https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2047

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MOMBASA ELRC APPEAL NO. E047 OF 2024 AL-BARAKAT AGENCY LIMITED ......................**1ST APPELLANT** BASH HAULIERS LIMITED ............................... **2ND APPELLANT** **VERSUS** IBRAHIM MOHAMMED ABDI ................................. **RESPONDENT** *(Being an appeal from the whole judgment and decree of the Chief Magistrate's Court at Mombasa (Hon. L.K. Sindani, Principal Magistrate) delivered on 29th February 2024 in Mombasa CMELRC No. E341 of 2022, Ibrahim Mohammed Abdi v Al-Barakat Agency Limited & Bash Hauliers Limited)* JUDGMENT **A. INTRODUCTION** 1. This is an appeal from the whole judgment of the Chief Magistrate's Court at Mombasa (Hon. L.K. Sindani, Principal Magistrate) delivered on 29th February 2024 in Mombasa CMELRC No. E341 of 2022, in which the trial court found that the Respondent's employment had been unfairly and unlawfully terminated by the Appellants, and awarded him compensation for unfair termination, one month's salary in lieu of notice, pro-rata leave, salary arrears and a refund of monies expended on the Appellants' behalf at a weighbridge. 2. Aggrieved, the Appellants lodged a Memorandum of Appeal dated 26th March 2024, raising fifteen (15) grounds of appeal, and pray that the judgment be set aside in its entirety, that judgment be entered for the Appellants, and that the suit be remitted to the Chief Magistrate's Court for hearing before a magistrate other than the one who determined it, with costs. 3. The appeal was canvassed by way of written submissions filed by both parties, which this Court has carefully read and considered together with the entire Record of Appeal. **B. BACKGROUND** 1. The Respondent was employed by the 1st Appellant and seconded to work for the 2nd Appellant as a long-distance truck driver with effect from on or about 1st June 2021, earning a consolidated monthly wage of Kshs. 38,259.00, inclusive of house allowance. 2. On 22nd November 2021, while executing his duties driving motor vehicle registration number KCP 239P, the vehicle developed mechanical problems. Despite his objection, the Respondent avers that he was directed by the 2nd Appellant's management to proceed on a long-distance journey to Kampala, Uganda, with the vehicle in that condition. While in Uganda, fuel was stolen from the vehicle in circumstances he duly reported to the Kireka Police Station, Kampala (OB No. 03/26/11/2021). He was thereafter directed, over his continued objection as to the roadworthiness of the vehicle, to ferry an alternative consignment before returning to Kenya. On the return journey, the vehicle broke down at Maimahiu. Upon eventual arrival at the 2nd Appellant's Nairobi yard, the Respondent avers he was verbally informed that his employment had been terminated and was accused, without any hearing, of having stolen the fuel. 3. By a letter dated 8th December 2021 signed for and on behalf of the 1st Appellant, the Respondent's employment was terminated with immediate effect. The letter states, in material part: “We confirm that we have decided not to continue beyond your contract period, this is because your performance during the period has not met our expectations.” 4. The Respondent lodged a complaint with the Labour Office, Mombasa County, culminating in correspondence dated 14th December 2021 and 23rd December 2021 addressed to the 1st Appellant. His efforts at conciliation having failed, he filed a Memorandum of Claim on 17th June 2022 before the Chief Magistrate's Court at Mombasa, being ELRC Cause No. E341 of 2022, claiming a total of Kshs. 573,095.00 in respect of salary arrears, notice pay, refund of Kshs. 26,220.00 paid at the Mariakani Weighbridge on the Appellants' instructions, pro-rata leave, and compensation for unfair termination, together with costs and interest. **C. PROCEDURAL HISTORY BEFORE THE TRIAL COURT** 1. The Memorandum of Claim was served on 18th July 2022. On 4th August 2022, the Appellants (Respondents in the court below) entered a “Conditional Memorandum of Appearance (Under Protest)”, pleading that the Claimant lacked locus standi to institute the proceedings and that the claim as presented was fatally defective in light of Section 40 of the Employment Act. No substantive Response or Defence to the Memorandum of Claim was filed at that time. 2. The matter thereafter came up for mention and pre-trial on several occasions, including 29th September 2022 and 7th November 2022, on each of which the Appellants sought and were granted a further twenty-one (21) days within which to file a Response. No Response was filed within either period, or at all, before the hearing. 