Rupa Mills Limited v Hillary Kaverenge Chogo

2. After hearing the parties, the trial court delivered its judgment on 23rd November 2023, in favour of the Claimant awarding him some of the prayers he sought in his Statement of Claim. 3. The Appellant being dissatisfied with the said Judgement instituted the instant appeal vide the Memorandum of Appeal dated 18th January 2024 on grounds that:a. The learned Magistrate erred in fact and in law by declaring that the Claimant's termination was unfair despite the fact that the Respondent produced all evidence showing that the termination was fair and in accordance with all the applicable laws. b. The learned Magistrate erred in law and in facts by awarding the claimant Kshs. 20,000/- salary in lieu of one month notice despite the Respondent producing evidence to show the claimant was paid the said salary in full and the claimant himself admitted to have received the notice pay. c. The learned Magistrate erred in law and in fact by awarding the Claimant Compensation for unfair termination to the tune of Kshs 60,000/= despite there being no legal basis for the same. 2 ELD ELRCA NO. E002 OF 2024 JUDGMENT

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d. The learned Magistrate erred in law and in fact in failing to appreciate the evidence by the appellant by awarding the Claimant a sum Kshs. 80,000/= having not discharge his burden proof as required in law thereby leading to miscarriage of justice. e. The learned judge erred in law and in fact by failing to consider the Respondent’s evidence in deciding the case. f. The learned judge erred in fact and in law by awarding the Claimant costs of the suit reason being the Claimant's suit ought to have been dismissed. 4. Pursuant to the directions of the court, the appeal was disposed of by way of written submission. The Appellant’s submission are dated 19th June 2026 while the Respondent’s submissions are dated 9th June 2026. Analysis 5. This being a first appeal, this court is guided by the principles espoused in several decisions among them, Selle & Another v Associated Motor Boat Co. Ltd &Another (1968) EA 123, to re-evaluate and re-examine the evidence adduced in 3 ELD ELRCA NO. E002 OF 2024 JUDGMENT

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the trial court in order to reach its own finding, taking into account the fact that this court had no opportunity of hearing or seeing the parties as they testified. 6. Vide the Statement of Claim dated 14th September 2022, the Claimant (now the Respondent) sued the Appellant seeking compensation for the alleged unfair termination of his employment and payment of his terminal dues. 7. The Claimant averred that he was employed by the Appellant from the year 2013 to the year 2021 serving in various capacities. He stated that the said contract of service was never reduced into writing. 8. It was the Claimant’s case that the Appellant dismissed him from employment verbally, without any notice and also without paying him his dues. 9. The Claimant contended that at the time he was dismissed from employment he was earning a monthly salary of Kshs. 20,000. 10. According to the Claimant, the termination of his service without reason by the Respondent was illegal, unfair and unlawful as it offended the mandatory provisions of section 45(2) of the Employment Act. 4 ELD ELRCA NO. E002 OF 2024 JUDGMENT

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11. The Claimant particularized the unlawfulness of the termination of his employment as follows: i. The Respondent failed to give the Claimant termination notice as provided under section 35(1)(c) and 36 of the Employment Act ii. The Respondent failed to pay the Claimant one month pay in lieu of notice as stipulated under section 36 of the Employment Act. iii. The Respondent terminated the Claimant’s employment without proving the reason for the termination was valid as provided for under section 43 and 45 of the Employment Act. iv. The Respondent failed to pay the Claimants her(sic) 12 months wages for loss of employment as provided for under section 49(1) of the Employment Act. 12. The Claimant thus tabulated his terminal benefits to be:i. One month salary in lieu of notice……………..Kshs 20,000 ii. 12 months compensation for unfair termination……………………………..Kshs 240,000 iii. Gratuity …………………………………………….Kshs 372,056 5 ELD ELRCA NO. E002 OF 2024 JUDGMENT

