https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1924

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT ELDORET** **ELRC APPEAL NO. E027 OF 2023** *(Before Hon. Lady Justice Maureen Onyango)* **ABRAHAM K. RONO .……...……………………………. APPELLANT** **VERSUS** **AMRITLAL S. SHAH WHOLESALERS LTD .......... RESPONDENT** *(Being an appeal and cross appeal from the judgment and decision of Honourable R. Odenyo, Senior Principal Magistrate, dated and delivered on 28th September, 2023 in Eldoret Chief Magistrates Court, CMELRC No. 8 of 2020,* ABRAHAM K. RONO *versus* AMRITLAL S. SHAH WHOLESALERS LTD*)* **JUDGMENT** 1. The Appellant herein was the Claimant in Eldoret CMELRC No. 8 of 2020 wherein he sued the Respondent vide a Statement of Claim dated 21st January 2020 seeking compensation for alleged unfair termination of his employment and for payment of his terminal dues. 2. Upon hearing the parties, the trial court delivered its judgment on 28th September, 2023, dismissing the claim. The Appellant being dissatisfied with the said judgement instituted the instant appeal vide the Memorandum of Appeal dated 27th October, 2023 on the following grounds of appeal: 3. That the Learned Magistrate erred in law and fact in disregarding the evidence tendered by the Appellant and /or failing to consider the said evidence in its totality. 4. That the Learned Magistrate erred in law and fact by failing to appreciate the significance of the documentary evidence tendered in support of the appellant’s case. 5. That the Learned Magistrate erred in law and fact in making a finding that the Appellant's case had no merit and finding that the Appellant had been offered a cheque but had failed to collect. 6. That the Learned Magistrate erred in law and fact by failing to consider the applicant's submissions and thus arriving at a wrong decision. 7. That the Learned Magistrate erred in law and fact in misapprehending the evidence on record tendered by the Appellant. 8. That the Learned Magistrate erred in law and fact in arriving at a conclusion and inference which were not supported by evidence and/or based on any law. 9. Consequently, the Appellant prayed for this Appeal be allowed and the judgment dismissing the Claim be set aside and the Honourable Court be pleased to order that: - 10. This Honourable court be pleased to set aside the judgement of the trial court. 11. This appeal be allowed in its entirety. 12. This Honourable court be pleased to make its own decision based on a proper examination of the evidence on record and the law. 13. Any other relief this Honourable court deems fit and fair to grant. 14. Cost of this appeal 15. The Respondent filed a cross appeal dated 22nd October, 2024 on grounds that: 16. That the learned Trial Magistrate erred infact and inlaw in awarding the Appellant Kshs 208,782.42 as settlement and failing to dismiss the suit when he made the correct finding that the appellant had not proved his case. 17. That the learned Magistrate erred in law and in fact in holding that each party should bear its own cost despite the fact that the respondent succeeded in defending the claim. 18. That the Learned Magistrate erred in law and fat in failing to consider and analyse the Respondent's written submissions on record. 19. That the Learned Magistrate erred in law and in fact in having found that there was a certificate of resolved dispute, he proceeded to entertain the claim and failed to dismiss the same as required by law. 20. That the Learned Magistrate erred in law and in fact in failing to consider the applicable law and therefore came up with a wrong conclusion 21. The Respondent prayed for the following reliefs: 22. That this Appeal be allowed 23. That this Honorable Court be pleased to set aside the judgment of the trial court 24. That this Honorable Court be pleased to dismiss the Claimant's claim with costs to the Respondent 25. cost of this appeal **Analysis** 1. This being a first appeal, this Court has the duty to analyze and re-examine the evidence adduced in the lower Court and reach its own conclusion but to bear in mind that it neither saw nor heard the witnesses testify and make due allowance for that as was held in the case of [***Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates***](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/judgment/keca/2013/208)***[2013] eKLR***. 2. Vide his Statement of Claim dated **21st January 2021,** the Claimant (now the Appellant) averred that at all material times to the suit, he was employed by the Respondent as a driver from 24th May, 1993 at a monthly salary of Kshs. 14,000. That due to his hard work the salary was increased gradually to Kshs. 30,000 as at the time of his dismissal. 