Tick Security Services Limited v Mwandeto Kivelenge Nzano

Elrc Appeal No. E014 Of 2025 paid his salary up to and including March 2020, and then stopped. He never returned to work. He says that he was dismissed. The Appellant says that he was not; its case, at different stages of the proceedings, has been either that he deserted duty or that his three-month contract simply expired. 2. The learned trial magistrate found for the Respondent and awarded him Kshs. 269,889 with costs, interest and a certificate of service. The Appellant appeals against the whole of that judgment. B. BACKGROUND (a) The pleadings 3. By a Memorandum of Claim dated 4th July 2022, the Respondent pleaded that he worked for the Appellant continuously from 1st July 2010 to 30th April 2020 without being issued with a written contract; that he earned a gross monthly salary of Kshs. 8,500, which was below the statutory minimum; that he worked from 6.00 p.m. to 7.00 a.m. every day of the week, including public holidays, without overtime pay; that he was never allowed to go on leave; and that he 2

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Elrc Appeal No. E014 Of 2025 was dismissed while on sick leave following a road traffic accident on 10th December 2019, without a reason, without a hearing and without notice. 4. He sought a declaration that the dismissal was unfair, two months’ pay in lieu of notice, pay for untaken leave, leave travelling allowance, gratuity, twelve months’ compensation, pay for public holidays and rest days worked, salary underpayments, overtime, a certificate of service, interest and costs. 5. By its Response and Counterclaim dated 2nd September 2022, the Appellant denied that the Respondent served continuously. It pleaded that he was “engaged on an intermittent three (3) months contract, that was subject to availability of work”, and that a certificate of service was issued at the end of each contract. It denied dismissing him. Its positive case was that he had deserted: that the accident happened while he was “on a frolic of his own” away from his designated station; that the Appellant nonetheless saw to his treatment and paid his salary up to and including March 2020; that after his discharge he “never reported back to 3

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Elrc Appeal No. E014 Of 2025 work nor communicated with the respondent”, could not be reached on his known telephone number, and “left employment on his own volition”; and that, in view of his “voluntary desertion of duty”, questions of notice, reasons or a hearing “cannot arise”. By its Counterclaim, the Appellant averred that his failure to return to work amounted to desertion without notice, and claimed one month’s pay in lieu of notice, Kshs. 8,500. 6. In his Reply dated 19th September 2022, the Respondent denied ever signing any periodic contract. He averred that on his discharge on or about 20th February 2020 he was confined to a wheelchair, a fact he communicated to his supervisor, Mr. Paul Nguzo, from whom he sought sick leave; that the Appellant never attempted to reach him, although his telephone line remained active throughout; and that the Appellant stopped his salary after March 2020 without notice and denied him access to his place of work. (b) The evidence 7. The Respondent testified on 3rd September 2024. He adopted his witness statement and produced his documents, 4

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Elrc Appeal No. E014 Of 2025 among them the demand letter, his NHIF and NSSF statements, his Kenya Ports Authority pass describing him as a security guard of the Appellant, a police abstract, a medical report and a Co-operative Bank salary account statement. He testified that he stayed in hospital for three months and was discharged on a wheelchair, on which he remained until 28th May 2021, when the implants were removed; that he was paid his salary for December 2019 and for January, February and March 2020; that when he went to check his salary for April and May 2020 he found that it had not been paid; that the Appellant did not try to contact him; that he was told that there was no work for him and that his employment had been terminated; and that he was never issued with a termination letter. Shown the Appellant’s bundle of contracts, he denied that the signatures on them were his, stating that he had never seen them and did not sign any contract in the ten years he worked for the Appellant. He said that, as a night guard, he could not work from a wheelchair, and that the Appellant ought to have waited for him to heal before recalling him to work. 5

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Elrc Appeal No. E014 Of 2025 8. The Appellant called one witness, Paul Nguzo Semani (RW1), its operations manager, who adopted his witness statement filed on 24th April 2023. The statement gave a detailed account of the night of the accident: that RW1, together with the director of Tizi Hauliers, the owner of the vehicle involved, booked the Respondent into hospital, paid the initial charges and arranged for blood donors; that after the Respondent’s discharge on 20th February 2020 “we made effort of the claimant to be able to attend clinics and Tizi staff also availed some assistance for the Claimant to be taken from Likoni to Coast General Teaching & Referral Hospital to attend clinics”; that once the Respondent could move independently he “changed his telephone number”; that “We made efforts to reach the Claimant through two of his earlier referees on record at office but all was in vain”; and that “the Claimant deserted duty despite all the care we gave him”. The statement does not say that any contract expired. 9. The Appellant produced, among other documents, its advocates’ letters of 9th February 2022 and 10th June 2022, 6

