https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1703

Aquamist Ltd v Njuguna (Employment and Labour Relations Appeal E124 of 2024) [2026] KEELRC 1703 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1703 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Appeal E124 of 2024 JW Keli, J June 19, 2026 Between Aquamist Limited Appellant and Jeremiah Njuguna Respondent (Being an Appeal from the Judgment and Decree of the Hon. C.A. Ogweno (SRM) delivered at Nairobi on the 21st day of March, 2024 in Milimani MCELRC No. E539 of 2022) Judgment 1.The Appellant herein, being dissatisfied with the Judgment and Decree of the Hon. C.A. Ogweno (SRM) delivered at Nairobi on the 21st day of March, 2024 in Milimani MCELRC No. E539 of 2022 between the parties filed a memorandum of appeal dated the 19th of April 2024 seeking the following orders:-a.The Appeal be allowed.b.The Judgment of the Honourable C.A. Ogweno (Senior Resident Magistrate) dated and delivered at Nairobi on 21st March 2024 in Milimani Magistrate’s Employment and Labour Relations Court Cause No. E539 of 2022 – Jeremiah Njuguna vs Aquamist Limited be set aside.c.The Respondent’s suit against the Appellant as instituted vide the Memorandum of Claim dated 14th March 2022 be dismissed in its entirety with costs as sought in the Appellant’s Response to Memorandum of Claim dated 30th September 2022.d.The costs of this Appeal and those of the suit before the trial Court be awarded to the Appellant.e.Such further or other reliefs as this Honourable Court may deem just and fit to grant in the circumstances of this Appeal. Grounds Of The Appeal 2.The Honourable Trial Magistrate erred in law and in fact in finding that the Respondent had been terminated despite the fact that the Respondent had not adduced any evidence to demonstrate said termination. 3.The Honourable Trial Magistrate erred in law and in fact in ignoring the fact that the Respondent’s allegation that he was called and verbally dismissed from employment was neither substantiated nor corroborated by another witness. 4.The Honourable Trial Magistrate erred in law and in fact in failing to acknowledge and appreciate that the Appellant’s position that the Respondent had absented himself from work on 17th June 2021 without leave or other lawful cause was neither denied nor controverted by the Respondent in his pleadings. 5.The Honourable Trial Magistrate erred in law and in fact in failing to acknowledge and appreciate that the Appellant’s position that the Respondent was yet to return to work and had not been terminated was neither denied nor controverted by the Respondent in his pleadings. 6.The Honourable Trial Magistrate erred in law and in fact in failing to acknowledge and appreciate that the Appellant’s position that the Respondent’s alleged cause of action had neither arisen nor crystallized was neither denied nor controverted by the Respondent in his pleadings. 7.The Honourable Trial Magistrate erred in law and in fact in observing that the Appellant had informed the County Labour Officer, vide its letter dated 19th October 2021, that the Respondent had been taken through a disciplinary process that culminated in a summary dismissal when the said letter had in fact expressly stated that the said disciplinary process had not been concluded. 8.The Honourable Trial Magistrate erred in law and in fact in finding that the Appellant had failed to present evidence of the aforesaid disciplinary process when the process itself was immaterial and irrelevant to the facts of the case before her. 9.The Honourable Trial Magistrate erred in law and in fact in considering and relying on the disciplinary process mentioned in the Appellant’s letter to the County Labour Officer dated 19th October 2021 when the said process was completely immaterial and irrelevant to the Respondent’s uncontroverted absenteeism from work and the general facts of the case before her. 10.The Honourable Trial Magistrate erred in law and in fact in failing to acknowledge and appreciate that the Respondent had not been terminated as a consequence of the forgery case mentioned in the Appellant’s letter to the County Labour Officer dated 19th October 2021 and that, as a result, the said forgery case was completely immaterial and irrelevant to the facts of the case before her. 11.The Honourable Trial Magistrate erred in law and in fact in making a finding on the fairness of the alleged termination when the Respondent had not adduced any material to show that he had in fact been terminated from employment. 