https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2284

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **ELRC APPEAL NO. E157 OF 2023** *(Before D. K. N. Marete)* **ANGELLAH ALICE MULYUNGI…………………………………………APPELLANT** VERSUS **APRIL SUN TRADING LIMITED……………………………….………RESPONDENT** **JUDGMENT** This matter was originated by way of a Memorandum of Appeal dated 26th August, 2023. It is an appeal from a judgment delivered on 31st March, 2023 at the Chief Magistrate’s Court, Milimani Commercial Courts, in MCELRC No. E107 of 2021. The Memorandum of Appeal sets out the following grounds: 1. *THAT the learned trial magistrate erred in law and in fact in holding that the Appellant shot herself on the foot by allegedly absconding work.* 2. *THAT the learned trial magistrate erred in law and in fact in holding that the Appellant had avoided giving details why she did not report to the office.* 3. *THAT the learned trial magistrate erred in law and in fact in holding that the termination of the Appellant was self-inflicted.* 4. *THAT the learned trial magistrate erred in law and in fact in holding that the Appellant worked on a piece work basis.* 5. *THAT the learned trial magistrate erred in law and in fact in holding that the Appellant had not shown that any dues were owed her.* 6. *THAT the learned trial magistrate erred in law and in fact in failing to address the claim for a month's salary in lieu of notice and thereby failing to award the same.* 7. *THAT the learned trial magistrate erred in law and in fact in failing to address the award for service pay and thereby failing to award the same.* 8. *THAT the learned trial magistrate erred in law and in fact in failing to address the issue of unpaid house allowance and thereby failing to award the same.* 9. *THAT the learned trial magistrate erred in law and in fact in failing to address the issue of overtime and thereby failing to award the Appellant unpaid overtime pay despite his proving the same.* 10. *THAT the learned trial magistrate erred in law and in fact in failing to address the Claim for unpaid public holidays and thereby failing to award the same.* 11. *THAT the learned trial magistrate erred in law and in fact in failing to address the Claim for unpaid night shift allowance and thereby failing to award the same.* 12. *THAT the learned trial magistrate erred in law and in fact in failing to address the Claim for unpaid leave days and thereby failing to award the same.* 13. *THAT the learned trial magistrate erred in law and in fact in failing to address the Claim for 12 month's Compensation for wrongful termination and thereby failing to award the same.* 14. *THAT the learned trial magistrate erred in law and in fact in failing to consider the Appellant's testimony and submissions.* 15. *THAT the learned trial magistrate erred in law and in fact in failing to find that the duty to provide proper and true records lay on the Respondent who had not discharged the same.* 16. *THAT the learned trial magistrate erred in law and in fact in failing to apply the correct and proper principles of employment law and procedures.* *The Appellant prays thus:* * 1. *THAT the Judgment of the Milimani Commercial Chief Magistrate's Court written and delivered by Hon. Grace A. Omodho, PM (Ms.) delivered on 31st March, 2023 in* ***Milimani******Commercial******Chief Magistrate's Court Employment Cause No. E086 of 2021; Angellah Alice Mulyungi******V******April******Sun******Trading******Limited*** *against the Appellant in regard to unfair termination, the reliefs of a month's salary in lieu of notice, service pay, unpaid house allowance, unpaid overtime, unpaid public holidays, unpaid night shift allowance and 12 month's Compensation be set aside and a final determination be made.* 2. *THAT this appeal be allowed with costs to the Appellant.* The Appellant’s case, both at trial and on appeal, is that she was employed by the Respondent on 27th May, 2017 as a machine operator under a contract of service, at a salary of Kshs. 10,000.00 per month and that she worked continuously for the Respondent until her exit from employment on or about 22nd February, 2020. On or about 22nd February, 2020 she received a telephone call from her supervisor, one, Derrick Kyalo, informing her that she was no longer needed. No reason was given, no notice was issued, and no terminal dues were paid. On appeal, the Appellant submits that the trial magistrate erred in finding her to have been a piece-rate worker and that, having been employed under a contract of service, her termination without notice, reason or process was unlawful and unfair. The Respondent’s case, as contained in