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13. He prayed for the following reliefs: a. A declaration that the termination of employment was malicious, unlawful, unfair, unprocedural and a fundamental violation of the rights of the Claimant b. Maximum compensation as per section 49(1)(c) of the Employment Act c. An order that the Respondent pay the Claimant the amount as tabulated above d. A certificate of service as per section 51 of the Employment Act e. Costs and interest of this suit f. Any other relief(s) this Honourable Court may deem just and fit to grant. 14. The Appellant, who was the Respondent before the trial court, filed a Memorandum of Response dated 22 nd November 2022 denying the Claimant’s allegations. The Appellant’s case was that the Claimant was not dismissed but deserted duty after leaving for the Christmas holidays in 2018. It averred that he 6 ELD ELRCA NO. E002 OF 2024 JUDGMENT

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failed to report back on 3rd January 2019, when the other employees resumed work. 15. The Appellant asserted that the Claimant had not informed anyone of his intention to leave employment and as such, no certificate of service was prepared. It maintained that, because the Claimant had deserted duty, there had been no termination requiring it to notify him of a reason. The Appellant therefore urged the trial court to dismiss the claim with costs. 16. At the hearing, the Claimant testified on 14 th June 2023 while the Appellant called Ignatius Barasa, who testified on 5 th October 2023. 17. The Claimant testified as CW1. He adopted his witness statement as his evidence in chief and relied on the documents he had filed. He told the trial court that the Appellant employed him as a fireman and that he earned Kshs. 20,000 per month at the time of his alleged dismissal. 18. The Claimant testified that, when he returned from the Christmas holidays in 2021, he was told that the COVID-19 pandemic had adversely affected the business. He stated that he was then dismissed without notice. 7 ELD ELRCA NO. E002 OF 2024 JUDGMENT

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19. On cross-examination, CW1 stated that he was dismissed in August 2021. He maintained that he had worked for the Appellant until that year. He also stated that he had been at work in December 2018. When referred to the muster roll for 27th December 2018, he acknowledged that it marked him absent. He further testified that the Appellant had made NSSF contributions on his behalf. 20. Ignatius Barasa testified as RW1 and adopted his witness statement dated 10th September 2023 as his evidence in chief. He confirmed that the Claimant had been employed by the Appellant but stated that the Claimant last worked on 14 th December 2018. According to RW1, the Claimant was expected to return on 3rd January 2019 but failed to do so. RW1 maintained that the Claimant deserted duty and was not dismissed. 21. On cross-examination, RW1 stated that he wrote to the Claimant after the Claimant failed to resume work on 3 rd January 2019. subsequently He also dismissed, stated that although the the Claimant Appellant was never contacted him. On re-examination, RW1 reiterated that the Claimant had not resumed work after 14 th December 2018. 8 ELD ELRCA NO. E002 OF 2024 JUDGMENT

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22. After the close of the Appellant’s case, the trial court directed the parties to file written submissions. It subsequently entered judgment in favour of the Claimant, awarding him Kshs. 20,000 as one month’s salary in lieu of notice and Kshs. 60,000 as compensation for unfair termination, equivalent to three months’ salary. The trial court also awarded him costs and interest and directed the Appellant to issue him with a certificate of service. 23. The Appellant now challenges that judgment on appeal. The Appellant’s submissions 24. In its submissions, the Appellant crystallized the grounds of appeal into the following two issues: i. Whether the trial court properly evaluated He evidence Whether the awards made were legally justified. 25. On the first issue, the Appellant submitted that the issue before the trial court was whether the Claimant’s employment had been terminated or he had absconded duty. That although the learned magistrate correctly identified that 9 ELD ELRCA NO. E002 OF 2024 JUDGMENT

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question, it erred in its evaluation of the evidence and reached a conclusion that was unsupported by the record. 26. The Appellant relied on section 47(5) of the Employment Act, 2007, which places on an employee the burden of proving that an unfair termination or wrongful dismissal occurred, and on an employer the burden of justifying the grounds for the termination or dismissal. According to the Appellant, the burdens arise sequentially: the Claimant first had to establish that his employment was terminated before the Appellant could be called upon to justify the termination. It cited Protus Wanjala Mutike v Anglo African Properties & Jambo Mutara Lodge Laikipia [2021] eKLR in support of that position. 27. The Appellant submitted that the Claimant’s account was contradictory and lacked evidential support. It submitted that while the Claimant pleaded that he worked for the Appellant from 2013 to 2021, the Appellant’s muster roll and the testimony of his immediate supervisor, Mr Ignatius Barasa, indicated that he last worked on 14 th December 2018. The Appellant’s case was that the Claimant left for the Christmas 10 ELD ELRCA NO. E002 OF 2024 JUDGMENT

