https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1454

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT** **AT MOMBASA** **APPEAL E036 OF 2025** **AMINA AKAR MOHAMED ……………………..…………APPELLANT** **VERSUS** **JOSEPH KAZUNGU KAHINDI.……………….………RESPONDENT** **JUDGMENT** 1. Contending that at all material times he was an employee of the Appellant and that his employment was terminated unfairly, the Respondent sued the Appellant in the above-stated suit, seeking the following reliefs; a) A declaration that the dismissal of the Claimant from employment was unfair, unjust and unconstitutional. b) An order directing the Respondent to pay the Claimant terminal dues amounting to Ksh. 417,333.31, as particularised in the memorandum of claim. c) Costs of the suit and interest. 1. The Appellant challenged the Respondent’s claim via a Memorandum of defence. The Appellant denied the Respondent’s cause of action and entitlement to the reliefs he had sought. 2. After hearing the parties’ respective cases and analysing their evidence, the learned trial Magistrate entered Judgment for the Respondent. The Judgment is the subject matter of this appeal. 3. I find it pertinent to state from the onset that the Appellant deliberately or otherwise did not include the typed proceedings of the lower court and decree in the record of appeal. As such, what is contained hereunder as the parties’ respective cases is derived from their respective witness statements and the summary by the learned trial Magistrate. **Respondent’s case in the trial court** 1. The Respondent’s case before the trial court was that he was employed in 2002 by the Appellant’s late husband as a domestic worker, earning a monthly salary of KShs. 1,500, which was increased to KShs. 10,000 in 2017 due to his exemplary performance. He stated that he was paid in cash and was never issued with employment records or salary documentation. 2. The Respondent further stated that when the Appellant’s husband fell critically ill in 2019, his responsibilities extended to include caring for him by washing and cleaning him, alongside his regular duties of maintaining the house and stairs. Additionally, he collected rent from tenants on behalf of the family and remitted it to the Appellant’s husband; following his demise in November 2019, the remittances were made to the Appellant. 3. It was his case that after the death of the Appellant’s husband, he continued to serve under the Appellant on the same terms until July 2021, when the Appellant asked him to produce his identity card before receiving his salary. The Respondent explained that his identity card had been taken to his rural home for land registration purposes and requested that he be paid first so that he could travel to retrieve it. He alleged that the Appellant became displeased with the request and, on 7 July 2021, verbally terminated his employment by instructing him not to report to work the following day. 4. The Respondent contended that the termination was executed without just cause, prior notice, hearing, or compliance with due process. Additionally, he asserted that following his dismissal, he was subjected to threats and intimidation, including purported threats of arrest by individuals claiming to be police officers, which led him to file a complaint at Majengo Police Post under OB No. 10/26/7/2021. 5. The Respondent contended that the dismissal was unlawful, unfair, and contrary to the Employment Act and the Constitution, particularly the rights to fair labour practices and fair administrative action. He further stated that throughout his employment, he never took annual leave and worked every day, including weekends. Consequently, he sought various remedies, including one month’s salary in lieu of notice, salary arrears, leave pay for 19 years, compensation for unfair termination, service pay, a certificate of service, costs, and any other appropriate relief. 6. The Appellant’s witness, Hamida Banoo Akbar Mohamed, stated in her witness statement that she was a co-wife of the late Akbar Mohamed Haji Ali, whom she married in 1989, and that she was also a co-administrator of his estate pursuant to a court appointment made on 17 February 2021. 7. Her evidence was that the Respondent was employed by the deceased in 2002 as a domestic worker, earning a monthly salary of Kshs. 1,500, which was increased to Kshs. 10,000 in 2017. She further testified that the Respondent’s salary was always paid in cash by the deceased. 8. The witness stated that in 2019, when the deceased became critically ill and immobile, the Respondent’s duties expanded to include attending to and caring for him, in addition to his regular cleaning duties. She further testified that after the deceased’s death in November 2019, the Respondent continued to collect rent from tenants and remit it to the Appellant, without objection from the family. 9. According to the witness, the Respondent remained in the Appellant’s employment after the deceased’s death and continued to receive a salary drawn from the rental income. She stated that the Respondent served diligently until July 2021, when the Appellant verbally dismissed him and instructed him not to report to work the following day. 10. The witness further stated that the Respondent subsequently informed her that the dispute originated after the Appellant demanded his identity card prior to releasing his salary. The Respondent reportedly explained that his identity card had been taken to his rural home for land registration purposes and requested to be paid first so that he could retrieve it. The witness affirmed that it was subsequent to this incident that the Appellant terminated the Respondent’s employment. **Appellant’s case in the trial court** 1. The Appellant’s case was that the Respondent was employed in December 2019 as a casual domestic worker, working about 3–4 hours per day. According to the Appellant, the Respondent earned Kshs. 6,000 per month as a casual labourer, plus an additional Kshs. 4,000 for cleaning the main stairs and compound. 