3. On 22nd February 2023, with no Response on record, the matter proceeded to hearing. The Claimant's case was heard and closed on that date, and the trial court gave directions for the filing of final submissions. 4. It was only thereafter, by a Notice of Motion dated 14th March 2023, supported by a Certificate of Urgency and the Supporting Affidavit of Daniel M. Ngonze, Advocate, that the Appellants sought, among other orders, to set aside the proceedings of 22nd February 2023 and for unconditional leave to file and serve a Defence and Counter-Claim out of time. Annexed to that application was a “Response to the Memorandum of Claim” asserting, for the first time, that the Respondent's employment had been on a fixed-term contract and had ended by effluxion of that term, together with a bundle of documents including an employment contract, salary and advance sheets for numerous employees, and a purported Discharge Agreement. 5. By a Ruling delivered on 30th November 2023, the trial court dismissed that Notice of Motion, holding, in part, that although the court would have wished to exercise its discretion in the Appellants' favour on the basis of the draft defence and in the interest of justice, “the Respondent did not file any draft defence for consideration by the court.” No appeal was preferred against that Ruling. 6. The suit proceeded to judgment on the material properly on record — namely, the Claimant's uncontroverted testimony and documentary exhibits — the Appellants having filed no Defence and called no evidence. On 29th February 2024, the trial court delivered judgment for the Claimant, finding that the procedure leading to the termination of his employment was unfair and that no valid reason for termination had been established, and awarded him compensation equivalent to four months' salary (Kshs. 140,000.00), one month's salary in lieu of notice (Kshs. 35,000.00), pro-rata leave (Kshs. 18,375.00), salary arrears for November and December 2021 (Kshs. 45,769.00), and a refund of Kshs. 26,220.00 expended at the Mariakani Weighbridge, together with costs and interest. **D. THE APPELLANTS' GROUNDS OF APPEAL** 1. By their Memorandum of Appeal dated 26th March 2024, the Appellants raise the following fifteen grounds, namely that the learned trial Magistrate erred in law, in fact and in principle by: 2. determining that the procedure adopted by the Appellants in terminating the Respondent's employment was unfair; 3. importing into the Respondent's evidence a reason for termination not expressly rendered by the Appellants; 4. determining that the Appellants did not sufficiently establish a cogent reason for terminating the Respondent's employment; 5. determining that the Appellants were fully liable for any claim arising from the Respondent's termination, even where the termination was said to be a result of due process occasioned by the Respondent's desertion/dereliction of duty; 6. determining that the Respondent is entitled to compensation for unfair or unlawful termination; 7. determining that the Respondent is entitled to payment in lieu of termination notice; 8. dismissing the Appellants' Defence in its entirety; 9. finding that the Respondent was not fairly terminated against overwhelming evidence to the contrary; 10. failing to properly consider the principles of termination through absconding as enshrined in the law of employment; 11. basing the judgment on an erroneous and/or faulty appreciation of the law; 12. descending into the arena of litigation and unprocedurally aiding the Respondent towards unjust enrichment from an unlawful absconding of duty; 13. failing to arbitrate impartially as between the Appellants and the Respondent; 14. failing to consider the Appellants' substantive submissions in respect of their defence to the Respondent's allegations; 15. summarily disallowing the Appellants' Notice of Motion Application dated 14th March 2023, thereby condemning the Appellants unheard; 16. determining that the Respondent's suit was undefeated, while wholly disregarding the Appellants' Preliminary Objection dated 4th August 2022. 17. The Appellants pray that the judgment be set aside in its entirety, that judgment be entered for the Appellants, that the suit be remitted for hearing before a different magistrate, and that costs of the appeal and of the suit be awarded to the Appellants. **E. THE RESPONDENT'S CASE** 1. The Respondent opposes the appeal in its entirety. On Grounds 1 and 4, it is contended that it is not in dispute that the Respondent was employed by the Appellants; that the procedure culminating in his termination was patently unprocedural — there was no notice to show cause, no disciplinary hearing was convened, and no minutes of any such hearing exist; that Sections 41 and 45 of the Employment Act were never complied with; and that the Appellants, having squandered no fewer than four opportunities to file a Response, cannot now be heard to complain of the consequences of their own default. 