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Elrc Appeal No. E014 Of 2025 a code of conduct, charge sheets and show cause letters spanning 2014 to 2019, a bank confirmation of the salary payments for December 2019 to March 2020, a document titled “Employment Contract Agreement” dated 10th November 2019 and stated to run to 7th February 2020, and a further bundle of contracts. 10. Cross-examined, RW1 conceded that none of the contracts was signed by the Respondent. He maintained that the Respondent worked on three-month contracts, which the Appellant renewed despite several disciplinary charges between 2014 and 2019 “because the charges were minor”, although one of the charge sheets, dated 17th January 2019, was endorsed “terminated”. He stated that “The unsigned was to end on 7/2/2020”, that the Appellant paid the Respondent’s salary for February and March 2020, and that it was aware of the accident. He conceded that the Appellant had not documented its attempts to reach the Respondent after his hospitalisation, had not reported his alleged desertion to the labour officer, and had produced neither attendance records nor pay slips. In re-examination he said 7

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Elrc Appeal No. E014 Of 2025 that in January 2020 the Respondent “was on a different contract from that of December 2019”, and that the salary for March 2020 was paid “to enable the claimant undergo treatment”. (c) The judgment of the trial court 11. By a judgment delivered on 3rd February 2025, the learned magistrate (Hon. J. B. Kalo, CM) found that no notice of termination was issued; that the Respondent’s dismissal “was not conducted in accordance with the law”, his employment having been terminated while he was hospitalised for injuries sustained in the course of his employment; and that the Appellant had neither rebutted the Respondent’s evidence on his hours of work nor shown that he was offered a chance to go on leave. The learned magistrate awarded one month’s salary in lieu of notice (Kshs. 17,412), leave pay for eighteen months (Kshs. 26,118), ten months’ salary as compensation (Kshs. 174,120) and overtime for July to December 2019 (Kshs. 52,239), in all Kshs. 269,889, together with costs, interest and a certificate of service. The claims for leave travelling 8

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Elrc Appeal No. E014 Of 2025 allowance, gratuity, public holidays, rest days and underpayment were declined. C. THE APPEAL 12. By its Memorandum of Appeal dated 13th February 2025, the Appellant faults the learned magistrate on ten grounds. In substance, they are that he failed to analyse the pleadings and the evidence; that he ignored the fact that the Respondent was on a fixed-term contract which lapsed, so that there was no termination to found an award of notice pay or compensation; that he ignored binding authority; that he disregarded contradictions in the Respondent’s own account of the date and manner of his termination; and that he relied on wrong facts and principles and failed to determine the issues placed before him. (a) The Appellant’s submissions 13. The Appellant submitted that the operative contract at the time of separation was that dated 10th November 2019, which expired on 7th February 2020; that each of the Respondent’s contracts was distinct and came to an end on its own terms, so that they could not be aggregated into 9

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Elrc Appeal No. E014 Of 2025 continuous service (Stanley Kiptanui Bii v Catholic Diocese of Nakuru [2020] eKLR; Tick Security Services Limited v Joseph Kiseli, Mombasa ELRC Appeal No. E003 of 2024); and that a fixed-term contract ends by effluxion of time without any obligation on the employer to give notice or reasons (The Registered Trustees De La Salle Christian Brothers t/a St. Mary’s Boys’ Secondary School v Julius D. M. Baini [2017] eKLR; Amatsi Water Services Company Limited v Francis Shire Chachi [2018] eKLR). 14. It argued that the Respondent had not discharged his burden under section 47(5) of the Employment Act of proving that a termination occurred, his own account being contradictory: his witness statement placed his dismissal on 10th December 2019, his pleadings on 30th April 2020, and his oral evidence in May 2020, when he found that his salary had not been paid (Protus Wanjala Mutike v Anglo African Properties t/a Jambo Mutara Lodge Laikipia [2021] eKLR; George Imbulu Muhalia v Glaxo Smithkline Limited [2018] eKLR). The Appellant, it said, had treated the Respondent 10