12.The Honourable Trial Magistrate erred in law and in fact in awarding the Respondent compensation for unfair termination when the Respondent had not demonstrated, to the required standard, that he had in fact been terminated. 13.The Honourable Trial Magistrate erred in law and in fact in failing to consider the Appellant’s defence, testimony under oath and evidence. 14.The Honourable Trial Magistrate erred in law and in fact in failing to find that the Respondent’s Memorandum of Claim dated 14th March 2022 did not disclose any reasonable cause of action against the Appellant. 15.The Honourable Trial Magistrate erred in law and in fact in disregarding the evidence tendered by the Appellant and/or failing to consider the said evidence in its totality/as a whole. 16.The Honourable Trial Magistrate erred in law and in fact in failing to appreciate the significance of the documentary evidence tendered in support of the Appellant’s case. 17.The Honourable Trial Magistrate erred in law and in fact in misapprehending the evidence on record. 18.The Honourable Trial Magistrate erred in law and in fact in failing to properly and exhaustively evaluate the evidence on record. 19.The Honourable Trial Magistrate erred in law and in fact in arriving at conclusions and inferences which are unsupported by evidence and/or based on no evidence. 20.The Honourable Trial Magistrate erred in law and in fact in taking into account irrelevant and extraneous factors. 21.The Honourable Trial Magistrate misdirected herself on the issues before the court for determination and consequently made findings that were not in consonance with the cases presented by the parties. 22.The Honourable Trial Magistrate erred in finding that the Respondent had proven his case against the Appellant on a balance of probabilities, and consequently entering judgment against the Appellant. 23.In all the circumstances of the case, the Learned Magistrate failed to render justice to the Appellant. 24.Other grounds and reasons to be adduced at the hearing hereof. Background To The Appeal 25.The Respondent filed a claim against the Appellant vide a memorandum of claim dated the 14th of March 2022, seeking the following orders:-a)The claimant’s total claim against the Respondent herein is Kshs. 730,368.58 as more particularized in paragraph hereinabove.(b)Interest at court rates on (a) above.c)Costs of this suit.d)Certificate of Service.(e)Any other relief that this Honourable Court may deem fit and just to grant.(Pages 6-8 of the ROA dated 6th October 2025). 26.In support of his claim, the Respondent filed his list of witnesses dated 14th March 2022, witness statement of even date, and list of documents of even date with the bundle of documents attached (See pages 10-28 of ROA). 27.The claim was opposed by the Appellant who entered appearance and filed a response dated the 30th of September 2022 (pages 29-31 of ROA). They also filed a witness statement of Benjamin Omondi dated 27th March 2023; and list of documents also of even date with the bundle of documents attached (pages 32-38 of ROA). 28.The Claimant/Respondent’s case was heard on the 12th of October 2023, with the Claimant testifying in the case as PW1. He relied on his filed witness statement as his evidence in chief, and produced his documents as exhibits. He was cross-examined by counsel for the Respondent/Appellant, Mr. Wachira (pages 55-58 of ROA). 29.The Respondent/Appellant’s case was heard on 15th November 2023, with the Appellant calling Benjamin Omondi Olando to testify on its behalf as RW1. He relied on his filed witness statements as his evidence in chief and produced the Appellant’s documents as exhibits. RW1 was cross-examined by counsel for the Claimant/Respondent, Ms. Nyambane (pages 59-61 of ROA). 30.Following directions that the parties file their respective written submissions, each party complied. 31.The Trial Magistrate Court delivered its judgment on the 21st of March 2024 partially allowing the Claimant’s claims to the tune of Kshs. 79,485/ comprised of one month’s salary in lieu of notice, and two (2) months’ salary as compensation for unfair termination, plus costs of the suit (Judgment at pages 63-82 of ROA). Determination 32.The appeal was canvassed by way of written submissions. Both parties filed. Issues for determination 33.In their submissions dated the 19th of January 2026, the Appellant identified the following issues for determination:-i.Whether the Respondent proved that he had been terminated from the Appellant’s employment.ii.Whether the forgery case mentioned in the Appellant’s letter to the County Labour Officer dated 19th October 2021 was relevant to the case in issue.iii.Whether the Respondent constructively resigned from the Appellant’s employment. 