2. On Grounds 2, 3, 8, 9, 10, 11 and 12, the Respondent contends that the reason advanced by the Appellants for termination was never established in evidence, the Appellants having filed no Defence and led no evidence at trial; that the allegations of judicial partiality levelled at the trial Magistrate are baseless, unparticularized and improperly raised as a ground of appeal; and that the burden placed on an employer by Sections 43, 45 and 47(5) of the Employment Act to justify a termination was, in the circumstances, plainly not discharged. 3. On Grounds 5 and 6, it is submitted that once the trial court found the termination unfair, it was bound to exercise its discretion under Section 49 of the Employment Act, and that the award of four months' compensation was, if anything, lenient. 4. On Grounds 14 and 15, the Respondent contends that the Notice of Motion dated 14th March 2023 was heard on its merits and dismissed by a considered Ruling delivered on 30th November 2023, for the specific reason that no draft defence had been placed before the court to justify the exercise of discretion in the Appellants' favour; that no appeal was ever preferred against that Ruling; and that it cannot, more than a year later, be resurrected as a ground of appeal against the substantive judgment. As to the Preliminary Objection said to be dated 4th August 2022, it is contended that no such objection, distinct from the Conditional Memorandum of Appearance filed on that date, was ever placed before the trial court for determination, rendering Ground 15 misconceived. 5. The Respondent prays that the appeal be dismissed with costs. **F. ISSUES FOR DETERMINATION** 1. Having considered the Record of Appeal, the grounds of appeal, the grounds of opposition and the rival submissions, this Court identifies the following issues for determination: • What is the duty of this Court sitting as a first appellate court? • Whether Grounds 14 and 15 of the Memorandum of Appeal, being in substance a challenge to the Ruling of 30th November 2023 and to the treatment of the Conditional Memorandum of Appearance/Preliminary Objection of 4th August 2022, are properly before this Court in an appeal directed against the Judgment of 29th February 2024; • Whether, in any event, the trial court properly exercised its discretion in declining, after the Claimant had already testified and closed his case, to admit the Appellants' Response and to reopen the hearing; • Whether the documents annexed to the Notice of Motion dated 14th March 2023 can properly be treated as exhibits or evidence tendered at the trial; • Whether the Appellants established a valid, fair and substantively justified reason for the termination of the Respondent's employment, and whether the procedure culminating in that termination was fair; • Whether the reliefs granted by the trial court were justified; and • What order should issue as to costs. **G. ANALYSIS AND DETERMINATION** **(i) The duty of a first appellate court** 1. It is trite that this being a first appeal, this Court is not bound to accept the findings of fact made by the trial court, and is enjoined to re-consider and re-evaluate the evidence on record, and to draw its own conclusions, bearing always in mind that it neither saw nor heard the witnesses, and making due allowance in that regard. This Court is, however, confined to the evidence that was on record before the trial court, and it is not its role to introduce or speculate upon extraneous matters not canvassed by the parties (see Selle v Associated Motor Boat Company [1968] EA 123; Kenya Ports Authority v Kuston (Kenya) Limited [2009] 2 EA 212). It is against this settled standard that the grounds of appeal fall to be determined. **(ii) Grounds 14 and 15: the attack on the Ruling of 30th November 2023 and on the Preliminary Objection of 4th August 2022** 1. Ground 14 faults the trial court for “summarily disallowing” the Appellants' Notice of Motion Application dated 14th March 2023. That application sought, in substance, to set aside the ex parte proceedings of 22nd February 2023 and for unconditional leave to file a Defence out of time. It was heard on its merits, with the benefit of a Supporting Affidavit and a draft Response annexed thereto, and was dismissed by a considered Ruling delivered on 30th November 2023, for the specific and stated reason that no draft defence justifying the exercise of the