3. It was further the Appellants averment that in the course of his employment spanning over 26 years he worked diligently and always did his work as per contract of service. 4. It was the Appellant’s case that while serving the Respondent he worked daily from 7.00 am to 6.00 pm including weekends and public holidays but was never compensated or paid overtime. 5. The Appellant further averred that he was underpaid between 1st May, 2017 and 31st October, 2017. 6. It was further the Appellant’s averment that during the course of his employment the Respondent was effecting deductions from his salary on account of NSSF and NHIF but failed to remit the said deductions to the relevant agencies. 7. The Appellant averred that on 11th October, 2017 he sought and was granted permission to be away from work from 11th to 16th October, 2017. That he further sought permission and was granted to be away from work from 27th October to 6th November, 2017. 8. The Appellant averred that on 9th November, 2017 he was summoned by the Respondent for disciplinary hearing to answer to allegations that were alien to him. That he availed himself for the disciplinary hearing where he was informed that his services were no longer needed by the Respondent. 9. The Appellant averred that he was never given explanation as to why the Respondent had opted for such drastic action of terminating his employment. 10. It was the Appellant’s averment that the Respondent’ actions constituted a major breach of contract and violation of the Kenyan law, International Labour Laws and Practices. 11. The Appellant therefore sought to be paid his terminal dues which he particularized as follows: - 12. One month’s salary in lieu of notice …... Ksh 30,000 13. Salary for the month of October ………… Ksh, 30,000 14. Gratuity pay for 24 years ……….….……. Ksh. 360,000 15. Leave for one year ………………….……….. Ksh. 21,000 16. Public Holiday …………………….…………. Ksh. 63,000 17. Overtime ………………………………....… Ksh. 232,268.4 18. Underpayment from May to October 2017 …Ksh. 9,400 19. 12 months compensation …………………. Ksh. 360,000 Total ………………………………………... Ksh.1,105,668.4 1. The Appellant sought the following reliefs: - 2. A declaration that the Respondent's termination of the Claimant's employment was unlawful unjustified and contrary to the law. 3. An Order that the Respondent compensates the Claimant for unlawful termination of employment as provided for by law. 4. The Respondent be ordered to pay the Claimant all allowances benefits and other legal dues incurring and or accruing due to unfair termination and unlawful dismissal as per paragraph 31 above. 5. General damages. 6. Interest on (a), (b), (c) (d) above. 7. The Respondent to pay costs of these proceedings 8. Any other relief as this honorable court may deem just and expedient to grant. 9. In response to the Statement of Claim, the Respondent filed a Memorandum of Response dated **1st September, 2020 in which it denied the averments in the Statement of Claim and averred that in the month of October, 2017 the Appellant absconded duty and declined to report back to work and thus exposed himself to summary dismissal by the Respondent.** 10. **The Respondent averred that after absconding duty the Appellant sought intervention of his trade union, the Kenya Union of Commercial Food and Allied Workers (KUCFAW) to deal with the issues facing him. That the union approached the Respondent with a view to resolving the difference between the Appellant, who was unwilling to go back to work, and the Respondent. That an agreement was reached with the Union and a resolution made to pay the Appellant terminal dues which was calculated, paid and the matter marked as settled and a certificate of resolved trade dispute signed.** 11. **The Respondent averred that a cheque No. 00518 for Kshs. 208,782.40 was made out for the Appellant in settlement.** 12. **The Respondent averred that the suit filed by the Appellant was unjustified, an abuse of court process, full of falsehoods and an attempt to improperly enrich himself.** 13. **The Respondent denied the allegations that it deducted and failed to remit NSSF and NHIF contributions from the Appellant’s salary, the allegations that the Appellant worked overtime without compensation and the allegations of underpayment of salary.** 14. **The Respondent further denied the allegations that the Appellant was not taken through any disciplinary committee and reiterated that all issues relating to the Appellant’s employment were resolved through his union.