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Aquamist Ltd v Mburu (Employment and Labour Relations Appeal E125 of 2024) [2026] KEELRC 1702 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1702 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Appeal E125 of 2024 JW Keli, J June 19, 2026 Between Aquamist Limited Appellant and Robert Waweru Mburu 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. E550 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. E550 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. E550 of 2022 – Robert Waweru Mburu 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 Appea 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 resigned from employment 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 Respondent only denied resigning and disowned the signature on the resignation letter dated 8th August 2021 at the hearing of the suit, at which point the Appellant could not adduce further evidence to demonstrate that the resignation letter had in fact been authored and signed by the Respondent. 6.The Honourable Trial Magistrate erred in law and in fact in placing the burden of proof with regard to the resignation letter dated 8th August 2021 on the Appellant rather than the Respondent. 7.The Honourable Trial Magistrate erred in law and in fact in failing to acknowledge and appreciate that the Respondent did not place any material on record to show that the signature on the resignation letter dated 8th August 2021 was not his. 8.The Honourable Trial Magistrate erred in law and in fact in failing to find that in the absence of a reply to the Appellant’s Response to Memorandum of Claim dated 30th September 2022 and/or denial in any other document or pleading, the burden of proof with regard to the resignation letter dated 8th August 2021 rested with the Respondent to demonstrate that he was neither the author nor the signatory of the said resignation letter. 9.The Honourable Trial Magistrate erred in law and in fact in failing to acknowledge and appreciate that the signature on the resignation letter dated 8th August 2021 resembled the signature on the Respondent’s Verifying Affidavit sworn on 14th March 2022 and Witness Statement of even date. 10.The Honourable Trial Magistrate erred in law and in fact in failing to acknowledge, appreciate and find that the Appellant had proven, on a balance of probabilities, that the Respondent had voluntarily resigned from his employment with the Appellant. 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.The Honourable Trial Magistrate 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 Appea 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. 733,662.17 as more particularized and set out 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 10-33 of ROA). 27.The claim was opposed by the Appellant who entered appearance and filed a response dated the 30th of September 2022 (pages 34-36 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 37-52 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 66-71 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 72-76 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. 105,980/- comprised of one month’s salary in lieu of notice, and three (3) months’ salary as compensation for unfair termination, plus costs of the suit (Judgment at pages 79-84 of ROA). Determinatio 32.The appeal was canvassed by way of written submissions. Both parties filed. Issues for determinatio 33.In their submissions dated the 19th of January 2026, the Appellant identified the following issues for determination:-i.Whether the Respondent proved that his employment was terminated by the Appellant.ii.Whether the Appellant proved, on a balance of probabilities, that the Respondent voluntarily resigned from his employment with the Appellant.iii.Whether the trial Court needed to determine the issue whether the Respondent’s employment was terminated unfairly. 34.The Respondent identified two issues for determination in his submissions dated 29th January 2026, namely:-i.Was the respondent’s termination unfair and unlawful.ii.Is the respondent entitled to the reliefs sought. 35.The court discerned from the grounds of appeal the issues for determination are-I.Whether the Respondent proved that his employment was terminated by the Appellant.II.if a in the positive -Was the respondent’s termination unfair and unlawful.III.whether the trial court erred in relief granted Whether the Respondent proved that his employment was terminated by the Appellant. 36.The appellant’s grounds of appeal are to effect that the trial court erred in failing to find the respondent voluntarily resigned from employment and not that his employment was terminated by the respondent. Appellant’s submission 37.Whether the Respondent proved that his employment was terminated by the Appellant -The trial Court at paragraphs 35 and 36 of the Impugned Judgment (see page 81 of the Record of Appeal) rightly observed the parties’ respective positions as regards the question whether the Respondent’s employment had been terminated by the Appellant: “ The Claimant claims that he was verbally terminated from work in August 2021 when he was called by RW 1 who informed him that his services were no longer required. The Respondent on the other hand states that the Claimant absconded work from 16th July 2021 until 8th August 2021 when he handed in a resignation letter which was accepted by the Claimant.” Indeed, the Respondent in his Witness Statement dated 14th March 2022 (see page 11 of the Record of Appeal) stated thus: “Sometimes in August 2021 the respondent’s Human Resource Manager informed me that since the company was not doing any business, I should go home and I would resume work once business resumes. After two weeks I was called by the said Human Resource Manager who advised me to go to work. When I reported to work the said