court's discretion had, in truth, been placed before it. 2. A ruling determining an interlocutory application for leave to file a defence out of time is a distinct and independently appealable decision from the eventual judgment on the merits of the suit. If the Appellants were aggrieved by the Ruling of 30th November 2023, the law afforded them a plain and adequate remedy: to appeal against that Ruling, or to seek such extension of time as might be necessary to do so, within the time prescribed by law. They did neither. They allowed that Ruling to lie unchallenged for well over a year, only to attempt, through Ground 14 of this appeal, to resurrect a challenge to it under the guise of an appeal against the substantive Judgment of 29th February 2024 — a judgment delivered on an entirely distinct question, namely the merits of the claim, some three months after the Ruling in question. This is, in this Court's assessment, plainly an attempt to appeal the Ruling of 30th November 2023 out of time, through the back door of an appeal against the Judgment. This Court declines to entertain it in that guise. 3. Ground 15 fares no better. It rests on the premise that a “Preliminary Objection dated 4/08/2022” was left undetermined and disregarded by the trial court. The Record of Appeal, however, discloses no such distinct or freestanding Preliminary Objection filed or moved on that date; what was in fact filed on 4th August 2022 was a document styled “Conditional Memorandum of Appearance (Under Protest),” within which two objections — as to locus standi and as to the alleged fatal defectiveness of the claim under Section 40 of the Employment Act — were merely pleaded, but never thereafter canvassed, set down, argued or pursued to determination as a stand-alone preliminary point at any of the numerous mentions that followed between August 2022 and February 2023. A ground of appeal cannot properly rest on a trial court's failure to determine a matter that was never placed before it, in appropriate form, for determination. Ground 15 accordingly fails. **(iii) The overriding objective and the limits of the discretion to admit documents out of time** 1. Even taking Grounds 14 and 15 at their highest, and addressing their substance for completeness, this Court finds no basis upon which the trial court's exercise of discretion could be faulted. It is well established that, in furtherance of the overriding objective of just, expeditious, proportionate and affordable resolution of disputes, a court retains a residual discretion to permit the filing of pleadings or additional documents at any stage of a proceeding, including after the commencement of hearing, where it is just to do so and no irreparable prejudice is thereby occasioned to the opposing party. 2. That discretion is not, however, unconfined. Where, as here, leave is sought to introduce a Defence, and in effect to reopen a matter for hearing afresh, after the Claimant has already testified and closed his case, the threshold that must be met rises considerably. Such leave can only be granted upon a clear demonstration of very exceptional circumstances explaining the default and justifying the disturbance of a matter already concluded on the claimant's side. This is so because to hold otherwise would occasion real and unwarranted prejudice to a claimant who has already discharged his evidential burden, would incentivize dilatory conduct on the part of defendants, and would undermine the finality and integrity of the trial process. 3. No such exceptional circumstance was ever disclosed in this matter, whether before the trial court or before this Court. The explanation proffered — that the Appellants' “office file was inadvertently misplaced” — is, at its very highest, an internal administrative lapse attributable to the Appellants and/or their advocates. It falls well short of the standard of a very exceptional circumstance required to justify reopening a concluded hearing, particularly where the Appellants had already squandered no fewer than four separate opportunities — on 29th September 2022, on 7th November 2022, and thereafter — to file a Response, and had, by the time the matter proceeded to hearing on 22nd February 2023, remained on record for over six months without ever filing a substantive Defence. The trial court, in declining on 30th November 2023 to disturb the concluded hearing and to admit a Defence at that late stage, exercised a sound and unimpeachable discretion. This Court finds no basis to interfere with it. **(iv) The mischaracterization of documents annexed to the dismissed application as “exhibits” and “evidence”** 1. This Court must address, directly and in the plainest terms, a troubling