** **The Evidence adduced** 1. At trial, the Appellant testified as **PW1. He told the court that he used to work for the Respondent but was terminated. He** adopted his witness statement dated 21st January, 2020 **as his evidence in chief**. He also adopted and relied on the documents filed in court in support of his claim. 2. The Appellant testified that on 10th October, 2017 his child was injured in school and he sought permission from Kamal Armish Shah who gave him off duty for one day and he was away for only one day. He denied that he was absent without permission as alleged by the Respondent. The Appellant further testified that when he went to work he was served with the letter of termination. 3. Upon cross-examination, the Appellant stated that he used to drive all types of vehicles but over time he was assigned to be the personal driver of the director. He stated that he was served with a notice to show cause which he responded to, stating that he was given permission to be away by the very person who signed the notice to show cause letter. 4. He denied that he became stubborn as alleged by the Respondent. He further denied that he absented himself from duty without permission. 5. The Appellant admitted that he asked the union to follow up on his dues. He stated that he was informed of the figure agreed upon between the union and the Respondent but never saw the settlement cheque. 6. He stated the union did not say the termination was lawful. 7. For the Respondent Kamal Shah, DW1, testified that he was a director of the Respondent and the Appellant was employed as a driver of the Respondent. He adopted his statement recorded on 12th March, 2021 and documents filed on behalf of the Respondent as his evidence. He testified that the Appellant’s employment was terminated due to absenteeism. That he was not informed the Appellant had gone to see his sick child. 8. DW1 testified that when the Appellant resumed work he was reassigned to drive a pickup but refused. 9. He testified that the Appellant was dismissed. That a meeting was held at the Labour Office at which an agreement was reached to pay the Appellant Kshs. 208, 782 but the Appellant declined to pick the cheque. 10. He testified that the Appellant was a member of NSSF and is not entitled to gratuity. He testified that the Appellant did not work overtime and that he was not underpaid. 11. On cross examination DW1 testified that he was the one who employed the Appellant but could not recall the dates. He further testified that the Appellant was a personal driver and took children to school. 12. He testified that the Appellant absconded work on 11th to 16th October, 2017 but he did not have evidence to that effect. He stated that the Appellant admitted that he was absent in the letter to the union. 13. He denied giving permission to the Appellant for be away from 11th to 16th October, 2017. He testified that the Appellant did not appear for disciplinary hearing on 9th November, 2017 at 9.15 pm. He stated he did not have minutes of the meeting. 14. He stated he attended conciliation meeting before the Labour Officer with 2 representatives from the union and the settlement cheque was given to the union but was later returned because the Appellant rejected the settlement. **The Appeal** 1. The appeal was disposed of by way of written submissions. Both parties filed their submissions. The Appellant’s submissions are dated 20th April, 2026 while the 1st Respondent’s submissions are dated 15th June 2026. **Appellant’s submissions** 1. In his submissions, the Appellant identified the following issues for determination: 2. Whether the learned Magistrate properly evaluated and analysed the evidence on record; 3. Whether the learned Magistrate erred in law and fact in disregarding the Appellant’s documentary and oral evidence; 4. Whether the finding that the Appellant’s case lacked merit was supported by evidence; 5. Whether the trial court's award of Kshs. 208,782.42 was legally sustainable in light of its own findings; 6. Whether the claimant is entitled to Judgment as prayed for in the claim; 7. Whether the Respondent's Cross-Appeal has merit; 8. Costs of the Appeal. 9. On the first issue whether the trial court properly evaluated the evidence the Appellant submits that evidence was not considered holistically by the trial court. He submitted that in the impugned Judgment, the learned Magistrate expressly found that the Appellant’s evidence was “more persuasive” and was supported by “sound and cogent evidence including the letters that were written to the claimant before termination. He submitted that notwithstanding this clear finding, the learned Magistrate paradoxically proceeded to hold that the Appellant had failed to prove unlawful termination. That this conclusion was wholly inconsistent with the court’s own evaluation of the evidence and demonstrates a fundamental misapprehension of the facts. 