Human Resource Manager informed me that my services were no longer required.” The Appellant, on its part, was categorical that the Respondent was not terminated. Rather, he resigned of his own free will. In his Witness Statement dated 27th March 2023, Benjamin Omondi (RW 1) stated thus: “The Claimant was not terminated. He resigned from the Respondent’s employ of his own volition. His alleged cause of action has no basis in fact or law and he cannot therefore claim terminal dues and/or compensation for unlawful termination.” (see page 37 of the Record of Appeal) In his testimony, RW 1 told the Court in no uncertain terms that the Respondent had terminated his employment himself by resigning: “Robert absconded work on 16/7/2021 without leave approved. When I called him, he claimed he would return to formally apply for leave. … On 8/8/2021 he handed in his resignation without notice. I paid him for the month of August on humanitarian grounds. Pexh 3 resignation letter.” (see page 73 of the Record of Appeal) The Appellant’s documentary evidence was also consistent with RW 1’s testimony. In its letter dated 19th October 2021 (see page 40 of the Record of Appeal), the Appellant told the County Labour Officer thus: “The employee without leave or any other lawful cause absented himself from duty as from 16th July, 2021 as evidenced by attached attendance sheets (Appendix 2) On 8th August, 2021, he came and handed in his resignation without notice.” We submit that, in the absence of a termination letter, it was incumbent upon the Respondent to adduce viva voce evidence of termination. The decision in Mary Mmbone Mbayi v Chandubhai Patel & Another Industrial Cause No. 761 of 2011) is instructive in this regard. The Court held thus: “Even in cases where there may be no documentary proof of an employment relationship or termination thereof, the Claimant retains the burden of proving their case through viva voce evidence.” The Respondent did not adduce any documentary evidence to prove that his employment was terminated by the Appellant. His viva voce evidence was neither substantiated nor corroborated. Nothing was placed before the trial Court to show that the Respondent’s employment was terminated by the Appellant. Where termination itself is not proven, it naturally follows that the question of unfair termination does not arise. 38.Whether the Appellant proved, on a balance of probabilities, that the Respondent voluntarily resigned from his employment with the Appellant. The case before the trial Court turned on the resignation letter dated August 8, 2021 (Appellant’s Exhibit 3, found at page 50 of the Record of Appeal). The letter reads thus: “The Human Resource Manager, Aquamist Limited, P.O. BOX 66856 – 00800, Nairobi, August 8, 2021 Dear Sir, 2440 Robert Waweru Mburu, P.O. BOX 425 GATUNDU. RE: RESIGNATION FROM DRIVER POSITION AT AQUAMIST I hereby write to inform you that I’m resigning from the Driver position at Aquamist Limited. I’ve been fortunate to work for the company for the last three (3) years and the skills gained while working with the company will serve me well in future. Thank you for giving me the opportunity to work with Aquamist and I wish the company continued success. Regards, Robert Waweru (signature) 08/08/2021”. The trial Court at paragraphs 42 – 46 of the Impugned Judgment (see page 82 of the Record of Appeal) analysed the resignation letter and returned that the Appellant had not proved that the Respondent had resigned: “42. The Claimant denied resigning from employment and also disowned the signature in the letter and contended that it did not bear his signature. 43. The burden of proving that the letter was authored by the Claimant remained with the respondent who is relying on it as its evidence. 44. The Respondent did not call a handwriting expert to prove that the signature on the letter belonged the claimant. Further, the letter was received by the HR Manager, RW1 in person. He admitted that he indicated the claimant’s payroll number. Why then did he not acknowledge receipt thereof? 45. Besides, I note that even after the alleged termination without notice, the Respondent proceeded to pay the Claimant for the month of August 2021 after he had resigned. 46. While possible, I think it is highly improbable to pay an employee who has resigned without notice. 47. As such I hold that the respondent has not proved on a balance of probability that the claimant resigned from employment vide the letter dated 8th August 2021.” The trial Court was correct in its observation that the Respondent denied authoring the resignation letter. However, the learned magistrate failed to appreciate that this denial was, in essence, a tacit allegation of forgery. By telling the Court that the signature on the resignation letter is not his, the Respondent indirectly accused the Appellant of forgery. There is no other inference that can reasonably be drawn from the Respondent’s testimony. By alleging forgery, the burden of proof rested on the Respondent. To discharge this burden, the Respondent was expected to adduce a report of a handwriting expert who would demonstrate that the signature on the resignation letter and the attendance register at pages 42 – 49 of the Record of Appeal is not his. The Respondent did not adduce any such evidence. Forgery is a criminal act. Interestingly, the Respondent has never reported the alleged forgery of his signature on the resignation letter and attendance register to the police for investigations, or to a handwriting expert for examination. The burden was on the Respondent to plead, which he did not, and prove forgery on the part of the Appellant, which he also did not. The standard of proof where forgery is alleged is high. The burden is therefore much more difficult to discharge than in ordinary civil cases. W. Musyoka, J. explained this in the case of In re Estate