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holiday and did not report back when work resumed on 3 rd January 2019. 28. The Appellant further submitted that the Claimant produced only a payslip for 2017 and no documentary evidence showing that he worked between 2019 and 2021. It argued that the trial court’s observation to that effect was inconsistent with its subsequent finding that the Claimant had proved termination of his employment. 29. According to the Appellant, the Claimant testified that he returned in January 2021 after a break following the COVID-19 pandemic and was informed that his services were no longer required. The Appellant submitted that this account was unsupported by a payslip, bank statement or other record covering the period from 2019 to 2021. That the trial court erred in accepting the evidence. 30. The Appellant submitted that it produced a muster roll recording the Claimant’s absence from 3 rd January 2019 and called Mr. Barasa, whose account was consistent on the material facts. It challenged the trial court’s assumption that Mr. Barasa’s letter dated 6th January 2019 might have been prepared for the case without evidential foundation. 11 ELD ELRCA NO. E002 OF 2024 JUDGMENT

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31. The Appellant relied on the case of Monica Wanza Mbavu v Roofspec & Allied Works Co. Ltd [2021] eKLR for the proposition that dismissal must be proved. It argued that the Claimant produced no termination letter, complaint to the Labour Office or witness to corroborate the alleged verbal dismissal. It therefore submitted that the learned magistrate erred in fact and in law in finding that a dismissal occurred when the Claimant had not discharged the primary burden under section 47(5) of the Employment Act. The Appellant thus submitted that the trial court’s conclusion that the Claimant was dismissed and never absconded duty was unsupported by the evidence and constituted a misapprehension of the law on the burden of proof. 32. On the issue whether the Trial Court properly applied the law on desertion, the Appellant submitted that the trial court rejected its case principally because it had not contacted the Claimant after his alleged absence, had not issued him with a notice to show cause or reported the matter to the Labour Office, and because the court attached little weight to the letter of 6th January 2019. The Appellant argued that the court mixed proof of desertion with the procedural steps an 12 ELD ELRCA NO. E002 OF 2024 JUDGMENT

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employer may be required to take when deciding whether to terminate an employee for absence from work. It maintained that it had made no decision to terminate the Claimant’s employment but rather, the Claimant had voluntarily stopped reporting for duty. 33. The Appellant sought to distinguish Boniface Francis Mwangi v B.O.M. Iyego Secondary School [2019] eKLR, Simon Mbithi Mbane v Inter Security Services Ltd [2018] eKLR, Mariita v Leading Locks & Access System [2022] KEELRC 1194 and Joseph Nzioka v Smart Coatings Limited [2017] eKLR, which were cited in the judgment and submitted that those decisions concerned an employer’s failure to make efforts to contact an absent employee, whereas the Appellant’s case was that the Claimant had abandoned his employment and had never been terminated. 34. The Appellant further submitted that the letter of 6 th January, 2019 authored by Mr. Barasa was an internal memorandum to the management reporting the Claimant’s absence as a contemporaneous internal report to management. It maintained that the letter supported the genuineness of its 13 ELD ELRCA NO. E002 OF 2024 JUDGMENT

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account and that the trial court had no evidential basis for suggesting it had been prepared for the litigation. 35. It also submitted that the muster roll showing the Claimant absent from 3rd January, 2019 was objective documentary evidence produced from the Respondent's own records and that the trial court's treatment of this evidence that " the muster roll may be taken to mean the claimant was absent since he was dismissed" was an impermissible reversal of the burden of proof. 36. The Appellant accordingly urged this Court, upon its own evaluation of the evidence, to find that the Claimant absconded duty in January 2019 and that the Appellant did not terminate his employment. 37. On the award of notice pay, the Appellant submitted that the trial court erred in awarding the Claimant Kshs. 20,000, being one month’s salary in lieu of notice. It submitted that the trial court made the award on the basis that “the claimant was not issued with any notice before the termination of his services.” The Appellant maintained that it did not terminate the Claimant’s employment but rather, the Claimant deserted duty. It submitted that an award of notice pay presupposes a 14 ELD ELRCA NO. E002 OF 2024 JUDGMENT