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Elrc Appeal No. E014 Of 2025 with great generosity, paying his salary throughout his incapacity. 15. On the reliefs, it submitted that no notice was due on the expiry of a fixed-term contract; that compensation is not automatic and ten months was excessive where there were no aggravating circumstances (Kiambaa Dairy Farmers Cooperative Society Limited v Rhoda Njeri & 3 others [2018] eKLR); that the Respondent, not having served twelve consecutive months under any one contract, did not qualify for leave under section 28(1); and that the claims for leave and overtime, being continuing injuries, ought to have been brought within twelve months of the cessation of the contract in February 2020 and were therefore time-barred under section 89 of the Employment Act, the suit having been filed in July 2022 (John Kiiru Njiiri v University of Nairobi [2021] eKLR, citing G4S Security Services (K) Limited v Joseph Kamau & 468 others [2018] eKLR). (b) The Respondent’s submissions 16. The Respondent submitted that the Appellant, as the custodian of employment records under the Employment 11

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Elrc Appeal No. E014 Of 2025 Act, bore the duty of producing them, and that where it failed to do so the employee’s account of the terms of employment must be taken as true (Abigael Jepkosgei Yator & another v China Hanan International Co. Ltd [2018] eKLR). None of the contracts produced was signed by him, and the Appellant produced no attendance records to show intermittent engagements. It was, he said, inconceivable that the contracts Appellant would have over years notwithstanding ten renewed three-month the many disciplinary charges it had levelled against him, including one in which termination was recommended. He had therefore served continuously from 1st July 2010 to 30th April 2020. 17. He submitted that the Appellant had shown neither a valid reason for the termination nor compliance with section 41 (Walter Ogal Anuro v Teachers Service Commission [2013] eKLR; David Gichana Omuya v Mombasa Maize Millers Limited [2014] eKLR; Alphonce Machanga Mwachanya v Operation 680 Limited [2013] eKLR); that an employer alleging desertion must show that it attempted to reach the 12

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Elrc Appeal No. E014 Of 2025 employee and required him to account for his absence, and that it is not enough simply to assert desertion (Luka Mbuvi v Economic Industries Limited [2020] eKLR; Evans Ochieng Oluoch v Njimia Pharmaceuticals Limited [2016] eKLR; James Ashiembi Namayi v Menengai Oil Refineries Ltd [2016] eKLR); and that the Appellant made no such attempt and did not notify the labour officer. He urged that the appeal be dismissed with costs. D. ANALYSIS AND DETERMINATION 18. This is a first appeal. It is the duty of this Court to reconsider and re-evaluate the evidence and to draw its own conclusions, bearing in mind that it neither saw nor heard the witnesses and making due allowance for that (Selle & another v Associated Motor Boat Company Ltd & others [1968] EA 123). The parties took sharply opposed positions before the trial court, and the documents they placed before it are at the heart of the dispute. They therefore call for a critical examination. 19. Having considered the record and the submissions, I find that the following issues arise for determination: 13

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Elrc Appeal No. E014 Of 2025 (i) Under what form of employment was the Respondent serving the Appellant at the time of separation? (ii) Did the Respondent’s employment come to an end by effluxion of time, by his desertion, or by termination at the instance of the Appellant? (iii) If the Appellant terminated the employment, was the termination fair? (iv) Were the reliefs awarded justified? (a) The form of the Respondent’s employment 20. The question under what form of employment the Respondent served must be answered at the outset, for everything else depends on it. The Appellant says that he served under a series of distinct fixed-term contracts of three months each, the last of which ran from 10th November 2019 to 7th February 2020. The Respondent says that he was never issued with, and never signed, any contract, and that he served continuously for close to ten years. If the Appellant is right, the contract ended on its own terms and there was no termination to be justified. If the Respondent is right, his employment was of indefinite 14

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Elrc Appeal No. E014 Of 2025 duration and could only be brought to an end in accordance with Part VI of the Employment Act. 21. Two provisions of the Employment Act guide the inquiry. Section 9(1) requires a contract of service for a period, or a number of working days, amounting in the aggregate to three months or more to be in writing. Section 9(2) makes the employer responsible for causing the contract to be drawn up and for ensuring that the employee consents to it, and section 9(3) prescribes the manner of that consent: the employee signs the contract or imprints his thumb or finger on it. Section 10(7) then provides that where, in any legal proceedings, an employer fails to produce a written contract or the written particulars prescribed by section 10(1), the burden of proving or disproving an alleged term of employment shall be on the employer. The employer is, besides, the statutory custodian of the records of its employees’ engagement and pay (section 74). 22. It was, therefore, for the Appellant, which asserted that the Respondent served under fixed-term contracts, to prove that he did. The question is whether it did so. 15