of Kimani Kahehu (Deceased) [2018] eKLR: “It is the applicant who alleges that the will was a forgery. The burden is on him to establish that fact to the required standard. Forgery is a criminal act, and facts to establish it must make out a case beyond balance of probability and towards proof beyond reasonable doubt. See the decision of the Court of Appeal in Elizaeth Kamene Ndolo vs. George Matata Ndolo Nairobi Court of Appeal Civil Appeal Number 128 of 1995. A charge of forgery would be that the signature on the documents was not that of the deceased. To establish forgery, it is usually necessary to subject the impugned document to testing of the impugned signature or signatures by a document or handwriting expert. That was not done in this case. No material was placed before me by way of evidence that the signature on the document purported to be that of the deceased was forged.” In Daniel Gachanja Githaiga v Credit Reference Bureau Africa Ltd. & 2 Others [2020] eKLR, Nzioka L.J. held thus: “It is a fact that for a signature to be deemed and certified as forged, a document examiner’s report must be produced. None has been produced by either the Plaintiff or the 2nd Defendant, each shifting the burden of proof to the other. However, it is the Plaintiff who is alleging his signature was forged. He holds the otherwise genuine signature. Therefore, he bears the burden to prove the impugned signature is a forgery. … The key question is; why wasn’t the Plaintiff reporting the matter to the Directorate of Criminal Investigation especially after the 3rd Defendant allegedly confessed “unauthorized use of his documents?” The conduct of the Plaintiff in this matter is wanting. First and foremost, he does not deny the particulars and/or personal information attributed to him in the subject documents. Secondly, he does not deny knowledge of the 3rd Defendant and to fortify that position, the 3rd Defendant states in the apology letter that he will clear the Plaintiff’s name within a month and pay him one hundred and twenty thousand (Kshs 120,000.00) which the Plaintiff will deduct from “Crossline Hardware Account”. Obviously, the Plaintiff and the 63rd Defendant were well known to each other and it seems the Plaintiff was not ready to assist nail the 3rd Defendant. This is even informed by the fact that the Plaintiff wanted the matter settled amicably after the suit was filed. I therefore hold and find that in the absence of the document examiner’s report, there is no evidence beyond reasonable doubt that the Plaintiff’s signature was forged.” As in Estate of Kimani Kahehu (supra) and Daniel Gachanja (supra), Obaga J. in Ben Murumba Nakitare v Speed Capital Limited & another [2020] KEELC 2548 (KLR) restated the trite position on this issue: “In the instant case, the Plaintiff contends that he never executed the charge documents and that his title was forged as well as other documents. It was upon the Plaintiff to prove that his signature was forged; that his title was forged and that all his documents which were used to register the charge were forged. The Plaintiff did not give his specimen signature for examination by a document examiner. The Plaintiff in his evidence stated that the signature appearing on the charge was different from his known signature such as the one in the verifying affidavit. The Plaintiff is not a document examiner and cannot purport to compare the signatures when he is not an expert in handwriting. The Plaintiff claims in the plaint that his title was forged. If this was the case, it would have been expected that the Plaintiff produce his Title and challenge the 1st Defendant where they obtained the one they are holding. The Plaintiff did not give any evidence in support of the particulars of fraud. In the case of R.G. Patel Vs. Lalji Makanji (1957) EA 314 at 317, the Court of Appeal stated as follows:- “Allegations of fraud must be strictly proved; although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required…………….” The court went on to state “the law places a higher burden on anyone relying on a claim of fraud to go an extra mile of adducing evidence that will suffice to link the allegation of fraud to any party. This is a principle that every party must bear in mind as they strive to make their claim based on fraud”. The Plaintiff argued that there is no way the charge would have been registered without spousal consent. Evidence which has been tendered 7herein is that an affidavit was sworn by the Plaintiff in which he indicated that he was not married. If the Plaintiff’s position is that he is married, he should have adduced evidence to show that he is married and that the affidavit was a forgery. It is the Plaintiff who had the burden to prove the forgery of the affidavit by giving expert evidence to show that the signature on the affidavit was not his. If the Plaintiff would have adduced evidence to show that his signature was forged and that his title was forged, then the burden of proof would have shifted to the 1st Defendant to show that indeed the Plaintiff is the one who signed the Charge document. This is the time the Advocate before whom he appeared would have been called to rebut what the Plaintiff would have said. The Plaintiff’s conduct herein show the image of a man who dealt with the issue in a casual manner. Despite having reported the alleged forgery to police, he never gave samples of his signature for verification. He never followed up the issue with the police. When the Purchaser confronted him with the information that the property had been charged yet he was trying to sell the same to him, he still purported to tell him to be patient. He never did anything. He only refunded the 10% deposit upon being pressured to do so. The Plaintiff only moved to court when statutory notices were given. The Plaintiff never bothered to enjoin the borrower in the