10. In support of this assertion the Appellant relied on the decisions in **Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others [2019] eKLR; Walter Ogal Anuro v Teachers Service Commission [2013] eKLR; Anthony Francis Wareham t/a Wareham & 2 others v Kenya Post Office Savings Bank [2004] eKLR and Mwangi v Wambugu [1984] eKLR**. 11. On the second ground for determination whether the trial court misapprehended the evidence the Appellant submitted that the trial court failed to properly appreciate, analyze and weigh the documentary evidence placed before it thereby arriving at conclusions that were unsupported by the evidence and the law. It is submitted that section 74 of the Employment Act imposes an obligation on employers to keep and produce employment records, including records relating to an employee’s engagement, attendance, leave, disciplinary proceedings, and termination. That these records are the evidentiary basis upon which an employer is required to justify termination under section 43 and 45 of the Act. It is submitted that the Appellant produced a letter seeking permission to be away to attend to his sick child, which rebutted the Respondent’s evidence that he was absent without permission. It is further submitted that the Respondent failed to produce attendance records to substantiate the allegations that the Appellant was absent without permission. That there was further no records of a disciplinary hearing to justify compliance with section 41 of the Act on fair procedure. 12. On these assertions the Appellant relied on the decisions in **Nanyuki Water and Sewerage Co. Ltd v Benson Mwiti Ntiritu & another [2018] eKLR; Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Ltd [2014] eKLR** and **George Omondi v Jalaram Enterprises [2019] eKLR**. In all these cases the court held that where an employer fails to produce employment records the burden of proof shifts to the employer. 13. On the issue of erroneous finding regarding payment by cheque the Appellant submitted that the trial court erred in law and fact in accepting the Respondent’s assertion that the Appellant had been offered a cheque of Kshs. 208,782 and declined to collect it without proof as no evidence was adduced to prove that payment was ever tendered to the Appellant. Reliance was placed in the decisions in **Cooperative Bank of Kenya Ltd v Banking Insurance Finance Union (Kenya) [2017] eKLR; Abraham Gumba v Kenya Medical Supplies Authority [2014] eKLR** and **Hesbon Ngaruiya Waigi v Equitorial Commercial Bank Ltd [2013] eKLR**. In all these cases the courts held that it is the burden of the employer to prove payment of terminal dues with clear evidence of payment. 14. On failure to consider submissions it was submitted for the Appellant that submissions form an integral and indispensable part of a party’s case which enable the court to appreciate how the law applies to the facts of a party’s case and assist the court in arriving at a reasoned and lawful determination of the issues in dispute. That the trial court erred in failing to consider the Appellant’s submissions as the judgment does not refer to, summarize, or engage the Appellant’s arguments on the law, the evidence or the statutory provisions applicable, which omission demonstrates that the Appellant’s submissions were either ignored or not accorded due consideration. For emphasis the Appellant relied on the decisions in **Republic v Public Procurement Administrative Review Board & another Ex Parte Numerical Machining Complex Ltd [2017] eKLR, Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others, and Kenya Human Rights Commission v Attorney General & another [2018] eKLR**. 15. On the issue of internal inconsistencies and erroneous application of the law it was submitted for the Appellant that the trial court’s judgment is contradictory, legally unsound and incapable of standing in law as the Learned Magistrate made a categorical finding that the Appellant had failed to prove unlawful termination and was therefore not entitled to compensation or damages, and yet proceeded to grant substantive monetary award without setting out any clear legal or evidential basis for the same as the judgement does not identify the statutory provision, contractual term or evidentiary foundation upon which the award was made. It is submitted that it is settled law that a court cannot on the same set of facts, dismiss a claim for lack of proof and at the same time enter judgement in favour of the Claimant. The Appellant relied on the decisions in **Independent Electoral and Boundaries Commission v Stephen Mutinda Mule & 3 others [2014] eKLR, Kenya Ports Authority v Kuston (Kenya) Limited [2009] 2 EA 212 and CFC Stanbic Bank Ltd v Danson Mwashako Mwakuwona [2015] eKLR.