2. The Appellant stated that in June 2021, when the Respondent was due to receive his wages, he refused and/or failed to sign the petty cash voucher and to produce his identification card, as required before payment could be processed. The Appellant contended that following this incident, the Respondent abandoned his employment and lodged a complaint with the Labour Officer, to which the Appellant responded. 3. It was the Appellant’s position that the Respondent was entitled only to salary for June 2021, subject to a deduction of Kshs. 5,000 allegedly advanced to him as a loan, together with seven days’ wages for July 2021. 4. The Appellant further accused the Respondent of interfering in family matters by allegedly giving false testimony in court at her expense, conduct which she considered to amount to gross misconduct warranting dismissal, but the Respondent absconded from duty before she would act against him. 5. Consequently, the Appellant denied that the Respondent’s employment had been terminated unfairly and maintained that the Respondent was not entitled to notice pay or compensation for unfair termination. **Judgment of the lower court** 1. The trial court found that the Respondent had proved his claim of unlawful and unfair termination against the Appellant. The court noted that the parties did not dispute the existence of an employment relationship and found that the Respondent had been employed since 2002 as a caregiver and janitor, earning a monthly salary that had risen from Kshs. 1,500 to Kshs. 10,000 at the time of termination. 2. The court dismissed the Appellant’s claim that the Respondent was a casual labourer or piece-rate worker. It found that the Appellant failed to produce employment records, pay schedules, or other evidence to substantiate this claim, despite the statutory obligation on employers to maintain such records. Additionally, the court noted that the Respondent had been granted leave, which was inconsistent with casual employment. 3. Regarding the matter of termination, the court determined that the Appellant did not establish desertion of duty. Although the Appellant contended that the Respondent absconded after refusing to present his identity card, the court observed that no evidence, such as correspondence, call logs, or messages, was presented to substantiate efforts made to contact the Respondent or to compel him to resume work. 4. The trial court consequently awarded the Respondent one month’s salary in lieu of notice, holding that the Appellant had failed to comply with section 35(1)(c) of the Employment Act. 5. With regard to leave pay, the court held that the Appellant failed to produce leave records as required by law and awarded the Respondent unpaid leave calculated at Kshs. 133,000 for the 19 years worked. 6. The court dismissed the claim for salary arrears after noting that the Appellant had produced a payment voucher. 7. Regarding service pay, the court found that the Appellant had failed to demonstrate that the Respondent was registered with NSSF or any other social security scheme. He was therefore awarded service pay of Kshs. 95,000, equivalent to 15 days’ pay for each completed year of service. 8. The court further awarded the Respondent the maximum compensation of 12 months’ salary for unfair termination, considering the long period of service of over 19 years. 9. Resultantly, the Court awarded the Respondent one month’s salary in lieu of notice of KShs. 10,000, unpaid leave of KShs. 133,000, compensation for unfair termination of KShs. 120,000, and service pay of KShs. 95,000, bringing the total award to KShs. 358,000, together with costs and interest. **Appeal** 1. Aggrieved by the decision, the Appellant filed this appeal on the following grounds; 1. The trial court erred in law and in fact by failing to find that the Respondent's Claim lay against the estate of Akbar Mohamed Haji Ali (deceased) and not the Appellant. 2. The trial court erred in law and fact by failing to find that the Appellant could not issue the Respondent with any notice since he was an employee of the estate of Akbar Mohammed Haji Ali (deceased). 3. The trial court erred in law and in fact by rendering a judgment that was not supported by the pleadings and evidence on record. **Appellant’s submission** 1. The Appellant submitted that the trial court erred in finding her personally liable, rather than holding that the claim lay against the estate of the deceased employer, Akbar Mohamed Haji Ali. It was argued that the Respondent’s own evidence showed that he had originally been employed by the deceased and, after the deceased’s death, continued to serve the estate by collecting rent from tenants and remitting it. The Appellant contended that at no point did she become the Respondent’s employer in her personal capacity. 2. On the issue of legal capacity, the Appellant relied on sections 45(1) and 82(a) of the Law of Succession Act, arguing that obligations arising from the deceased’s estate could be enforced only against the estate through duly appointed legal representatives. The Appellant submitted that, because she had been sued in her personal capacity rather than as the estate’s legal representative, the suit was fatally defective and ought to have been dismissed. 3. The Appellant also argued that the trial court’s judgment was unsupported by the pleadings and evidence on record. 4. Ultimately, the Appellant urged this Court to find that the Respondent’s claim before the trial court was incompetent, to set aside the trial court’s judgment, to dismiss the claim, and to award the Appellant costs of both the appeal and the proceedings before the lower court. **Respondent’s submissions** 1. The Respondent argued that the Appellant’s allegations that he had absconded from duty and owed KShs. 5,000 in loans were unsupported by evidence. It was also submitted that the Appellant failed to testify before the trial court, thereby leaving the Respondent’s evidence largely unchallenged. 2. On the issue of whether an employer-employee relationship existed between the parties, the Respondent argued that after the death of the Appellant’s husband in 2019, he continued serving the family at their residence and continued receiving a salary from the Appellant until his dismissal in July 2021. Thus, for purposes of the Employment Act, the Appellant was his employer. To support this submission, reliance was placed on Lucy **Nyandia Mwangi v Mathenge and Muchemi Advocates [2013] eKLR** and **Ayanga v Shah [2024] KEELRC 1620 (KLR).