proceedings or press any criminal charges against him.” At the risk of sounding trite, Kendagor L. J. also addressed herself to this issue in Kinyanjui v Kinyanjui & another [2024] KEHC 11217 (KLR): “The obligation of a litigant seeking to prove fraud was well articulated by the High Court in Re The Estate of Thomas Mutua Mukumbu – (Deceased) [2014] eKLR, where the court held as follows; “The applicant alleges that the respondent forged her signatures in the affidavits which supported his application for confirmation. She also asserts that the respondent acted fraudulently. These are very serious allegations. Forgery and fraud amount to criminality. The applicant is literally accusing the respondent of acting criminally. The standard of proof required to establish forgery and fraud is very high. Even in civil cases it is higher than balance of probability. The Court of Appeal had occasion to address its mind on this in Elizabeth Kamene Ndolo v George Matata Ndolo (1995) LLR 390, albeit in a matter on forgery with respect to wills, when it stated that the charge of forgery or fraud is a serious one, and that the standard of proof required of the alleger is higher than that in ordinary civil cases, 8although not beyond reasonable doubt. The applicant in this case ought to have subjected her alleged signature in the two impugned affidavits to testing by a handwriting expert or a document examiner. It is not enough for her to deny the signature, she should have sought to demonstrate that the signatures in those two documents could not possibly be hers. I am not an expert in such matters, for I do not have a trained eye in that regard, and I cannot possibly pass judgment as to whether the signatures on the two affidavits were genuine or not.” Similarly, in Re Estate of Samuel Ngugi Mbugua (Deceased) [2017] eKLR, the court held as follows; “On the forgery claim, she relies on a document that she placed on record to demonstrate that the signature on the will differed from the deceased’s usual signatures. The applicant did not claim to be a document examiner; neither can I claim to be one. Neither of us can speak authoritatively about the authenticity of the alleged signature. The most effective way of dealing with such matters is to subject the alleged signature to testing by a document or handwriting examiner or expert. The applicant did not subject the signature on the will, alleged to be that of the deceased, to such testing, there is no report of such an expert, and none was called. I cannot therefore make any determination at all on the said signature without such expert evidence.” Based on the above authorities, the Appellant ought to have subjected his alleged signature in the doubted form of consent to testing by a handwriting expert or document examiner. He did not. I therefore agree with the lower court’s finding that the Appellant did not offer evidence to support his claim of fraud against the Respondents.” The legal position is no different in employment cases. In Abdallah v Twiga Car Hire & Tours Ltd. [2023] KEELRC 232 (KLR), the Respondent contended that the Claimant had resigned from its employ. However, he denied authoring the resignation letter as well as a discharge voucher vide which he allegedly confirmed receiving final dues. The Court found that it was the Claimant’s burden to prove that he had not authored the two documents: “It is worth noting that despite the claimant’s assertions, he did not prove that the documents produced by the respondent were an act of forgery. Having alleged that the respondent’s exhibits confirming his resignation were an act of forgery, it was incumbent upon the claimant to prove the same. It is trite law that ‘he who alleges must prove’. 9In this regard, I find the following expression from the Court of Appeal in the case of Kinyanjui Kamau v George Kamau [2015] eKLR, to be apt: “It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo v Ndolo [2008] 1 KLR (G&F) 742 wherein the court stated that: “…We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal cases…” And further, in the case of Demutila Nanyama Pururmu v Salim Mohamed Salim [2021] eKLR, the Learned Judges of the Court of Appeal reckoned thus: “As the appellant was the one claiming that the documents were forgeries, the burden was on her to prove that the documents were not authentic government documents as claimed by the respondent. Section 107 of the Evidence Act provides as follows:- (1) “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exists. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” Turning to the instant case, the claimant did not lead any evidence to discount the authenticity of his signatures as appearing in the letter dated December 29, 2004 and in the discharge voucher. … In the circumstances, I do not find any reason to doubt the authenticity of the respondent’s exhibits and I am enjoined to consider them in evidence.” The Respondent denied appending his signature to the resignation letter. He had what he believed to be his genuine signature. By dint of the all the cases we have cited in the preceding paragraphs of these submissions, it was the Respondent’s burden to prove that he did not author the letter, and that the signature appended thereto was not his. The trial Court therefore erred in placing the burden on the Appellant to prove that the resignation letter was authored and signed by the Respondent. By so doing, the learned magistrate departed, without any justification, from the well-established legal position that 10the burden lies with the person who is alleging that a document or signature is not authentic to lead evidence to discount its authenticity. 