** In these decisions the Court of Appeal dealt with inconsistencies in the judgments of the superior courts. 16. In response to the Cross Appeal, the Appellant submitted that the Respondent on the one hand seeks to uphold the findings of the trial court that the Appellant failed to prove unlawful termination while on the other hand it challenges the same judgment by seeking to set aside the award of Kshs. 208,782 and the award on costs. It submits that this amounts to approbating and reprobating, a position that is impermissible in law. The Appellant relies on the decisions in **John Gathongo t/a Gathongo & Company Advocates v Harriet Wanjiru Kimani [2012] eKLR, Serah Njeri Mwobi v John Kimani Njoroge [2013[ eKLR** and **Abdirahman Abdi v Safi Petroleum Products Ltd & 6 other [2011] eKLR**. In these decisions the Courts held that a litigant cannot blow hot and cold by affirming part of a decision while disowning another part as this offends the doctrine of consistency. Further that if the foundation of a decision is faulty then any orders flowing therefrom must equally fail. 17. The Appellant submitted that the cross appeal does not raise any independent or substantive issue capable of standing on its own and merely seeks to sanitize the errors of the trial court and shift the blame on the Appellant. **The Respondent’s submissions** 1. In its brief submissions, the Respondent submitted that the trial court identified the issues for determination to be whether the termination of the Appellant’s employment was lawful, whether the Appellant is entitled to be paid any monies by the Respondent and who pays the costs of the suit. 2. That the trial court then proceeded to make the following conclusions: That the Claimant has failed to prove that the termination of his employment was unlawful; That the Claimant is not entitled for payment of any compensation for damages as claimed; That the Claimant is entitled to terminal dues of Kshs. 208,782; That the Claimant may not have financial muscle to compensate his former employer and therefore I order each party pays their own costs. 3. It is the submission of the Respondent that the Appellant’s submissions are general and do not point out precisely how the trial court erred in law and fact by not considering the evidence on record. 4. The Respondent submits that the trial magistrate after hearing testimony of the Appellant’s and Respondent’s witnesses first hand, came to a proper conclusion that the Appellant had not proved his claim to the required standard hence dismissed the claim. 5. That having come to such conclusion the trial magistrate was wrong in denying the Respondent costs of the suit. 6. It is further the Respondent’s submission that the Appellant having properly been compensated, should not have filed the instant appeal but should have collected his cheque. That if he was not satisfied he should have set aside the certificate freely and voluntarily signed before the conciliator which expressly resolved the issues in dispute. It is submitted that the Appellant was estopped from relitigating the same issues in the absence of grounds which would entail setting aside of a contract. 7. It is submitted that the Appellant does not deny appointing the trade union to settle the dispute and does not give explanation why he sought court’s intervention. That the claim is an abuse of court process as the claim has been settled. The Respondent relied on the decision in **Fatuma Hassan v Posta Stadia Management Board Cause 193 of 2015 Employment and Labour Relations Court at Nairobi**. It prays that the appeal be dismissed with costs and the cross appeal be allowed with costs in both the appeal and in the lower court. **Determination** 1. Having carefully considered the Record of Appeal, the rival submissions on the appeal and the applicable law, the issues that arise for determination are: - 2. **Whether the termination of the Appellant’s employment was fair both substantively and procedurally,** 3. **Whether the Appellant is entitled to the prayers in his Statement of Claim,** 4. **Whether the learned trial magistrate erred in dismissing the Appellant’s claim against the Respondent,** 5. **Whether the award of Kshs. 208, 282.40 by the trial court after dismissing the claim was justified,** 6. **What orders should issue in both the appeal and the cross-appeal.