Jane Mutheu Mutisya v AIC Mwatate Secondary School

On 3 July 2023, the appellant wrote to the respondent seeking clarification of her employment status and permission to resume duty. In its response dated 18 July 2023, the Respondent alleged that her employment was irre gular and that she had absconded duty when the school reopened in 2021. The Respondent also accused her of unlawfully harvesting maize and ban anas from the school farm and of other acts of theft. The Appellant dispute d these allegations, maintaining that they were unfounded, that no disciplinary proceedings had been instituted against her, and that she had never been allowed to respond to the allegations of theft. Further, the Res pondent had not issued or served any formal communication terminating her employment. The Appellant maintained that she had not been paid he r salary from November 2020 and that the Respondent's failure to recall h er, pay her salary or formally terminate her employment amounted to unf air labour practices in violation of Article 41 of the Constitution and thus cl aimed the following: i. One month's notice pay Kshs. 11,000. ii. Unpaid salary since November 2020 (Kshs. 11,000 X 35 months)Kshs. 385,000. iii. Compensation for unlawful termination (Kshs. 11,000 X 12)- Kshs. 132,000. iv. Compensation for violation of the Claimant’s right to fair labour practices. Interest on (i), (ii) and (iii) above v. Costs of this claim. In reply, the Respondent admitted that the Appellant had been employed as a cook but disputed her salary, stating that she earned Kshs. 6,000 per month. It further contended that her employment was irregular, as there h ad been no advertisement or interviews before her appointment, raising d oubts about the circumstances of her appointment. The Appellant failed to report to work when the school reopened in September 2020 and had con sequently absconded duty without any justifiable reason. The Appellant w as a parent at the school and regularly attended school meetings but faile d to attend to her employment duties. The response was that the Appellan ELRC MACHAKOS JUDGEMENT APPEAL NO. E020 OF 2026 2

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t had been summoned to a meeting to respond to allegations of theft but f ailed to honour the summons. There was no termination of employment was alleged. The learned magistrate heard the parties and dismissed the claim. Aggrieved, the appellant filed the appeal on 8 grounds: i. The learned trial magistrate erred in law and fact in writing a judgment which is at variance with the court’s analysis of the case findings, is against the weight of evidence and is contrary to precedents; ii. The learned trial Magistrate failed to adequately evaluate the evidence provided by the Appellant, thereby arriving at a decision unsustainable in law; iii. The learned trial Magistrate erred in law and fact by delivering a Judgment where the final orders were not in tandem with the crucial findings of fact. The Magistrate explicitly found that the Respondent failed to prove abscondment and failed to comply with the mandatory termination procedures under section 41 of the Employment Act, yet proceeded to dismiss the entire claim, thereby rendering a final Judgment that was contradictory and logically inconsistent with the findings of the Honourable court itself; iv. The learned trial Magistrate erred in law and fact by failing to appreciate that having found that the Respondent failed to prove abscondment and further failed to follow the mandatory termination procedures under the Employment Act, the Appellant was ipso facto entitled to remedies for unprocedural and/or unlawful termination; v. The learned trial Magistrate erred in law and fact by failing to appreciate that the Respondent’s conduct, including the failure to recall the Appellant, the long delay in responding to the requests to be restored to her position and failure to assign duties after the ELRC MACHAKOS JUDGEMENT APPEAL NO. E020 OF 2026 3

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COVID-19 school closure, amounted to constructive dismissal thereby entitling the Appellant to compensation; vi. The learned trial Magistrate further erred in law and fact by dismissing the Appellant’s entire prayer for compensation on the technicality that the reliefs sought were mutually exclusive, instead of considering the prayers in the alternative and granting the remedy most applicable to the facts found; vii. The learned trial Magistrate erred in law and fact by misapplying the ‘no service, no pay’ principle to defeat the Appellant’s claim for unpaid salary, when the lack of service and/or failure to work by the Appellant was solely occasioned by the Respondent’s failure to assign the Appellant any work, after the school principal’s instruction to the Appellant to await further communication and/or be recalled; and viii. The learned Magistrate erred in law and fact by arriving at a contradictory determination and against the weight of the evidence presented, leading to a miscarriage of justice by refusing to award any relief whatsoever to the Appellant. On appeal, the Appellant submitted that the trial Magistrate erred in dismi ssing her claim despite expressly finding that the Respondent had failed to prove that she had absconded duty and had not complied with the manda tory termination procedures under Section 41 of the Employment Act (the Act). The trial Magistrate's findings were internally contradictory and could not support the dismissal of her claim. The Appellant submitted that the Respondent had failed to discharge its st atutory obligations under Sections 41, 43 and 45 of the Act. She maintaine d that the trial Court had expressly found that the Respondent had neither proved abscondment nor complied with the statutory requirements for ter mination. She therefore argued that the termination was procedurally unfa ir and that she was entitled to remedies under Section 49 of the Act. The R espondent's failure to recall her, assign her duties or communicate her em ployment status, despite her repeated attempts to resume work, amounte ELRC MACHAKOS JUDGEMENT APPEAL NO. E020 OF 2026 4