23. The trial Court faulted the Appellant for not acknowledging receipt of the resignation letter, despite having indicated the Respondent’s payroll number thereon. This, we submit, was an erroneous finding. The Appellant’s witness produced and relied on the said resignation letter. In his witness statement, RW 1’s position was that the Respondent absented himself from work from 16th July 2021 until 8th August 2021 when he reported back to work and handed the resignation letter in. In his testimony, RW 1 explained the manner in which the Respondent resigned: “On 8/8/2021 he handed in his resignation without notice. … Robert brought the letter when I asked him to avail a formal resignation letter for him. I am the one who wrote the (payroll) number for filing purposes. The letter was signed and dated.” (see page 73 of the Record of Appeal) “The resignation letter is dated 8/8/2021….It was brought by Robert.” (see page 75 of the Record of Appeal) “On 8/8/2021 Robert came to the Human Resource Office. I received the resignation letter. I did not acknowledge receipt…” RW 1 clearly explained to the trial Court that he personally received the impugned resignation letter. While he may not have acknowledged receipt thereof on the face of the letter, he indicated the Respondent’s payroll number thereon for purposes of filing. Having personally received the impugned letter and produced it in court himself, it was not necessary for RW 1 to have expressly acknowledged receipt of the letter, or for the trial Court to require such acknowledgment so as to validate the letter. In any case, an employer is not legally required to acknowledge or even accept a resignation letter. While acknowledgement may be good practice, it is not a legal requirement. Acknowledgment does not validate a resignation letter. Courts have repeatedly held that resignation is a unilateral act which brings about termination of the employment relationship without requiring acceptance. Once an employee communicates the decision to resign from employment, as the Respondent herein did, the contract of employment is effectively terminated. The validity of the resignation is not dependent on the 11employer accepting it. The Industrial Court of eSwatini’s decision in Rudolph v College (94 of 2007) [2007] SZIC 22 (24 April 2007) and this Court’s decision in Ayonga v Falcon Signs Limited [2023] KEELRC 300 (KLR) are instructive in this regard. The trial Court also misinterpreted the Appellant’s act of paying the Respondent his full salary for the month of August 2021 despite the Respondent having resigned with immediate effect on the 8th day of that month. The learned magistrate found it improbable that an employer would remunerate an employee who has resigned without notice. It would appear that the magistrate failed to properly appreciate the nuances of the case before her, and the evidence presented to her. One of the claims by the Respondent was unlawful deductions for the months of May, June, July, September and October 2019, as well as August and September 2020. He produced payslips showing these deductions but, as explained by RW 1, the Respondent had requested and was given salary advances which would be deducted at the end of the month: “EXHIBIT 1 prepared the payslip. Employees would be given advances which would be deducted at the end of the month. A request for an advance would be made. I did not need to give reasons for the deductions as Robert was aware.” (see page 75 of the Record of Appeal) The trial Court itself agreed with the Appellant that the deductions were on account of salary advances given to the Respondent: “72. The Respondent has explained these to be advanced to the Claimant on his own application agreed to be deducted at the end of the month. 73. The said deductions are described in the pay slip as advance recovery. 74. The Claimant was dismissed from employment in August 2021. The last deduction was made in September 2020, almost one year before. 75. If at all these were unlawful deductions, why did the Claimant not raise any complaint with the employer before the termination? 76. I am not persuaded that these were unlawful deductions but that they were advance recoveries not liable for compensation.” (see page 83 of the Record of Appeal) The Respondent had taken to requesting salary advances. His is a well documented pattern that shows an employee who was constantly in need. It was against this background that the Appellant decided to pay him his full salary for the months of July and August 2021. The Appellant was well aware that the Respondent was not deserving of these salaries and, as explained by 12RW 1, the payments were effected on humanitarian grounds which, viewed in the context of the salary advances, can reasonably be interpreted as recurring financial needs: “On 8/8/2021 he handed in his resignation without notice. I paid him for the month of August on humanitarian grounds.” (see page 73 of the Record of Appeal) “He never denied receiving salaries for July and August. I paid him out of good work. He was not entitled to these salaries.” (see page 76 of the Record of Appeal) That , while it may be improbable for an employer to remunerate an employee who has resigned without notice, such remuneration should be interpreted in its proper context. Unfortunately the trial Court missed the context in this case and held the Appellant’s kindness against it. The Appellant’s decision to pay the Respondent a full salary despite his decision to exit its employ abruptly is not a justification for the finding that the Respondent did not resign. The resignation letter enjoys a rebuttable presumption of due execution and/or regularity. The Respondent did not rebut this presumption. The Respondent neither pleaded nor proved any forgery, duress, coercion or undue influence by the Appellant. It was not enough for the Respondent to deny that the signature on the resignation was his; he needed to adduce evidence in the form of a report by a document examiner or a handwriting expert to prove that denial. He did not. We submit that there