** ***Whether the termination of the Appellant’s employment was fair both substantively and procedurally*** 1. The requirements of fair termination are provided in section 41, 43 and 45 of the Employment Act. Under section 41 an employer is under obligation to give an employee a hearing in the manner provided therein while under section 43 the employer must prove the grounds for termination. Section 45 prohibits the unfair termination of an employee and defines fair termination at section 45(2) to mean- (a) that the reason for the termination is valid; (b) that the reason for the termination is a fair reason— (i) related to the employee’s conduct, capacity or compatibility; or (ii) based on the operational requirements of the employer; and (c) that the employment was terminated in accordance with fair procedure. 1. In the instant case the Respondent’s reason for terminating the Appellant’s employment according to the letter of termination is that he absented himself from work from 27th October, 2017 to 6th November, 2017. The letter of termination is reproduced below: ***AMRITLAL S. SHAH WHOLESALERS LIIMITED*** *9th November, 2017* *ABRAHAM RONO.* *P.O. Box 18* *BURNT FOREST* *Dear ABRAHAM,* ***RE:TERMINATION OF SERVICES.*** *This letter is formally served to you on this 09th Day of November 2017 to inform you that your position with AMRITLAL S.SHAH WHOLESALERS LTD has been terminated.* *Your services as a DRIVER are hereby terminated on the following grounds* *ABSENTEESM ABSENT FROM WORK FOR MORE THAN 11 (ELEVEN) CONSECUTIVE DAYS WITHOUT PERMISION.* *Abraham, From 27/10/2017 to 06/11/2017 you failed to report to work without official notification, and thereafter authorization from the office. In addition you were absent from duties from 11th October to 16th October 2017. In view of the above, you failed to observe the rules relating to absenteeism thereby contravening our company's code of conduct section 1(3)and the employment act section 44 part 4 (a). We regret to inform you that your services are hereby terminated.* *You are therefore required to return any company property you have in your possession and clear with your department to enable us prepare your final dues if any. Should you have any questions about your termination, please contact the undersigned.* *Name: …………………………….* *ID NO:…………………………….* *Employment no:……………….* *Date:……………………………* *Signature:……………………* *Signed* *Kamal Amritlal Shah* 1. The Appellant denied that he was absent without permission and stated that he got permission from Kamal Armish Shah on 10th October, 2017 to go and see his child who was injured at school for one day only. He testified that on 6th November, he was at work. 2. The Respondent issued a notice to show cause to the Appellant dated 18th October, 2017 which the Appellant responded to by his letter dated 23rd October, 2017. The notice to show cause and the response are reproduced below: ***AMRITLAL S. SHAH WHOLESALERS LIMITED*** *18th October 2017* *ABRAHAM RONOH* *ELDORET* ***RE: ABSENTEEISM FROM WORK AND GROSS MISCONDUCT*** *We the management of Amritlal S. Shah would like you to show cause why you should not be summarily dismissed due to* *Being absent from duty from the 12th of October 2017 to 14th of October 2017.* *On the 16th of October 2017 when you presented yourself and were allocated duties, you declined to perform them and left your place of work.* *You again absented from work on the 17th of October 2017.* *We await your reply* *Signed* *Kamal Amritlal Shah* *Director* *Cc: County Labour Officer* 1. The Appellant responded by his letter dated 23rd October, 2023 as follows: *ABRAHAM RONO,* *P.O BOX 18,* *BURNT FOREST.* *23/10/2017* *THE MANAGING DIRECTOR,* *AMRITLAL'S SHAH W/H LTD* *P O BOX 846* *ELDORET.* *Dear sir,* ***REFERENCE: SHOW CAUSE LETTER DATED 18.10.2017*** *The above show cause letter states that on 12/10/2017, I was not on duty to 14.10.2017. I clearly stated that I went to see my child who was unwell and then I reported back on 16/10/2017 for allocation you didn’t assign me until evening time. Again on 17/10/2017 you told me that you want to change me to the pickup but you didn't give me the keys. I waited until evening time. Lastly you told me to report back on 23/10/2017 that is when you served me with the show cause letter. So I don't see the reason of dismissing me because I was here at the premise all those days unless those days that I went to see my child and you were aware. Furthermore I have worked with you many years in harmony until current and I am ready to be assigned.