its Memorandum of Response, Counter-Claim and written submissions, is that the Appellant was never employed under a contract of service but was engaged as a piece-rate worker and that at no time did she work exclusively for the Respondent. The Respondent’s evidence, given through its witness, Derrick Kyalo, is that the Appellant absconded duty at the height of the Covid-19 pandemic in early 2020. The Respondent further denies owing any terminal dues and maintains that any relationship between the parties was that of an independent contractor, not an employment relationship within the meaning of the Employment Act, 2007. The Respondent presses its Counter claim for Kshs. 150,000.00 representing the cost of recruiting and training a replacement. The issues for determination are: * + 1. What employment relationship existed between the parties? 2. Whether the Appellant’s employment was unfairly and unlawfully terminated? 3. What reliefs, if any, is the Appellant entitled to? 4. Who bears the costs of this cause. In **Peters v Sunday Post Limited [1958] EA 424** and **Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123**, the duty of a first appellate court was set out thus: the appellate court is under an obligation to reconsider and re-evaluate the evidence on record, draw its own independent conclusions on issues of fact and law, and arrive at its own decision, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify and should therefore not interfere with credibility findings unless they are plainly wrong. This court accordingly re-evaluates the evidence on the record and arrives at its own independent conclusions. The 1st issue for determination is what employment relationship existed between the parties. It is common ground that the Appellant worked for the Respondent from 27th May, 2017 until her exit in or about February, 2020. What is in dispute is the nature of that engagement. The Respondent asserts piece-rate work while the Appellant asserts a contract of service. The critical starting point is Section 10(7) of the Employment Act, 2007, which provides that in any legal proceedings in which an employer fails to produce a written contract of employment in circumstances where one ought to have been issued, the burden of proving the terms of the contract rests on the employer. The Respondent did not, at any stage of these proceedings, produce a written contract, a muster roll, a wage register or any other document capable of establishing the piece-rate basis it asserts. The Respondent’s witness, Derrick Kyalo, testified only in general terms and could not produce any record showing that the Appellant was engaged on piece-rate terms. The same principle was applied on materially identical facts in **Mary Kitsao Ngowa & 37 Others v Krystalline Salt Limited [2014] eKLR** *(Cause 78 of 2014, ELRC Mombasa)*, where the court held that a respondent employer who admits to engaging workers but fails to produce employment records cannot rely on an alleged piece-rate arrangement to defeat the employees’ claims, and that in the absence of documentary proof the workers must be treated as having been employed under a contract of service. This court adopts that reasoning. The Respondent having failed to discharge the burden placed on it by Section 10(7), the Court finds that the Appellant was employed under a contract of service from 27th May 2017 until her exit in February 2020. Ground 1 and 2 of the appeal succeed. The 2nd issue for determination is whether the Appellant’s termination was unfair and unlawful. Having found that the Appellant was employed under a contract of service, the question is whether the Respondent has proved, as required of Section 43 of the Employment Act, 2007 that there was a valid and fair reason for her termination, and whether fair procedure under Section 41 was observed. The law on desertion of duty is well settled. In **Ronald Nyambu Daudi v Tornado Carriers Limited [2019] eKLR** where this court observed thus: “Desert ion of duty is a grave administrative offence, which if proved, would render an employee liable to summary dismissal. It is however not enough for an employer to simply state that an employee has deserted duty. The law is that an employer alleging desertion against an employee must show efforts made towards reaching out to the employee and putting them on notice that termination of employment on this ground is under consideration.” The Respondent’s witness did testify that he personally called the Appellant during the Covid-19 period and that she indicated she was not coming back. That evidence is contested and there is no documentary record of any such call, no