are no circumstances which would disturb the conscience of this Honourable Court about the validity of the resignation letter. The same is unimpeachable. Consequently, it is our submission that the Appellant proved, on a balance of probabilities, that the Respondent voluntarily resigned from its employ. Respondent’s submission 39.That for the termination to meet the legal threshold, an employer must justify that there was reason to terminate the services of an employee and that such termination was in line with fair procedure. Such procedure entails giving the employee an opportunity to explain his side of the story or rather state his defence. It was the respondent’s case according to his witness statement dated 14th March 2022 (refer page 11-12 of the record of appeal) that sometime in August 2021 the appellant’s Human Resource Manager informed the respondent that since the company was not doing any business, he should go home and he would resume work once business resumes. The respondent went home however after two weeks the respondent was called by the said Human Resource Manager who asked the respondent to go to work. When the respondent reported to work the said Human Resource Manager informed the respondent that his services were no longer required. It can be discerned from said termination, no reasons were advanced for the respondent’s termination. Further, there is no evidence that the respondent was notified of any reasons to warrant his termination. Similarly, there was no evidence to suggest that the respondent gave the respondent an opportunity to tender his defence against the allegations if any. In addition to this, there is no evidence that respondent was accorded due process prior to the termination. 40.The appellant alleged that the respondent absented himself form work (absconded) on 16th July 2021 without lawful cause. In support of these allegations the appellant produced attendance sheets as exhibit 2 of the appellant’s bundle of documents (refer to page 42-49 of the record of appeal). The respondent denied ever absconding duty and denied filling and/or signing the attendance sheets (refer to page 68-69 of the record of appeal). On cross examination of the appellant’s witness (refer to page 74 of the record of appeal) the said witness confirmed that the said attendance registry herein is different from the attendance registered produced by the appellant in MCELRC 539 of 2022 – Jeremiah Njuguna vs Aquamist (refer to page 37-38 of the record of appeal in ELRA NO. 124 OF 2024 – Aquamist vs Jeremiah Njuguna which matter is also before you ) That further to this, there is no evidence that the said attendance sheet is from the appellant. The same does not have the appellant’s letter head and stamp. The author of the said attendance registry is unknown especially when the same is marked as absent when the respondent is allegedly absent. The law on absconding duty by an employee is well settled. In the case of Ronald Nyambu Daudi v Tornado Carriers Limited [2019] (annexed herewith) the court held as follows; Desertion 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 In the case of Evans Ochieng Oluoch v Njimia Pharmaceuticals Limited [2016] eKLR (annexed herewith) the court held as follows; An employer relying on the ground of desertion of duty to justify a termination of employment must show that efforts have been made to get in touch with the deserting employee. At the very least, the employer must issue reasonable notice to the employee that termination of employment is being considered in the case of Simon Mbithi Mbane v Inter Security Services Limited [2018] eKLR Abuodha J. stated 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”. Similarly, Nduma J. in the case of Joseph Nzioka v Smart Coatings Limited [2017] eKLR stated that; “dismissal on account of absconding must be preceded by evidence showing that reasonable attempt was made to contact the employer concerned and that a show cause letter was issued to such employee calling upon such employee to show cause why his services should not be terminated on account of absconding duties”. In the matter herein the appellant alleged that the respondent absconded duty on 16th July 2021 without lawful cause. There is no evidence that the appellant as the respondent’s employer tried reaching out to the respondent (contacting the employee) to find out why the respondent was not at work as alleged. There is no evidence that the respondent was issued with a warning letter for absconding duty or notice to show cause to explain why he absconded duty. In absence of proof of the appellant attempting to reach the respondent or warning letter or NTSC issued to the respondent for absconding work, it’s our humble submission that the allegations for absconding duty have not been proved by the appellant and the same ought to be dismissed. Issue of the alleged resignation by the respondent. The appellant’s witness further alleged that the respondent after absenting himself from work since 16th July 2021 the respondent reported to work on 8th August 2021 and handed in resignation letter dated 8th August 2021 which was produced as exhibit 3 of the appellant’s bundle of documents (refer to 50 of the record of appeal). The respondent on the other hand provided a contrary version of how he was terminated by the appellant as provided for in the respondent’s witness statement dated 14th March 2022 (refer to page 11-12 of the record of appeal) That even before the filing of the suit the respondent vide letter dated 4th November 2021 complained that the appellant’s had unlawfully terminated him (refer to 14-15 of the record of appeal). Further to this, the respondent also complained to the Ministry of Labour dated 29th September 2021and 13th October 2021 (refer to 18-19 of the record of appeal) of being unlawfully terminated by the appellant. The