34.The Respondent identified two issues for determination in his submissions dated 23rd February 2026, namely:-i.Was the respondent’s termination unfair and unlawful.ii.Is the respondent entitled to the reliefs sought. 35.The court discerned the issues for determination in the appeal were –a.Whether the respondent’s employment termination was fair and lawful.b.Is the respondent entitled to the reliefs granted? Whether the respondent’s employment termination was fair and lawful. 36.This being a first appellate court, it was held in Selle v Associated Motor Boat Co. [1968] EA 123 that:- “The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.” 37.The threshold for determination of fairness of termination of employment is according to the provisions of section 45 (2) of the Employment Act to wit:- ‘45(2) A termination of employment by an employer is unfair if the employer fails to prove—(a)that the reason for the termination is valid(b)that the reason for the termination is a fair reason—(i)related to the employees 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.’’ To pass the fairness test the termination must pass the substantive (in terms of reasons) fairness and the procedural fairness under section 41 of the Employment Act (Walter Ogal Anuro v Teachers Service Commission[2013]eKLR). 38.The court re-evaluated the evidence before the trial court to reach its own conclusion on the issue of fairness. The appellant in a letter dated 19th October 2021 informed the labour officer that the respondent, Jeremiah Njuguna, was suspected of forgery and taken through a disciplinary process which was to culminate in a summary dismissal(page 35 of ROA). The appellant further states that on or about 17th June 2021, the respondent absented himself from duty without leave, and their efforts to get him to conclude the process were unsuccessful. The trial court did not err in finding no evidence was produced in the disciplinary process as stated in the letter to the labour officer. Contrary to the letter to the labour officer, the appellant, in the witness statement of Omondi, stated that the respondent had absconded work on 17th June 2020 and not 2021 as stated to the labour officer. The respondent stated they had not terminated the services and the suit was premature. 39.There was no show cause on the absconding. The court finds that the appellant had a burden to comply with section 41 of the Employment Act to bring the relationship to an end, having relied on the defence of absconding, which is a gross misconduct under section 44 of the Employment Act. In Simon Mbithi Mbane Vs Inter Security Services Limited (2018) eKLR the Court observed that an allegation that an employee has absconded duties calls upon an employer to reasonably demonstrate that efforts were made to contact such an employee without success. (see similar position Wilson Kibande Abai v Kenya Tents Limited [2019] eKLR and Obonyo v Kibos Sugar & Allied Industries [2024] KEELRC 1392 (KLR)) 40.The court, on re-evaluation of the evidence before the trial court , as above, found no basis to interfere with the finding of unfair termination by the lower court. The court upholds the finding of the trial court of unfair termination for lack of proof of valid reasons and procedural fairness. Is the respondent entitled to the reliefs granted? 41.The trial court awarded one month's notice pay, which was due under section 35 of the Employment Act, and an equivalent of 2 months' salary, having factored of 2 years and 8 months of service, and the fact that the respondent could get an equivalent job in the market. I find the decision is in compliance with section 49 of the Employment Act on remedies for unfair termination. 42.In the upshot, I found no merit in the appeal and dismissed the same with costs to the respondent. 43.It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 19TH DAY OF JUNE, 2026.JEMIMAH KELI,JUDGE.In The Presence Of:Court Assistant: OtienoAppellant –Waweru h/b Wachira of O&M Law LLPRespondent – Ms Nyambane of Moraa Nyambane & Co Advocates