** 3. Regarding unfair termination, the Respondent submitted that his dismissal was both substantively and procedurally unfair, as no valid reason was given and he was not accorded a hearing as required under section 41 of the Employment Act. He relied on **Mary Chemweno Kiptui v Kenya Pipeline Company Limited (Cause 435 of 2013) [2014] eKLR,** to buttress this submission. 4. The learned trial Magistrate did not err in finding that the Appellant summarily dismissed the Respondent from employment and that she did not do it with justice and equity as required under Section 45[7] of the Employment Act. 5. Regarding remedies, the Respondent submitted that the trial court had properly exercised its discretion under section 49(1)(c) of the Employment Act in awarding compensation and other reliefs. He argued that the Appellant has failed to show any basis for this court to interfere with the trial Court's findings and awards. Consequently, the Respondent urged the court to dismiss the appeal with costs. **Analysis and determination** 1. Issues for Determination 2. Whether the appeal is competent in the absence of the lower court proceedings and decree in the record of appeal. 3. Whether the trial court erred in finding that an employer-employee relationship existed between the Appellant and the Respondent. 4. Whether the trial court erred in finding that the Respondent’s termination was unfair and unlawful. 5. Whether the Appellant has established grounds to warrant interference with the awards made by the trial court. **Analysis and Determination** **Whether the appeal is competent in the absence of the lower court proceedings and decree in the record of appeal** 1. The record of appeal before this Court does not contain the typed proceedings of the lower court or decree appealed against. This omission is fatal. As a first appellate court, this Court is under a duty to re-evaluate, re-analyse, and reconsider the evidence and proceedings before the trial court, and thereafter arrive at its own independent conclusions. See **Selle v Associated Motor Boat Co. Ltd & Others [1968] EA 123**. In the absence of typed proceedings, the Court is deprived of the very material upon which that appellate mandate is exercised. Equally, without the decree appealed from, the court cannot ascertain with precision the decision being challenged. 2. An appeal is determined on the basis of the record placed before the appellate court. Where essential documents are omitted, the appeal becomes incompetent, as the Court cannot properly interrogate the legality, propriety or correctness of the impugned decision. The omission goes to the root of the appeal and is not a mere procedural technicality that can be cured by citing Article 159 of the Constitution. This Court has not lost sight of the fact that one of the grounds on which the trial Magistrate’s decision is assailed is that his judgment was not supported by evidence. 3. The importance of extracting and filing the decree or order appealed against was emphasised in **Kyuma v Kyema [1988] KLR 185,** where the Court of Appeal reiterated that an appeal is a creature of statute and must comply strictly with the applicable procedural requirements. **“*As is well-known, an appeal is a creature of statute and any person desirous of exercising that right must bring himself squarely within the four corners of the substantive and procedural legislation*.”** 1. Further, **Order 42 Rule 13(4) of the Civil Procedure Rules** requires that before an appeal is heard, the court must be satisfied that the record contains, among other documents, the pleadings, notes of the trial magistrate made during the hearing, the transcript of official shorthand or electronic recording where available, affidavits, maps and other documents put in evidence before the magistrate, the judgment, order or decree appealed from, and where appropriate, the order granting leave to appeal. 2. Similarly, Order 42 Rule 2 of the Civil Procedure Rules provides that where no certified copy of the decree or order appealed against is filed with the memorandum of appeal, the appellant shall file one as soon as possible and, in any event, within such time as the court may order. 3. The record herein shows that before directions for the hearing of the Appeal herein, the Appellant confirmed to the court that a record of appeal had been filed, suggesting a complete one. The presentation was misleading. 4. The absence of proceedings is equally significant in cases where the grounds of appeal challenge the trial court’s factual findings and its evaluation of evidence, as demonstrated in the present case. The Appellant disputes the trial court’s findings on the existence of an employment relationship, unfair termination, and the evidentiary basis of the judgment. These issues cannot be adequately examined without the proceedings before the subordinate court. The Parties’ evidence, both under cross-examination and re-examination, would be critical to this Court's re-evaluation and re-analysis. 5. In his judgment, the learned trial Magistrate stated that the Appellant decided to rely and proceeded on the provisions of Rule 59 of the Employment and Labour Relations Court [ Procedure] Rules. The provision provides; *“The Court may, either by an agreement by all parties, or on its own motion, proceed to determine a suit before it on the basis of pleadings, affidavits, documents, filed and submissions by the parties”* 1. Considering the wording of this provision, a first appellant court would be keen to know how the decision to allow one party to engage and rely on the provisions of Rule 59 was arrived at. This is only possible where the proceedings of the lower court are incorporated in the record of appeal. 2. By reason of the foregoing premises, I find the Appellant’s appeal fatally defective. It is hereby dismissed. Each party to bear its own costs of the Appeal. 3. Having concluded as I have hereinabove, I find it unnecessary to go further to consider the other issues identified. 4. Orders accordingly. **Read, signed, and delivered this 28th Day of May 2026.** **OCHARO KEBIRA** **JUDGE.**