written notice inviting the Appellant to return and no disciplinary process of any kind. More fundamentally, the Respondent’s own case contains an internal inconsistency: its Memorandum of Response and Counter-Claim describe the Appellant as having walked away of her own accord, yet the evidence from Derrick Kyalo suggests a telephone notification that she was no longer needed, which is consistent with the Appellant’s own account of receiving a call informing her that her services had been dispensed with. On the totality of the evidence, the Respondent has not discharged the burden under Sections 43 and 45 of the Employment Act, 2007 of proving a valid and fair reason for the termination, nor is there any evidence of compliance with Section 41. Grounds 3 through 7 of the appeal succeeds. The 3rd issue is the appropriate relief. Section 49 of the Employment Act, 2007 entitles an unfairly terminated employee to salary in lieu of notice, accrued and unpaid leave pay, and compensation for unfair termination. The court is alive to a material inconsistency in the Appellant’s own case: her Statement of Claim pleaded a monthly salary of Kshs. 10,000, but her testimony referred to a daily rate of Kshs. 400, which if applied on a 26-day month basis would produce a monthly figure of Kshs. 10,400. This inconsistency is resolved in favour of the lower figure of Kshs. 10,000 per month, being the pleaded figure and the one most favourable to the Respondent on an assessment of proof. For the same reason, the court declines to award the claims for unpaid overtime and unpaid house allowance. In the absence of any muster roll or wage register showing the actual hours worked and the allowances paid, these claims cannot be verified. The claim for unpaid public holidays stands on a different footing, since it turns not on proof of hours worked but on a statutory entitlement under Section 27 of the Employment Act, 2007 and the fact of the Appellant’s service is established. Taking the proven period of continuous service as running from 27th May 2017 to 22nd February 2020, a period of approximately two years and nine months (2¾ years), the awards are as follows: 1. One (1) month’s salary in lieu of notice……………………………….Kshs. 10,000.00 2. Service pay (2¾ years × ½ month’s salary per year)………………….Kshs. 13,750.00 3. Leave pay (21 days × 2¾ years × Kshs. 384.62 per day)……………...Kshs. 22,212.00 4. Unpaid public holidays (9 days × 2¾ years × Kshs. 333.33 × 2)……..Kshs. 16,500.00 5. Six (6) months’ gross salary as compensation for unfair termination of employment …………………………………………………………...…………….Kshs. 60,000.00 **Total of award**………………………………………………………**Kshs. 122,462.00** In assessing compensation at six rather than the maximum twelve months’ gross salary, this court has had regard to the factors in Section 49(4) of the Employment Act, 2007 in particular the Appellant’s period of service of approximately two years and nine months, the nature of the termination by a telephone call without notice, reason or process and the absence of any established contribution by the Appellant to her own termination. The award of six months’ is proportionate to those circumstances. Turning to the Counterclaim, the Respondent’s claim for special damages representing the cost of recruiting and training a replacement is not a legally cognisable head of damages. The Employment Act, 2007 does not provide for recovery of such costs and the claim has no legal basis in the law of employment. The Counter claim accordingly fails and is dismissed. I am therefore inclined to partially allow the appeal in part and order relief as follows; 1. The finding of the trial court that the Appellant was a piece-rate worker whose termination was self-inflicted is set aside and substituted with a finding that the Appellant was an employee of the Respondent under a contract of service from 27th May, 2017 to 22nd February, 2020 whose employment was unlawfully and unfairly terminated. 2. The Respondent shall meet and pay to the Appellant the sum of Kshs. 122,462.00 as particularised above. 3. The said monetary award sum shall attract interest at court rates from the date of this judgment of court until payment in full. 4. The Respondent shall issue the Appellant with a Certificate of Service within thirty (30) days of this judgment of court. 5. The dismissal of the Respondent’s Counterclaim is upheld. 6. The costs of this cause shall be borne by the Appellant. Delivered, dated and signed this **31st** day of **July** 2026. **D. K. Njagi Marete** **JUDGE** Appearances: 1. Mr. Ngigi instructed by Ngigi Njuguna & Company Advocates for the Appellant. 2. No appearance for the Respondent.