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Elrc Appeal No. E014 Of 2025 (b) Desertion and effluxion of time cannot co-exist 23. Before turning to the contracts, I must observe that the Appellant’s case on how the employment ended was not one case but two, and that the two are irreconcilable. 24. In its Response, the Appellant’s pleaded case was desertion. It averred that after his discharge the Respondent “never reported back to work”, that he “left employment on his own volition”, that he “absconded, never came back to work despite being implored to”, and that his “voluntary desertion of duty” excluded any question of notice, reasons or a hearing. Its Counterclaim was founded on the same premise: it sought pay in lieu of notice from the Respondent because he had deserted without giving notice. Its advocates’ letter of 9th February 2022, in answer to the demand, said in terms that “he deserted duty”, and their letter of 10th June 2022 referred to “your client’s desertion from duty”. The witness statement of RW1 closes with the words “We maintain that the Claimant deserted duty.” Nowhere in the pleadings, in the pre-action correspondence or in the witness 16

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Elrc Appeal No. E014 Of 2025 statement is it said that any contract expired on 7th February 2020 or at all. 25. The case of effluxion of time emerged only at the hearing, when RW1 stated in cross-examination that the unsigned contract “was to end on 7/2/2020”, and it was then developed in the written submissions, before the trial court and in this Court, into the Appellant’s principal case. 26. The two positions cannot be married. Effluxion of time means that the contract of service came to an end by its own terms on the date it stipulated, by the mere passage of time and without any act of either party. Desertion, on the other hand, presupposes a subsisting contract of service which the employee, by absenting himself without leave and with the intention of not returning, has abandoned. An employee cannot desert employment that has already ended. If, as the Appellant now says, the Respondent’s contract expired on 7th February 2020, while he was still in hospital, there was no employment for him to desert when he was discharged on 20th February 2020, and nothing to which he could have been “beckoned” to return. Conversely, 17

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Elrc Appeal No. E014 Of 2025 if he deserted after his discharge, then his contract must have been subsisting after 7th February 2020, and it did not expire on that date. Only one of the two can be true. 27. The Appellant’s own conduct points firmly away from effluxion. It paid the Respondent his salary for February and March 2020, after the date on which it now says his contract ended. Its witness’s explanation, that the March salary was paid to enable the Respondent to undergo treatment, does not account for the February salary, and in any event an employer does not ordinarily continue to pay a salary to a person whose contract has expired. Its Counterclaim for notice pay, its correspondence and its witness statement are all premised on a continuing contract. Further, RW1’s evidence in re-examination that in January 2020 the Respondent “was on a different contract from that of December 2019” is irreconcilable with the Appellant’s own case that a single contract ran from 10th November 2019 to 7th February 2020. 28. It is a settled principle that parties are bound by their pleadings, and that a court may not decide a case on a basis 18

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Elrc Appeal No. E014 Of 2025 that the parties did not plead (Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR). Pleadings exist so that each party knows the case it has to meet. The Respondent came to court to meet a defence of desertion. The Appellant cannot, having pleaded desertion, succeed on a different and inconsistent case of effluxion of time advanced through its witness’s oral answers and its counsel’s submissions. This alone is sufficient to dispose of the contention that the Respondent’s employment ended by effluxion of time. But I will go further and examine the contract on which that contention rests. (c) The alleged last contract 29. The document on which the Appellant relies is the “Employment Contract Agreement” said to have been made on 10th November 2019 and to run for three months to 7th February 2020. The Respondent denied it on oath. He said that he had never seen it, and that the signatures on the Appellant’s contracts were not his. A close examination of the document bears him out, for several reasons. 19

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Elrc Appeal No. E014 Of 2025 (i) It is not signed acknowledgment by by the Respondent. the employee, where The the employee was to write his name, sign, place his left thumbprint and date his acceptance of the offer, is blank. RW1 conceded as much, and he conceded further that none of the contracts in the Appellant’s bundle was signed by the Respondent. Consent to a contract of service is signified in the manner prescribed by section 9(3) of the Employment Act. A document that the employee never signed is, at most, an offer that was never shown to have been accepted. (ii) It is not signed on behalf of the Appellant either. The space provided for the Managing Director or Human Resource Officer bears only a company stamp. The sole signature on it is that of RW1 himself, in the space reserved for the witness. A witness attests to the execution of a document by the parties to it. Here there was no execution by either party for him to attest. (iii) Its own contents cast grave doubt on the date it bears. The recital, printed as part of the form, explains that 20