appellant produced an alleged resignation letter allegedly authored by the respondent (refer to page 50 of the record of appeal). The respondent during cross examination denied ever authoring the said letter (refer to page 67 of the record of appeal). Even during cross examination of the respondent by the appellant’s advocate, the respondent denied authoring the said letter (refer to page 69 of the record of appeal). That it is the appellant who produced the alleged letter and sought to rely on the same as its evidence in support of its case before the Trial Court. It was therefore incumbent upon the appellant to prove its case that the said letter was authored by the respondent. It was incumbent upon appellant to proof to court that the signature belonged to the respondent. The allegations raised by the appellant in paragraph 8 of the memorandum of appeal (refer to page 2 of the record of appeal) that the Learned Magistrate errored in failing acknowledge and appreciate that the signature on the resignation letter dated 8th August 2021 resembled the signature on the Respondent’s Verifying Affidavit sworn on 14th March 2022 and Witness Statement were never raised by the appellant during trial and/or submission and therefore the appellant cannot introduce new allegations during appeal. Further to this the issue as to whether a particular signature resembles (or is different) from another signature is a matter that only an expert witness i.e a forensic document examiner can confirm or deny. The appellant being the party who sought to rely of the said document failed to bring forth an expert witness to support its case that the signature of the said resignation letter belonged to the respondent. In the absence of such proof, it’s our humble submissions that the there is no proof that the said letter was ever authored by the respondent and as such the allegations of resignation ought to be dismissed. Further to this, during cross examination of the appellant’s witness, the said witness confirmed that once an employee enters the respondent’s premise, he or she sign an attendance as proof that he/she was at the premise. There is no evidence of the respondent visiting the premise on 8th August 2021 as alleged by the appellant. There is also no evidence of the said resignation letter being received by the appellant, a fact that was confirmed by the appellant’s witness during cross examination. (refer to page 75 of the record of appeal). These allegations of absconding duty and resignation are further contradicted by the fact that despite the respondent being allegedly absent from work in the month of July and resigning in August the respondent was paid his salary in full for the Month of July 2021 and August 2021 as evidenced by the payslips produced by the appellants. (refer to page 51-52 of the record of appeal). That by the fact that the respondent was paid his salary for the months of July 2021 and August 2021 is enough proof that the respondent was an employee for the appellant during this period and did not resign as alleged by the appellant. There is no evidence that the respondent delivered the alleged resignation letter to the appellant and when the same was received by the appellants. It’s our humble submission that the Learned Magistrate correctly analysed the issue of resignation in her judgment and held as follows; “Besides I note that even after the alleged resignation without notice the respondent proceed to pay the claimant’s salary for August 2021 after he had resign. While possible, I think it is highly improbable for an employer to pay an employee who has resigned without notice. As such I hold that the respondent has not proved on a balance of probability that the claimant resigned from employment vide letter dated 8th August 2021 (refer to paragraph 45, 46 and 47 of the judgement on page 82 of the record of appeal) 51 It’s therefore our humble appeal that this Honourable Court upholds the same findings. In view of the fact that the appellant’s response to the respondent’s case of being unlawful terminated is pegged to the allegations that the respondent herein resigned which allegations are false and ought to be dismissed as submitted herein above, it’s our humble submission that the respondent’s testimony on the manner as to how he was terminated by appellant clearly shows that the respondent was unlawfully and unfairly terminated by the appellant. The appellant as the employer has failed to justify that there was reason to terminate the services of its employee (the respondent herein) and that such termination was unlawful and unprocedural. Decisio 41.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.” 42.The respondent in witness statement stated that sometime in August 2021, the respondent's human resources manager informed him that since the company was not doing any business, he should go home and would resume work once the business resumed. After two weeks, the manager called and advised him to go to work. When he reported, the manager told him there was no work (page 11 of ROA). The court noted that in response to the demand letter, the appellant informed the advocates for the respondent that that the employee absconded from work on 16th July 2021, and on 8th August 2021 and that he handed his resignation letter, which was accepted (page 16 of ROA). The respondent, via witness statement of Benjamin Omondi dated 27th March 2023, stated that the respondent resigned. On perusal of the record, I did not find any reply by the respondent on this issue of resignation. The letter of resignation was produced by the appellant and indicated as signed by the respondent; it was typed. The officer's number was written by hand at the top. The respondent’s witness at the hearing told the trial court that upon receipt of the letter, he wrote the number for the purpose of filing. The respondent, during the hearing before the trial court, denied having signed the letter. The trial court placed the burden on the appellant to prove the signature as that of the respondent. The court noted that the respondent had not disputed the letter at any time before the hearing. The trial court held as follows—‘42. The Claimant denied resigning from employment and also disowned the signature in the letter and contended that it did not bear his signature.” 