* *Thanks* *CC:K.U.C.F.A.W* *P O BOX 46818* *NAIROBI* *YOURS FAITHFULLY* *Signed* *ABRAHAM RONOH* 1. On 6th November, 2017 the Appellant was served with a letter notifying him to attend a disciplinary hearing scheduled for 9th November, 2017. According to the Appellant, when he went for the disciplinary hearing he was instead served with the letter of termination of his employment dated 9th November, 2017. According to the Appellant, there was no disciplinary hearing. 2. In the letter of termination no mention is made of a disciplinary hearing. There is further no mention of a disciplinary hearing either in the witness statement of Kamal Amritlal Shah or in the Memorandum of Response. What is stated in the Memorandum of Response at paragraph 4 is that: “The Respondent further reiterates that the Claimant in the month of October, 2017 absconded duty and declined to return to employment and in that case the Respondent has a right to summary dismissal him in the circumstances.” (sic) 3. In the witness statement of Kamal Amritlal Shah he states: **8. That without leave or justification he absented himself from the 11th of October 2017 to the 16th of October 2017 and when asked to show cause he never responded or showed any remorse.** **9. That despite the earlier absenteeism, the Claimant once again defiantly absented himself from work from the 27th of October 2017 to the 6th of November 2017.** **10. That this is when it became apparent to the Respondent that the Claimant was no longer interested in working and was showing disrespect to the Directors and other persons with authority over him.** **11. That it was then decided that since the Claimant was not ready to show cause or apologize for his conduct, section 44(4)(a) of the Employment Act empowers the Respondent to summarily dismiss the Claimant if he conducts himself as he did and by virtue of the said section the Claimant was summarily dismissed.** **12. That upon being summarily dismissed the Claimant sought the assistance of his trade union (Kenya Union of Commercial Food and Allied Workers).** 1. The court further notes the decision to dismiss the Appellant was made earlier as reflected in the letter dated 16th October, 2017 addressed to the County Labour Officer as reproduced below: ***AMRITLAL S. SHAH WHOLESALERS LIMITED*** *16th October 2017* *The County Labour Officer* *P.O. Box 110* *ELD0RET* ***ABRAHAM RONOH*** *The above mentioned person is employed by us as a driver.* *He was absent from duty without permission from 11th October 2017 and reported on duty on the 16th October 2017.* *On the 16th of October he was allocate some duties but he refuse to perform them.* *In view of the above the management has decided to Summarily dismiss him.* *We seek further guidance from your office.* *Yours faithfully* *Signed* *Kamal Amritlal Shah* *Director* 1. Section 47(5) provides as follows in respect of burden of proof in employment matters: *(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.* 1. From the foregoing I find that the Respondent failed to meet its burden of proof as it failed to prove fair procedure or proof of valid reason for the termination of the Appellant’s employment. The termination was therefore unfair in terms of sections 41, 43 and 45(1) and (2) of the Employment Act. ***Whether the learned trial magistrate erred in dismissing the Appellant’s claim against the Respondent*** 1. Having found that the termination of the Appellant’s employment was unfair, l find that the trial magistrate erred in finding that the Appellant failed to prove that the termination of his employment was unfair and in dismissing the claim. ***Whether the Appellant is entitled to the prayers in his Statement of Claim*** 1. **The Appellant sought the following remedies in his Statement of Claim:** 2. ***One month’s salary in lieu of notice*** **Having found the termination unfair the Appellant is entitled to the prayer. The Appellant is accordingly awarded the same in the sum of Kshs. 30,000** 1. ***Salary for the month of October, 2017*** **No evidence was adduced by the Respondent to prove that the Appellant was paid salary for October, 2017. The Appellant is accordingly awarded the same in the sum of Kshs. 30,000.** 1. ***Gratuity pay for 24 years*** **The Appellant having been a member of NSSF is not entitled to gratuity as he did not adduce evidence that his terms of employment provided for the same. This prayer is declined.** 1. ***Leave for one year*** **The Appellant did not adduce any leave records or evidence that the Appellant had taken his leave. The prayer is awarded but only for 21 days leave in the sum of Kshs. 24,231.** 1. ***Public holidays*** **No evidence was adduced to prove this prayer. The same is declined for want of proof.