feature of the manner in which this appeal has been argued. Throughout their written submissions, the Appellants repeatedly and insistently characterize the documents appearing at pages 20–61 and 65–110 of the Record of Appeal as “Exhibits” and as “lucid, rigid, clear, collaborated, uncontroverted and incontrovertible evidence,” from which, it is submitted, the learned trial Magistrate could and should have concluded that the Respondent's contract of employment was a fixed-term one that ended by effluxion of time. 2. It is common ground, and plain on the face of the Record of Appeal, that the Appellants never testified and called no witness at the trial. The Response to the Memorandum of Claim, the witness statements, and the bundle of documents — the employment contract, the salary sheets, and the purported Discharge Agreement — upon which the Appellants so heavily rely, were never produced, marked or admitted as exhibits in the course of any hearing before the trial court. They are, without more, documents annexed to the Supporting Affidavit of Counsel filed in support of the Notice of Motion dated 14th March 2023 — the very application seeking leave to file that Response out of time, which application was heard and dismissed by the trial court in its Ruling of 30th November 2023. It is, in the circumstances, deliberately misleading for Counsel for the Appellants to submit, as has been done, that these documents were exhibits tendered in evidence before the trial court, from which the learned Magistrate could have concluded that the contract of employment was a fixed-term one in nature. They were nothing of the sort: they were documents annexed to a supporting affidavit in respect of an application that was dismissed, and were never at any stage produced in evidence at the trial, the Respondents (Appellants herein) never having testified. 3. This Court considers it necessary to state, boldly and without equivocation, a principle that ought to have been self-evident to Counsel: documents annexed to an interlocutory application — whether a Notice of Motion, a supporting affidavit, or any similar process — do not, by that fact alone, become exhibits or evidence of a party for purposes of the substantive suit or the eventual judgment. They attain that status only if and when they are formally produced, marked and admitted as exhibits in the course of a hearing, tested against the ordinary rules of evidence, and made available to the opposing party to test by cross-examination. An affidavit sworn in support of an interlocutory application speaks only to the narrow question raised in that application; it is not, and cannot be treated as, a surrogate for viva voce testimony or documentary evidence tendered and proved at trial. To rule otherwise — to permit a party to smuggle into the record, through the back door of a dismissed interlocutory application, material that was never subjected to the crucible of trial — would do violence to elementary rules of evidence and procedural fairness, would deny the opposing party his right to a fair hearing under Article 50 of the Constitution, and would render nugatory a court's considered decision declining to admit such material as a Defence in the first place. A document that a court has declined to let in as a Defence cannot, by the same stroke, be treated as though it had been let in as evidence. 4. The Appellants cannot approbate and reprobate. They cannot accept the finality of the unappealed Ruling of 30th November 2023 dismissing their application for leave to file a defence, while simultaneously inviting this Court to treat the very documents that Ruling kept out of the record as though they had been fully ventilated and proved at trial. This submission is rejected in its entirety, and this Court records its disapproval of the manner in which it was advanced. **(v) The reason for termination** 1. The only reason for termination properly before the trial court, and before this Court, is that stated in the Appellants' own letter of termination dated 8th December 2021, which reads in material part: “We confirm that we have decided not to continue beyond your contract period, this is because your performance during the period has not met our expectations.” 