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termination by the employer and cannot arise where the employee has voluntarily abandoned his employment. The Appellant submitted that the Claimant himself testified that he had received notice pay and that the Appellant produced evidence of that payment at trial. 38. The Appellant argued that, in those circumstances, the award resulted in a second payment of notice pay unsupported by the evidence. It urged this Court to set aside the award of Kshs. 20,000. 39. With regard to the award of Kshs. 60,000, equivalent to three months’ salary, as compensation for unfair termination, the Appellant submitted that the award was unjustified in law and on the facts. According to the Appellant, the remedies under section 49 become available only upon a finding that the employer terminated the employee’s employment. It contended that no termination occurred in the present case as the Claimant deserted duty and the defence of absconding was supported by the muster roll and RW1’s testimony. 40. The Appellant submitted that, even if there had been a procedural lapse in its handling of the Claimant’s absence, the trial court ought to have 15 ELD ELRCA NO. E002 OF 2024 JUDGMENT considered the Claimant’s

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contribution to the circumstances of the dispute under section 49(4) of the Act. It averred the Claimant’s alleged abandonment of duty without notice; his failure to produce any document addressed to the Appellant or the Labour Office protesting his alleged dismissal; the filing of suit approximately three years after the alleged dismissal; and the absence of evidence that he remained employed between 2019 and 2021. According to the Appellant, those factors warranted no compensation or, at most, a minimal award rather than three months’ salary. 41. The Appellant also challenged the award of costs to the Respondent. It submitted that the claim rested on an uncorroborated account of termination in 2021 that was inconsistent with its documentary evidence. The Appellant thus urged this Court to set aside the trial court’s order on costs and award it the costs of both the trial proceedings and the appeal. The Respondent’s submissions 42. In his submissions, the Respondent identified the issues for determination to be whether his employment was unlawfully 16 ELD ELRCA NO. E002 OF 2024 JUDGMENT

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terminated and whether he was entitled to the reliefs awarded by the trial court. 43. Relying on sections 41, 43, 45 and 47(5) of the Employment Act, the Respondent submitted that he was informed that his employment was being terminated because of the COVID-19 pandemic. He maintained that he was not given an opportunity to be heard before the termination took effect. 44. The Respondent cited David Gichana Omuya v Mombasa Maize Millers Limited [2014] eKLR and Mary Chemweno Kiptui v Kenya Pipeline Company Limited [2014] eKLR in support of his submission that his verbal dismissal, without a hearing, contravened the requirements of section 41 of the Employment Act. 45. On the reliefs awarded, the Respondent maintained that his dismissal was unlawful and that he was therefore entitled to the compensation granted by the trial court. 46. He urged this Court to dismiss the appeal with costs Determination 47. I have considered the Appellant’s Record of Appeal and the supplementary Record of Appeal as well as the submissions 17 ELD ELRCA NO. E002 OF 2024 JUDGMENT

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by both parties. The grounds of appeal may be summarized into the following issues for determination: i. Whether the trial court erred in finding that the Respondent’s employment was unfairly terminated. ii. Whether the trial court erred in awarding the Respondent Kshs. 20,000 in lieu of notice and Kshs. 60,000 as compensation for unfair termination. iii. Whether the trial court erred in awarding the Respondent costs of the suit. Whether the trial court erred in finding that the Respondent’s employment was unfairly terminated. 48. From the evidence on record, it is not in dispute that the Respondent was employed by the Appellant. The issue in dispute is how the employment relationship ended. On his part, the Respondent maintained that he was verbally dismissed after being informed that the COVID-19 pandemic had affected the Appellant’s business. The Appellant’s case on the other hand was that the Respondent last worked for it on 14th December 2018 and deserted duty when he failed to report back on 3rd January 2019. 18 ELD ELRCA NO. E002 OF 2024 JUDGMENT