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Elrc Appeal No. E014 Of 2025 the Appellant cannot offer long-term contracts because its work at the port is unpredictable and has been adversely affected by the SGR operations “as well as emergence of the novel corona virus”. It is a matter of such general notoriety that the Court may take judicial notice of it that the novel coronavirus had not emerged into public knowledge by 10th November 2019. It first came to the world’s attention at the very end of December 2019, and it was not until March 2020 that it was reported in Kenya. A form that speaks of its emergence could not have been printed, let alone executed, on 10th November 2019. The inescapable inference is that the document was prepared after the event. (iv) The earlier documents are no better. The “Certificate of contract completion”, by which the previous contract is said to have ended on 6th November 2019, and in which the Respondent is made to declare that he has no pending claim, is signed by neither party. The bundle includes several “casual employment” forms for 21

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Elrc Appeal No. E014 Of 2025 periods of eighty-eight days alongside the three-month contracts, so that the Appellant’s own documents do not agree on the nature of the engagement they are said to record. The Appellant produced no attendance record, muster roll or pay slip to show when each engagement began and ended, or that there were any breaks between them. On the other hand, the Respondent’s salary account statement, for the periods it covers, shows the Appellant’s salary credited to his account month after month, without interruption. (v) The Appellant’s disciplinary record of the Respondent is consistent only with continuous service. The charge sheets and show cause letters it produced run from 2014 to 2019, and one of them, dated 17th January 2019, is endorsed “terminated”. Yet the Respondent remained in its service thereafter. RW1’s explanation, that the contracts were renewed because the charges were minor, sits uneasily with an endorsement of termination. An employer that treated each threemonth contract as 22 distinct would hardly have

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Elrc Appeal No. E014 Of 2025 maintained a single, running disciplinary file across the years in this way. 30. I also note that the Appellant’s own pleading was that the Respondent was engaged on intermittent contracts “subject to availability of work”, and that at the end of each a certificate of service was issued. Not a single certificate of service, other than the unsigned certificate of completion, was produced. The Appellant, on whom the burden lay under section 10(7), did not produce the records that would have shown the gaps it alleged. 31. The authorities on which the Appellant relies, Stanley Kiptanui Bii, De La Salle Christian Brothers and Tick Security Services Limited v Joseph Kiseli, each proceeded on the footing that the fixed-term contracts before the court were proved to have been entered into. They state, correctly, that a fixed-term contract duly entered into ends by effluxion of time, and that no reason beyond the expiry of the term need be given. They do not assist an employer that has failed to prove that there was any such contract to expire. 23

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Elrc Appeal No. E014 Of 2025 32. These circumstances, taken together with the Appellant’s shifting case described above, drive this Court to the conclusion that the Respondent was not serving under a fixed-term contract at the time of separation. I find that he served the Appellant continuously, under an oral contract of indefinite duration, from on or about 1st July 2010, with his wages paid monthly. His service did not, therefore, come to an end by effluxion of time. The learned magistrate did not analyse this issue expressly, and to that extent the Appellant’s complaint of want of analysis has some force. But the conclusion he reached is the correct one. Grounds 5 and 6 of the appeal fail. (d) Did the Respondent desert duty? 33. That leaves the defence of desertion, which the Appellant pleaded. Desertion connotes more than absence from work. It is an employee’s abandonment of his employment: an absence without permission or lawful cause, coupled with an intention not to return to work. Unexplained absence is capable of amounting to gross misconduct under section 44(4)(a) of the Employment Act. But desertion, like every 24

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Elrc Appeal No. E014 Of 2025 other form of misconduct, must be proved by the employer that asserts it. It is not established by a bare assertion that the employee stopped reporting for work. 34. This Court has consistently held that an employer asserting desertion must demonstrate that it made reasonable efforts to reach the employee, to establish his whereabouts and the reason for his absence, and to require him to resume duty or to account for his absence; and that, at the very least, it notified the employee that termination on the ground of desertion was being considered. In Felistas Acheha Ikatwa v Charles Peter Otieno [2018] KEELRC 2491 (KLR), following Stanley Omwoyo Onchweri v Board of Management Nakuru YMCA Secondary School [2015] eKLR and Dickson Matingi v DB Schenker Limited [2016] eKLR, the Court held: “An employer claiming that an employee has deserted duty must demonstrate efforts made towards getting the employee to resume duty. At the very least, the employer is expected to issue a notice to the deserting employee that termination of employment on the ground of desertion is being considered.” 35. In the same vein, the Court in James Ashiembi Namayi v Menengai Oil Refineries Ltd [2016] eKLR held that an 25