2. That letter, being the Appellants' own contemporaneous statement of the reason for termination, makes no mention whatsoever of any fixed-term contract having lapsed by effluxion of time. Had such a contract genuinely existed and truly been the operative reason for the cessation of the Respondent's employment, nothing could have been easier, or more natural, than for the 1st Appellant to have said so in that very letter, which it drafted at its own convenience. It said no such thing. In this Court's view, there was none. The suggestion of a fixed-term contract ending by effluxion, first raised over fifteen months later in the Response annexed to the dismissed Notice of Motion of 14th March 2023, bears every hallmark of an afterthought conjured for the purposes of that application rather than a reason genuinely relied upon at the time of termination. An employer is bound by the reason given at the time of termination, and cannot thereafter resile from it in favour of another, more convenient one (see Mariam Kyalo v MFI Office Solutions Limited, Industrial Cause No. 1559 of 2013). 3. The reason actually given — poor performance — attracts a well-settled and exacting threshold, which was plainly not met here. In Jane Samba Mukala v Ol Tukai Lodge Limited [2013] eKLR, the Employment and Labour Relations Court held that an employer terminating an employee's services on account of poor performance must first demonstrate the existence of an objective performance management system — one under which the employee's targets and standards were made known to him, his performance periodically and fairly evaluated against those standards, his shortcomings brought to his attention, and a genuine and reasonable opportunity to improve accorded to him before resort is had to termination. This standard was reaffirmed by the Court of Appeal in National Bank of Kenya Limited v Anthony Njue John [2019] eKLR, which, citing Jane Samba Mukala with approval, held that “where poor performance is shown to be [the] reason for termination, the employer is placed at a high level of proof,” and must demonstrate that it “had put in place an employment policy or practice on how to measure good performance as against poor performance,” further holding that “before termination on the ground of poor performance, an employee must be called and [an] explanation on their poor performance shared where they would in essence be allowed to defend themselves or [be] given an opportunity to address their weaknesses.” 4. Nothing resembling this process was ever placed before the trial court, nor before this Court. There is no evidence of any performance appraisal system, any written targets, any prior warning, or any opportunity extended to the Respondent to improve before his services were terminated with immediate effect. On the contrary, the Respondent's uncontroverted testimony was that he was verbally informed of his termination immediately upon arrival at the 2nd Appellant's Nairobi yard, following a gruelling cross-border assignment during which fuel was stolen from the vehicle he was driving through no established fault of his own, and that he was, in the same breath and without any hearing, accused of having stolen the fuel himself. The threshold set in Jane Samba Mukala (supra), and restated in National Bank of Kenya v Anthony Njue John (supra), was not met. The trial court's determination that the Appellants did not establish a valid and fair reason for the Respondent's termination is, accordingly, correct and unassailable. Grounds 1, 2, 3, 4, 8, 9, 10 and 11 of the Memorandum of Appeal fail. **(vi) Procedural and substantive fairness** 1. Beyond substantive justification, an employer terminating an employee's services must observe the mandatory procedural safeguards codified at Section 41 of the Employment Act, 2007 — notification of the specific grounds upon which termination is contemplated, and a hearing at which the employee is entitled to be accompanied by a fellow employee or a shop-floor union representative of his choice, and to respond to the allegations levelled against him, before any decision to terminate is made. The Court of Appeal, in Kenfreight (E.A.) Limited v Benson K. Nguti [2016] eKLR — an authority relied upon by the Respondent — held that compliance with Sections 41 and 45 of the Employment Act is not a mere technicality but a substantive precondition to a fair dismissal, observing that had the employer in that case complied with the requirements of sections 41 and 45 of the Act, the resultant summary dismissal would have been a fair one; its failure to do so rendered it otherwise. 2. On the record here, it is not seriously in dispute — indeed it could not be, given that no Defence was ever properly on record — that no notice to show cause was issued to the Respondent, that no disciplinary hearing of any kind was convened, and that no minutes or record of any such hearing exist. No doubt, the dictates of procedural fairness were not adhered to. Applying Kenfreight (supra), this Court so finds. Ground 7, which complains that the trial court “dismissed the Appellants' Defence in its entirety,” proceeds from a false premise: there was, in truth, no Defence of the Appellants properly on record for the trial court to dismiss, none ever having been admitted. Ground 13, complaining that the trial court failed to consider the Appellants' “substantive submissions” in respect of their defence, fails for the identical reason — a party cannot fault a court for failing to consider a defence it never lodged. 