** 1. ***Overtime*** **The Appellant testified that as personal driver for the Respondent’s managing director he often worked from 2 am to 6 pm. DW1 admitted that the Appellant was a personal driver and used to drop kids to school and also drop family members but denied that he worked overtime.** **This prayer is however declined as the Appellant filed suit more than 12 months after the termination of his employment and the Claim is thus statute barred under section 89 (formerly section 90) of the Act which requires that claims for continuing injuries be brought to court within 12 months of cessation thereof.** 1. ***Underpayments*** **The Appellant prayed for underpayments from May to October, 2017 at Kshs. 9400. No breakdown was given as to how the amount was arrived at. I have checked the minimum wages order applicable for the relevant period for drivers of cars and small vans as at May 2017 and find that the Appellant was not underpaid. The prayer is declined.** 1. ***Compensation*** **The Appellant worked for the Respondent for more than 20 years. He had a clean record for the period he worked with the Respondent with the only disciplinary issues being those that led to the termination of his employment. Taking in to account all the circumstances of this case including the relevant factors under section 49(4) of the Act, it is my considered opinion that compensation equivalent to 10 months salary is reasonable. I accordingly award him the same being (30000x10) Kshs. 300,000.** ***What orders should issue in both the appeal and the cross-appeal*** 1. **On the prayers in the Cross Appeal, the court having found the termination of the Appellant’s employment unfair, the premises upon which the prayers in the cross appeal were anchored are no longer available and the prayers are thus no longer valid.** 2. **The foregoing notwithstanding, it is important that this court clarifies the position of an award by the Labour Officer under conciliation. Section 68 of the Labour Relations Act provides:** *Dispute resolved after conciliation.* *68.(1) If a trade dispute is settled in conciliation the terms of the agreement shall be―* *(a) recorded in writing; and* *(b) signed by the parties and the conciliator.* *(2) A signed copy of the agreement shall be lodged with the Minister as soon as it is practicable.* 1. **The disputes envisaged under this section are those reported under section 62 of the Labour Relations Act.** 2. **No evidence was adduced that the agreement reached with the union was reported to the Cabinet Secretary and processed as provided in** PART VIII of the Act on Dispute Resolution. The Appellant having not accepted the agreement and having not received the settlement, he was not barred from approaching the court as he did. The Cross Appeal is therefore without merit and is accordingly dismissed. ***Whether the award of Kshs. 208, 282.40 by the trial court after dismissing the claim was justified*** 1. **The award of Kshs. 208,282.40 was justified in the circumstances in which it was awarded by the trial court, the court having found the agreement reached before the County Labour Officer to have been binding on the parties thereto. However, in light of the findings of this court, the award is no longer applicable and has been set aside together with the rest of the judgement of the trial court.** 2. In conclusion,the appeal succeeds while the cross appeal fails. Accordingly, the Court makes the following orders: 3. The appeal is hereby allowed. 4. The judgment of the trial court delivered on 28th September, 2023 in **Eldoret CMELRC No. 8 of 2020** is set aside. 5. A declaration is hereby issued that the Appellant’s services were unlawfully and unfairly terminated on 9th November, 2017. 6. The Appellant is awarded compensation for unfair termination equivalent to ten (10) months' salary being **Kshs. 300,000**. 7. The Appellant is awarded one (1) month's salary in lieu of notice being **Kshs.30,000**. 8. The Appellant is awarded salary for October, 2017 in the sum of **Kshs.30,000.** 9. The Appellant is awarded pay in lieu of annual leave earned but not taken of **Kshs. 24,231.** 10. The prayers for gratuity, public holidays, overtime and underpayments are declined. 11. The total award shall attract interest at court rates from the date of the judgment in the Trial Court until payment in full. 12. The Appellant shall have the costs of the suit before the trial court and the costs of this appeal. 13. The cross appeal is dismissed with costs. 14. Orders accordingly. **DATED, DELIVERED AND SIGNED** **ON THIS 3RD DAY OF JULY 2026.** **M. ONYANGO** **JUDGE**