43.The burden of proving that the letter was authored by the Claimant remained with the respondent, who is relying on it as its evidence. 44.The Respondent did not call a handwriting expert to prove that the signature on the letter belonged the claimant. Further, the letter was received by the HR Manager, RW1 in person. He admitted that he indicated the claimant's payroll number. Why then did he not acknowledge receipt thereof?’ 45.Besides, I note that even after the alleged termination without notice, the Respondent proceeded to pay the Claimant for the month of August 2021 after he had resigned. 46.While possible, I think it is highly improbable for an employer to pay an employee who has resigned without notice. 47.As such I hold that the respondent has not proved on a balance of probability that the claimant resigned from employment vide the letter dated 8th August 2021. 48.As to whether the termination was unfair, while the Respondent hangs on the resignation letter which has been dismissed by the Court, the Claimant states that he was called and verbally dismissed from employment without any notice or reasons thereto. 49.The respondent did not make an effort to prove the validity of the said reason. 50.Section 43(1) of the Employment Act requires that in every claim arising out of termination of contract of service, the employer shall prove the reason(s) for the termination and in default the termination is unfair within the meaning of section 45 of the Act. 51.In addition to the foregoing, the claimant contended that he was dismissed without being heard. 52.The Respondent did not prove that a fair procedure was followed before dismissing the claimant and insisted that the claimant resigned voluntarily from employment. 53.Having found that the Respondent has failed to prove that the dismissal of the claimant was grounded on a valid reason and that a fair procedure was followed, it is my holding that the dismissal was unfair within the meaning of section 45 of the Employment Act.’ 43.The prove of termination is as per section 47(5) of the Employment Act as follows- ‘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’’ The respondent alleged unfair termination and the response was that he resigned. Even as at the time of filing the claim, the respondent was aware that the defence was that he had resigned, yet he did not comment on the same. After being served with the response with defence of voluntary resignation, the respondent did not file a reply to refute the claim. The appellant was thus obviously caught by surprise when the respondent disputed the signature at the hearing. I agreed with the appellant that this was tantamount to an allegation of forgery of the signature. The trial court, in that respect, erred in failing to appreciate that there was no reply to the response and, further, that the claimant had the burden to provide evidence as the owner of the signature to prove that it was not his signature. I was persuaded by the decision relied on by the appellant in the Court of Appeal in the case of Kinyanjui Kamau v George Kamau [2015] eKLR, to be apt: “It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo v Ndolo [2008] 1 KLR (G&F) 742 wherein the court stated that: “…We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal cases…” And further, in the case of the Learned Judges of the Court of appeal in Demutila Nanyama Pururmu v Salim Mohamed Salim [2021] eKLR, reckoned thus: “As the appellant was the one claiming that the documents were forgeries, the burden was on her to prove that the documents were not authentic government documents as claimed by the respondent. Section 107 of the Evidence Act provides as follows:- (1) “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exists. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” Turning to the instant case, the claimant did not lead any evidence to discount the authenticity of his signatures as appearing in the letter dated December 29, 2004 and in the discharge voucher. … In the circumstances, I do not find any reason to doubt the authenticity of the respondent’s exhibits and I am enjoined to consider them in evidence.” 44.Resignation is a unilateral act, and there is no requirement of acceptance of the same by the employer. The court found the payment of salary in July and August without termination of the employment was not weighty to impugn the resignation as it was explained. The court finds that the resignation letter was not disputed by an express reply to the response, and the mere denial of the signature's authenticity could not stand. The denial meant the respondent’s position was that his signature was forged yet failed to prove so. The court noted from the pleadings that the respondent was elusive on the date of termination. The court, for the foregoing reasons, holds that the respondent did not prove the termination of his employment on balance of probabilities and did not impeach the produced resignation letter. 45.The appeal is allowed. 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. E550 of 2022 is set aside and substituted with a decision that the claim dated 14th March 2022 is dismissed with costs to the respondent. 46.The appellant is awarded the costs of the appeal. 47.It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 19TH JUNE, 2026.JEMIMAH KELI,JUDGEIn The Presence Of:Court Assistant: OtienoAppellant – Waweru h/b WachiraRespondent –Nyambane