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Elrc Appeal No. E014 Of 2025 employer relying on desertion as a ground for termination of employment must demonstrate attempts made to reach out to the employee to establish his whereabouts, and that it is not enough for an employer simply to state that an employee has deserted duty. 36. The reasons for this requirement are not difficult to see. First, absence is equivocal. An employee may be absent because he is sick, injured, detained or otherwise prevented from attending, and none of these is abandonment of the employment. The requirement that the employer inquire is what distinguishes an employee who has chosen to walk away from one who has been prevented from coming. Secondly, an employee who deserts does not thereby dismiss himself. The contract continues until it is brought to an end, and it is the employer that ends it. Under section 41 of the Employment Act, an employee may not be dismissed for misconduct, including gross misconduct, without first being told of the reason and heard. The employer’s efforts to reach the absent employee are the means by which that requirement is met in the case of an absentee. Thirdly, these 26

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Elrc Appeal No. E014 Of 2025 requirements protect against the very danger that arises in this case: that an employer, having in truth let an employee go, may afterwards present the separation as desertion in order to escape the consequences of an unprocedural termination. 37. Measured against these principles, the Appellant’s case falls far short. The only evidence of any attempt to reach the Respondent is RW1’s statement that the Respondent changed his telephone number and that “We made efforts to reach the Claimant through two of his earlier referees on record at office but all was in vain.” That is a bare assertion. The Respondent denied it and said that his line was active throughout. The Appellant produced no call log, no text message, no letter to the Respondent’s postal address, and no notice or show cause letter requiring him to resume duty. It did not notify the labour officer. RW1 conceded in crossexamination that the Appellant had “not documented our attempts to reach him after hospitalisation”. 38. The alleged referees are not named, and it is not said when they were approached or what they said. Nothing was placed 27

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Elrc Appeal No. E014 Of 2025 before the court from which it could test the assertion. An employer that had genuinely made the efforts described would have had no difficulty in saying who the referees were. 39. There is a more fundamental difficulty. On the Appellant’s own evidence, it knew exactly where the Respondent was and what his condition was. RW1 was at the scene on the night of the accident and took him to hospital. He arranged blood donors for him. After the Respondent’s discharge, the Appellant, together with the owner of the accident vehicle, helped him attend his clinics, and Tizi Hauliers’ staff picked him up from his home in Likoni and took him to hospital. The Appellant thus knew that he lived in Likoni, it knew the route to his home, and it knew that he was in a wheelchair. If it had truly wished to know why he had not reported for duty, or to require him to resume, nothing could have been easier than for it to visit him physically. It did not do so. A night guard confined to a wheelchair is not an employee who has absconded. He is an employee who is unable to work. 28

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Elrc Appeal No. E014 Of 2025 40. Moreover, the premise that the Respondent “never communicated” is contradicted by the Appellant’s own conduct. It paid his salary for four months while he was indisposed, which it could only have done in the knowledge that he was unwell. It then stopped the salary without a word to him. 41. Against that, the Respondent’s account is consistent and probable. He was discharged on a wheelchair and remained on it until May 2021. He was paid until March 2020. When his salary for April was not paid, he inquired and was told that there was no work for him and that his employment had been terminated. The Appellant never wrote to him to say otherwise until it was confronted with his advocates’ demand some two years later. It is not difficult to agree with the Respondent’s version. 42. The Appellant made much of the differences in the dates that the Respondent gave for his termination: 10th December 2019 in his witness statement, 30th April 2020 in his pleadings, and May 2020 in his testimony. I do not think that these differences undermine his case. The date in the 29

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Elrc Appeal No. E014 Of 2025 witness statement is the date of the accident, from which, on any view, he never resumed active duty. The pleaded date, 30th April 2020, is the end of the first month for which he was not paid. The date in his testimony is when he discovered that he had not been paid. The essential facts, which the Appellant itself admits, are consistent: the Respondent was injured and hospitalised; he was paid up to and including March 2020; the salary then stopped without any communication; and he was never recalled or heard. The burden on the employee under section 47(5) is to show that an unfair termination occurred. The Respondent showed that the Appellant, knowing of his incapacity, stopped paying him and treated the employment as at an end, and that he was told that he had been terminated. That discharged his burden, and the burden of justification then passed to the Appellant. 43. I therefore find that the Appellant did not prove desertion, and that the Respondent’s employment was terminated by the Appellant with effect from the end of March 2020. Grounds 3, 7 and 8 fail. 30