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d to constructive dismissal. She remained ready and willing to work, but th e Respondent's conduct prevented her from doing so. The Respondent cou ld not rely on the principle of no work, no pay while simultaneously keepin g her employment contract alive and withholding work from her. In Perfect Scan Limited v Chuwi [2025] KEELRC 3677 (KLR), the court held that the principle of no work, no pay applies where an employe e wilfully absents themselves from work and not where the employer prev ents the employee from rendering service. She also relied on Komu v Sa na Industries Limited [2025] KEELRC 75 (KLR), and Musyoka v Jana Peston v Mnyika (Appeal E186 of 2024) [2025] KEELRC in support of the submission that an employer alleging desertion must formally bring th e employment relationship to an end in accordance with the law. The Appellant submitted that the Court should allow the Appeal, set aside the judgment delivered on 29 October 2025, and award her statutory com pensation equivalent to 12 months' gross salary with costs. The Respondent did not file its written submissions on the Appeal. Determination As this is a first appeal, this Court must re-evaluate and re-assess the evid ence on record and reach its own conclusions, bearing in mind that the tri al court had the advantage of seeing and hearing the witnesses. Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 s et out the principles governing the duty of a first appellate court. The Respondent did not file submissions in opposition to the appeal. The issues for determination are whether the trial court properly evaluate d the evidence on abscondment, whether the Appellant's employment wa s terminated and whether she was entitled to the reliefs sought. It is not disputed that the parties were in an employment relationship. The appellant was employed as a cook. However, the appellant asserts that ELRC MACHAKOS JUDGEMENT APPEAL NO. E020 OF 2026 5

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she was paid Ksh. 11,000 per month; the respondent, as the employer, admitted to paying Ksh. 6,000 only. The respondent filed no employment records. The court takes it that the appellant was paid the sum confirmed by the employer, Ksh. 6,000 per month for a cook. This was at AIC Mwatati Secondary School. The letter of appointment indicates Ksh. 4,000 per month in 2015. The respondent is based in Tala, Machakos County. Under the General Wages Orders, a cook employed in November 2020 had a minimum wage of Ksh. 13,005.70 and a house allowance of 15% thereof at Ksh. 1,950.15, and a gross wage of Ksh. 14,955.50 per month. On the paid wage of Ksh. 6,000 per month, the appellant was underpaid by Ksh. 8,955.80 per month. This is legally due for the period of employment. However, the appellant did not claim this underpayment when due, and under section 89 of the Act, it is a continuing injury; the underpayment is due for only 12 months. Whatever led to the termination of employment, under sections 17, 18 and 19 of the Act, the lawful wage due to the employment is payable at the end of employment. For 12 months, KSh 107,469.66 is due as an underpayment of wages. The trial court found that the Appellant's employment was regular, notwit hstanding the Respondent's contention that her recruitment was irregular. The court observed that the Respondent had employed the Appellant and retained her services for several years. I find no reason to interfere with th at finding. The Respondent could not rely on alleged irregularities in its ow n recruitment process to deny the existence of an employment relationshi p it had maintained for several years. On the question of abscondment, the trial court considered the parties' evi dence and found that the Respondent had not proved that the Appellant h ELRC MACHAKOS JUDGEMENT APPEAL NO. E020 OF 2026 6