3. Substantive fairness likewise required the Appellants, as employer, to bear and discharge the burden of establishing the reason for the Respondent's termination and its validity, pursuant to Sections 43 and 45 of the Employment Act, 2007. In Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR, Civil Appeal No. 301 of 2015, the Court of Appeal held that “[t]he employer must prove the reasons for terminating (section 43) – and prove that the grounds are justified (section 47(5))... A mandatory and elaborate process is then set up under section 41 requiring notification and hearing before termination.” That burden the Appellants, having filed no Defence and led no evidence at trial, plainly and manifestly failed to discharge. Grounds 5 and 6, attacking the trial court's findings that the Respondent was entitled to compensation for unfair termination and to payment in lieu of notice, accordingly also fail; these were the necessary and lawful consequence of the finding of unfair termination, which finding this Court has upheld. 4. Ground 12, alleging want of impartiality on the part of the learned trial Magistrate, is wholly unparticularized, is unsupported by any material on the record, and is, in this Court's view, an inappropriate and unfortunate ground to have been raised absent any evidential foundation whatsoever. It is rejected outright. **(vii) Section 40 of the Employment Act and the redundancy submissions** 1. This Court further observes, with some surprise, that the Appellants have made Section 40 of the Employment Act — the provision governing termination on account of redundancy — a subject matter of this appeal, and have submitted at considerable length on the doctrine of redundancy, fair selection criteria, the First-In-Last-Out/Last-In-First-Out methodologies, and the requisite consultations, relying on authorities such as Julie Topirian Njeru v Kenya Tourist Board, Industrial Cause No. 886 of 2010. 2. These submissions are, with respect, both surprising and irrelevant. Redundancy was never pleaded by either party at trial. It does not feature in the Memorandum of Claim, nor — even taking the disallowed Response at its highest — in the case the Appellants unsuccessfully sought to introduce, which spoke instead of termination by effluxion of a fixed-term contract, a wholly distinct concept from redundancy. Nowhere in the letter of termination of 8th December 2021 is redundancy mentioned or alluded to. This Court is unable to discern the relevance of these submissions to the appeal actually before it and declines to engage further with them. **(viii) The reliefs granted** 1. Finally, on the question of the reliefs granted, this Court notes that the reliefs awarded by the learned trial Magistrate — compensation for unfair termination, one month's salary in lieu of notice, pro-rata leave, salary arrears, and refund of the sum expended by the Respondent at the Mariakani Weighbridge on the Appellants' instructions — were, without exception, reliefs contingent upon and consequential to the finding that the Respondent's termination was unfair. Having upheld that finding, this Court finds no proper basis, and none was demonstrated to it, upon which the quantum of the award could be disturbed. The learned trial Magistrate only awarded reliefs that were dependent on the claim for unfair termination, and rightly so. The Appellants' submissions attacking the award, built as they are on the unproven premise that termination occurred by effluxion of a fixed-term contract, are off the mark and cannot stand. **H. DETERMINATION** 1. For the foregoing reasons, this Court finds that the Appellants have not demonstrated any error of law, fact or principle in the judgment of the trial court warranting interference by this Court. The appeal lacks merit in its entirety. 2. Accordingly, the following orders do issue: a) The appeal be and is hereby dismissed in its entirety. b) The Judgment and Decree of the Chief Magistrate's Court at Mombasa (Hon. L.K. Sindani, Principal Magistrate) in Mombasa CMELRC No. E341 of 2022, delivered on 29th February 2024, be and are hereby upheld in their entirety. c) Costs of this appeal are awarded to the Respondent. It is so ordered. Dated, signed and delivered virtually at Mombasa this 16th Day of July 2026 **OCHARO KEBIRA** **JUDGE**