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Elrc Appeal No. E014 Of 2025 (e) Was the termination fair? 44. Section 45(2) of the Employment Act provides that a termination of employment is unfair if the employer fails to prove that the reason for it is valid; that the reason is a fair reason related to the employee’s conduct, capacity or compatibility, or based on the operational requirements of the employer; and that the employment was terminated in accordance with fair procedure. Section 43 casts on the employer the burden of proving the reason for termination, failing which the termination is deemed unfair. Section 41 prescribes the minimum procedure: the employer must explain to the employee, in a language he understands and in the presence of a fellow employee or shop floor union representative of his choice, the reason for which termination is being considered, and must hear and consider any representations the employee or his representative may make before deciding. Section 45(4)(b) further renders a termination unfair where the employer did not act in accordance with justice and equity. 31

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Elrc Appeal No. E014 Of 2025 45. Fairness thus has two aspects, and the employer must prove both: substantive justification, that is, a valid and fair reason; and procedural fairness, that is, compliance with the process in section 41 (Walter Ogal Anuro v Teachers Service Commission [2013] eKLR). The Court of Appeal emphasised in Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR that the procedure in section 41 is mandatory, and that it applies even where the employer contemplates summary dismissal for gross misconduct. 46. On substantive justification, the only reason the Appellant put forward was desertion. Having failed to prove desertion, it proved no reason at all. The accident, even if it occurred when the Respondent was away from his designated post, was not advanced as a ground of dismissal, and no disciplinary process was ever taken in respect of it. Nor did the Appellant contend that it terminated the employment on account of the Respondent’s incapacity. Had it wished to do so, the law would have required it to establish the nature and likely duration of his incapacity and to hear him before 32

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Elrc Appeal No. E014 Of 2025 taking that step. The termination lacked substantive justification. 47. On procedural fairness, the Appellant took the misguided position, both in its Response and before this Court, that where an employee deserts duty there is no room for a notice, a disciplinary process or a hearing. That is not the law. As I have explained, a deserting employee does not dismiss himself, and an employer that wishes to end the employment on the ground of desertion must still afford him the process that section 41 requires, beginning with efforts to reach him. The Appellant, proceeding on that mistaken view, afforded the Respondent no process at all. He was not told of any reason for which termination was being considered, he was not invited to any hearing, and he was not heard. He was simply left off the payroll while he was recovering from injuries of which the Appellant was fully aware. The termination was procedurally unfair. 48. The learned magistrate was therefore right to hold that the Respondent’s termination was unfair. 33

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Elrc Appeal No. E014 Of 2025 (f) Were the reliefs justified? 49. Notice pay. The Respondent’s employment being one of indefinite duration with wages paid monthly, it could only be terminated on one month’s notice or payment in lieu under section 35(1)(c) and section 36 of the Employment Act. None was given. The Appellant’s challenge to this award rests entirely on the premise that the contract expired, which I have rejected. The award of one month’s salary in lieu of notice stands. 50. Compensation. An award of compensation under section 49(1)(c) of the Employment Act is discretionary. An appellate court will interfere with the exercise of that discretion only where 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 where the award is so inordinately high or low as to be plainly wrong (Mbogo & another v Shah [1968] EA 93). I agree with the Appellant, and with Kiambaa Dairy Farmers Co-operative Society Limited v Rhoda Njeri & 3 others (supra), that compensation is not automatic and that the 34

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Elrc Appeal No. E014 Of 2025 assessment must be made with the range of zero to twelve months in mind, having regard to the factors in section 49(4). 51. The learned magistrate did not err in principle. The Respondent had served the Appellant for close to ten years. He was terminated in the manner described, without a reason and without a hearing, at a time when the Appellant verily knew his post-accident condition: that he had been gravely injured, that he was confined to a wheelchair, and that he was unable to work. The medical report assessed his permanent disability at seventy-five percent, with highly diminished capacity to work, so that his prospects of securing comparable employment were bleak. The Appellant’s humane conduct immediately after the accident, which I acknowledge, does not diminish the unfairness of what followed. It was entitled to be taken into account, and the learned magistrate awarded ten months, not the maximum twelve. Considering the manner of the termination and the other factors under section 49(4), I see no basis on which to interfere with the award. It is maintained. 35