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49. Under section 47(5) of the Employment Act, the employee bears the initial burden of proving that an unfair termination or wrongful dismissal occurred. Once that burden is discharged, the employer bears the burden of justifying the grounds for the termination or dismissal. 50. From the Respondent’ testimony, it is not clear when he was allegedly dismissed from employment or by whom. He testified that he was informed of the termination when he returned from the Christmas holidays in 2021, but stated on cross-examination that he was dismissed in August 2021. Further, although he maintained that he worked for the Appellant until 2021, he produced no payslip or other employment record for the period between 2019 and 2021. The only pay slips identified in the Respondent’s record were for May and September, 2017. The evidence therefore does not satisfactorily establish that he continued working until 2021 or the precise date on which the alleged verbal dismissal occurred. 51. Section 47(5) provides for the burden of proof in cases where an employee alleges unfair termination of employment or wrongful dismissal as follows: 19 ELD ELRCA NO. E002 OF 2024 JUDGMENT

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(5) 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. 52. The court of Appeal in Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR explained this burden as follows: 14.Section 47 (5) of the Act provides for the procedure to be followed in matters of complaints of unfair termination as follows: “(5)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 of the termination of employment or wrongful dismissal shall rest on the employer.” [Emphasis added] 20 ELD ELRCA NO. E002 OF 2024 JUDGMENT

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So that, the appellant in this case had the burden to prove, not only that his services were terminated, but also that the termination was unfair or wrongful. Only when this foundation has been laid will the employer be called upon under section 43 (1): "to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45.” 15.We have carefully examined the testimony of the appellant in relation to the discharge of his evidential burden but we are afraid it does not lay the necessary foundation to require the employer's response under section 43. 53. The same reasoning was given in Dungani v West Kenya Sugar Company Limited (Employment and Labour Relations Appeal 12 of 2023) (20241 KEELRC 172 (KLR), the Court of Appeal again clarified that under Section 47(5) of the Employment Act, the employee bears the initial burden of proof in claims of unfair termination. Only when a prima facie 21 ELD ELRCA NO. E002 OF 2024 JUDGMENT

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case is established does the employer need to justify the termination. 54. In the instant case the Respondent pleaded and further testified that he was dismissed from employment when the Corona pandemic hit in 2021. The evidence on record being his pay slips place him at the employment scene last in 2017. The evidence adduced by the Appellant is that the Respondent was last at work when the premises closed for Christmas recess on 14th December, 2018 and that he did not resume duty on 2nd January, 2019 when he was expected to report back to work. This position is corroborated by RW1’s letter dated 6th January 2019 reporting the Respondent’s absence, which shows that the absence was reported to management in an internal communication. The master roll also supported this position. 55. For the Appellant to be called upon to account for the termination of the Respondent’s employment, he must first prove that his employment was terminated by the Respondent at the time and in the manner he has alleged. If he fails to prove this then the case must collapse. 22 ELD ELRCA NO. E002 OF 2024 JUDGMENT

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56. From the Respondent’s evidence in this case, it is not clear when he was last in at work and how his employment terminated. The court further observes that if the Appellant’s evidence is to be accepted based on the letter dated 6 th January, 2019 reporting the absence of the Respondent and the master roll, the claim herein would be statute barred, the same having been filed on 11th September, 2023. 57. On the other hand, there is no evidence from the Respondent to support his averment that his employment was terminated in January, 2021 when he reported back from Christmas break. 58. For these reasons I find that the Trial Magistrate erred in shifting the burden to the Appellant to prove reasons for termination without making a finding whether the Respondent had proved the unfair termination of his employment. 59. The foregoing further leads to the finding that the Trial Court erred in finding the Appellant liable for unfair termination of the Respondent without coming to that conclusion in the analysis of the evidence, and in awarding the Respondent Kshs. 20,000 in lieu of notice compensation for unfair termination. 23 ELD ELRCA NO. E002 OF 2024 JUDGMENT and Kshs. 60,000 as

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60. Consequently, I find that the appeal is meritorious. I accordingly make the following orders that: i. The judgment of the trial court in delivered on 23rd November 2023 in Eldoret CMELRC No. 105 of 2022 hereby set aside in its entirety and replaced with an order dismissing the Respondents claim. ii. Each party shall bear its costs in the trial court and on appeal. 61. Orders accordingly DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 1ST DAY OF OCTOBER, 2026 MAUREEN ONYANGO JUDGE 24 ELD ELRCA NO. E002 OF 2024 JUDGMENT

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