’ therefore urge the Court to allow the appeal with costs. Respondent’s Submissions 10. The Respondent submits that the Trial Court properly found that his retirement was premature, unfair and unlawful, contrary to sections 43 and 45 of the Employment Act and Article 41 of the Constitution. He contends that the Appellants failed to prove the reason for the termination as required under section 43 of the Employment Act. The Respondent further submits that although his identification documents only indicated 1963 as the year of birth, he testified that he was born in December 1963 and would therefore attain the retirement age of 60 years in December 2023. He argues that his retirement in October 2022 was consequently premature. He also contends that the Appellants subjected him to 132 days of compulsory leave before issuing him with a terminal leave letter, resulting in his retirement approximately 14 months before the date he would have attained the retirement age. Reliance is placed on Steel Makers Limited v Joshua Nzuki [2016] eKLR, for the proposition that an employer cannot avoid the Page 10 of 15

page 10 of 15

statutory requirements of fairness by merely describing termination as retirement. 11. The Respondent submits that the Appellants failed to produce employment and payment records within their custody to establish their assertions regarding salary arrears and the treatment of employees. Relying on Kenya Power & Lighting Company Limited v Pamela Awino Ogunyo [2015] eKLR, and sections 107–109 and 112 of the Evidence Act, he submits that the evidential burden shifted to the Appellants in respect of facts particularly within their knowledge. He further relies on Central Microfilm Operators (1990) Ltd v Teachers Service Commission [2015] eKLR, on the drawing of an adverse inference where a party fails to produce material evidence or call a witness reasonably expected to give relevant evidence. 12. The Respondent highlights the fact that the Appellants’ own witness admitted that salary arrears were owed to him, that there was an agreement and payment scheme governing the arrears, and that the relevant records had not Page 11 of 15

page 11 of 15

been produced. He therefore contends that the trial court was entitled to find that the claimed arrears remained outstanding, save for payments of Kshs. 572,026/- made during the proceedings, and to award the amount due. 13. On the quantum, the Respondent submits that the award of Kshs. 1,433,525/- was lawful and supported by sections 18 and 19 of the Employment Act, which require wages to be paid when due and regulate lawful deductions. He further submits that the award of Kshs. 100,000/- as damages was within the Trial Court’s discretion and has not been shown to be unreasonable. Relying on Mbogo & another v Shah [1968] EA 93, the Respondent submits that an appellate court should not interfere with the exercise of judicial discretion unless the lower court misdirected itself, considered irrelevant matters, failed to consider relevant matters, or arrived at a plainly wrong conclusion. He contends that the Trial Court properly considered the chronology of his employment, promotion, the difficulties encountered in 2022, compulsory leave, terminal leave and premature retirement before reaching its decision. The Page 12 of 15

page 12 of 15

Respondent therefore submits that the appeal lacks merit and urges the Court to dismiss it with costs. Disposition 14. The duty of a first appellate court is to reconsider and re- evaluate the evidence on record and draw its own conclusions, while bearing in mind that it did not have the benefit of seeing and hearing the witnesses testify. See the holding in Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123 and Abdul Hammed Saif v Ali Mohamed Sholan (1955), 22 EACA 270. 15. In this case the employee was successful in the claim against the employer. The Respondent was found to have been born in 1963 and attained retirement age. The Appellants assert the Respondent was born on 1 st January 1963 with no proof of birth availed. The Respondent asserts he was born in 1963. His own national identity card indicates 1963 and therefore it is erroneous for the Appellants to assume the Respondent was born on 1st January 1963 and not December 1963. In the claim before the Learned Page 13 of 15

page 13 of 15

Magistrate, the employer who was the keeper of records admits paying the employee salaries haphazardly. The consequence is the success of the Respondent against the Appellants. When an employer chooses to use a means of payment of salaries that is ad hoc a Trial Court cannot be said to have fallen into error where it is determined there was non-payment of salaries as required or that there is basis for a finding there was an error in the same. It matters not that the Respondent had not previously complained of this. If the Learned Magistrate found the facts pointing to non-compliance in as far as salary payment went, there was no reason for the Learned Magistrate not to rule against the Appellants on the point. 16. Regarding the sums awarded, the Court does not discern any error as the Appellants were the keepers of the records of employment and their failure to prove the Respondent went on leave as alleged in their defence was fatal to their assertion that the Respondent spent all his leave days. The damages awarded in respect of the claim were valid as the sum of Kshs. 100,000/- was within reason and as it was a discretionary remedy for the faults of the Appellants, and Page 14 of 15

page 14 of 15

there being no demonstration that the Learned Magistrate took into account factors that ought not have been taken into account or that he failed to take into accounts factors that he was required to, I find no basis to interfere with the finding. In the final analysis I find there is no merit in this appeal and it is accordingly dismissed with costs to the Respondent. It is so ordered. Dated and delivered at Kisii this 29th day of September 2026 Nzioki wa Makau, MCIArb. JUDGE Page 15 of 15

page 15 of 15