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Elrc Appeal No. E014 Of 2025 52. Leave pay and overtime. These claims stand on a different footing. The Appellant raised limitation before the trial court and again before this Court. The learned magistrate did not address it in respect of leave pay, and in respect of overtime he appears to have limited the award to a period of about six months without explaining the basis. Limitation goes to the jurisdiction of the court to entertain a claim. If a claim is statute-barred, the court has no jurisdiction to adjudicate upon it, and the point must be determined whenever it arises. 53. Section 89 of the Employment Act (formerly section 90) provides: “Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act (Cap. 22), no civil action or proceedings based or arising out of this Act or a contract of service in general 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 continuing injury or damage within twelve months next after the cessation thereof.” 54. The provision is couched in mandatory terms. In The German School Society & another v Ohany & another (Civil Appeal Nos. 325 & 342 of 2018 (Consolidated)) [2023] KECA 894 36

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Elrc Appeal No. E014 Of 2025 (KLR), the Court of Appeal (Okwengu, Omondi and Mativo, JJ.A.) considered the meaning of “continuing injury” in this provision. The Court explained that a continuing wrong is one that arises from the breach of an obligation of a continuing nature, which creates a continuing source of injury, as distinguished from a completed wrong whose effects merely persist. It held that, because an employment relationship gives rise to reciprocal rights and obligations that subsist for as long as the relationship lasts, an employee who continues to work under the same circumstances while the employer persists in a breach of its obligations towards him (in that case, by way of underpayment and denial of benefits) suffers a continuing injury. The consequence under the proviso is that the twelvemonth period runs from the cessation of the injury, which is, at the latest, when the employment itself comes to an end. This accords with the earlier decision of the Court of Appeal in G4S Security Services (K) Limited v Joseph Kamau & 468 others [2018] eKLR, that upon the employee’s dismissal, any 37

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Elrc Appeal No. E014 Of 2025 claim based on a continuing injury ought to be filed within twelve months, failing which it is time-barred. 55. The Respondent’s claims for leave earned but not taken and for overtime are, by their nature, claims of that kind. His case was that throughout his service he was never allowed to take leave and was never paid for the hours he worked beyond the normal working hours. That is a complaint of a breach of the employer’s continuing obligations, repeated for as long as the employment lasted, and it ceased, at the latest, when the employment ended. Both were continuing injury claims. 56. On the Respondent’s own case, his employment ended on 30th April 2020. Taking the date most favourable to him, the twelve months prescribed by section 89 expired on 30th April 2021. The suit was instituted by a Memorandum of Claim dated 4th July 2022, more than two years after the cessation of the injury and more than fourteen months after the limitation period had expired. The claims for leave pay and overtime were therefore time-barred. The trial court had no jurisdiction to entertain them, and the awards of Kshs. 38

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Elrc Appeal No. E014 Of 2025 26,118 for leave and Kshs. 52,239 for overtime must be set aside. The Appellant’s alternative argument, that the Respondent did not qualify for leave under section 28(1) because no single contract lasted twelve months, falls away with my finding that his service was continuous, and it is in any event unnecessary to decide it. 57. Certificate of service. Section 51 of the Employment Act entitles every employee whose employment is terminated to a certificate of service. The order stands. E. DISPOSITION 58. The appeal succeeds only to the extent of the awards for leave pay and overtime. It fails in all other respects. I make the following orders: (a) The appeal is allowed in part. (b) The awards of Kshs. 26,118 for leave pay and Kshs. 52,239 for overtime made in the judgment of the trial court delivered on 3rd February 2025 in Mombasa CMELRC No. E416 of 2022 are set aside, and the claims for leave pay and overtime are dismissed as timebarred under section 89 of the Employment Act. 39

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Elrc Appeal No. E014 Of 2025 (c) The findings of the trial court that the Respondent’s employment was unfairly terminated, and the awards of Kshs. 17,412 as one month’s salary in lieu of notice and Kshs. 174,120 as compensation under section 49(1)(c) of the Employment Act, are upheld. The judgment sum is accordingly varied from Kshs. 269,889 to Kshs. 191,532. (d) The orders of the trial court on interest, the costs of the suit and the certificate of service are undisturbed. (e) Each party shall bear its own costs of this appeal. DATED, SIGNED AND DELIVERED at MOMBASA this 30th day of September 2026. ……………………………………………………. OCHARO KEBIRA JUDGE 40

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