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ad absconded duty. The evidence was that the Appellant ceased working d uring the COVID-19 school closure. While the Respondent maintained that she had been called back to work and had failed to report, the Appellant t estified that she had attempted to resume duty but was instructed to awai t further communication. Her husband corroborated her account of having made inquiries at the school. The Respondent's witnesses testified that the Appellant had failed to resp ond to calls and instructions to resume duty. However, the principal admitt ed that no written notice requiring her to return to work or explain her abs ence had been issued. The Respondent's secretary also confirmed that the summons to the Board meeting on 17 July 2023 was communicated orally, as the written summons had not been signed. In the circumstances, the trial court found that abscondment had not been established. It is trite that the employee cannot terminate her employment. The employer has the legal duty to secure itself and issue a written notice terminating the employment relationship as required under section 18(4) and (5) of the Act. Even where the employer summons the employee, and the employee fails to comply, the employer must issue notice and copy the Labour Officer to confirm the steps taken to address abscondment of duty. Therefore, the Respondent's evidence does not establish that the Appellan t had deliberately abandoned her employment. The absence of written co mmunication, particularly in circumstances where the Appellant maintaine d that she had attempted to resume duty, was a relevant consideration. The learned magistrate thus correctly held that abscondment was not pro ved. On these findings, sections 35, 41, and 43 of the Act apply. An employment relationship terminated without notice, due process, or fair reasons is unfair under section 45 of the Act. It is not justified, and the employee is entitled to notice pay, compensation, and terminal dues. ELRC MACHAKOS JUDGEMENT APPEAL NO. E020 OF 2026 7

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Sections 41, 43 and 45 of the Act regulate the procedure and substantive r equirements for termination of employment. Their application presuppose s that termination has occurred or that the employer is contemplating ter mination. In this case, the Respondent maintained that it had not terminated the Ap pellant's employment, and the trial court found no formal termination notice. As outlined above, under section 18(5)(b) of the Act, at the end of employment, the employer, such as the Respondent, must issue written notice to the employee and, if not viable, send the notice to the labour officer. This was not done. The Respondent terminated the employment relationship without due process and, therefore, unlawfully and unfairly. The Appellant further contended that the Respondent's failure to recall her assign her duties or communicate her employment status amounted to c onstructive dismissal. Constructive dismissal must, however, be establishe d by evidence of conduct amounting to a fundamental breach of the empl oyment contract, which causes the employee to regard the contract as ter minated. In this case, the Appellant maintained that her employment subs isted and sought to resume her duties. No evidence showed that she had r esigned or otherwise treated the employment relationship as terminated. The trial court's finding that constructive dismissal had not been establish ed is therefore correct. On the claim for unpaid salary, the Appellant sought Kshs. 385,000 for 35 months from November 2020, calculated at Kshs. 11,000 per month. The Respondent disputed the amount and maintained that the Appellant earne d Kshs. 6,000 per month. The trial court considered the employment recor ds and the parties' testimony. It noted that the Appellant had produced a p ayment slip for Kshs. 11,000 but had not sufficiently demonstrated that thi s was her regular monthly salary. The Respondent, on the other hand, pro duced a letter dated 19 January 2018, increasing her salary to Kshs. 6,000. ELRC MACHAKOS JUDGEMENT APPEAL NO. E020 OF 2026 8

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The underpayment of wages is addressed above. The appellant did not offer her labour to the respondent from November 2020 onwards. Nothing shows she mitigated her circumstances by seeking new employment after being frustrated by the Respondent. Notice pay at the lawful due wage of Ksh. 14,955.50 together with compensation shall suffice. The petitioner worked for the respondent from March 2015 to November 2020, a period of 5 full years. Compensation of 5 months is appropriate, taking into account the unlawful and unfair circumstances leading to the loss of employment that the respondent should have addressed better. Compensation Ksh. 74,777.50. No notice pay Ksh. 14,777.50. On costs, the trial court exercised its discretion and directed that each par ty bear its own costs. However, the court must apply that discretion judicially and give reasons. The appellant’s employment was terminated unfairly. She made a demand from the respondent without resolving or paying the terminal dues. This necessitated these proceedings. The claim for costs is hence justified. Accordingly, I find the appeal has merit and the judgment in Kangundo ELRC Case No. E003 of 2023 set aside. Judgment is hereby entered for the appellant against the respondent in the following terms: a) A declaration that employment was terminated unlawfully and unfairly. b) Compensation Ksh. 74,777.50. c) Notice pay Ksh. 14,955.50. d) Underpayment of wages Ksh. 107,469.66. e) Costs of the appeal and the trial court proceedings. Delivered in open court this 1st day of October 2026 ELRC MACHAKOS JUDGEMENT APPEAL NO. E020 OF 2026 9

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M. MBARŨ JUDGE In the presence of: Court Assistant: Kemboi …………………………………………………………… ……………….……………..……… ELRC MACHAKOS JUDGEMENT APPEAL NO. E020 OF 2026 10 and …………………

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