Gachie v Phonelink Limited (Appeal E270 of 2024) [2026] KEELRC 1517 (KLR) (29 May 2026) (Judgment)

Gachie v Phonelink Limited (Appeal E270 of 2024) [2026] KEELRC 1517 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1517 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Appeal E270 of 2024 NJ Abuodha, J May 29, 2026 Between Beatrice W Gachie Appellant and Phonelink Limited Respondent (Being an Appeal arising out of the Decree emanating from the Judgment of Hon. L. B. Koech [S.P.M] which was delivered on 20th August, 2024 in Milimani C.M.E.L.R. Cause No. E465 OF 2021) Judgment 1.Through the Memorandum of Appeal dated 11th September, 2024 the Appellant appeals against the entire decree emanating from the Judgment of Hon. L.B Koech delivered on 20th August,2024. 2.The Appeal was based on the grounds that:i.That the learned trial magistrate erred in law and fact by ignoring the fact that 12th July, 2020 was the Appellant’s protected statutory rest day after six consecutive days of work and by making an erroneous finding that the Appellant ought to have put an extra shift of to work during her protected statutory rest day, made an erroneous finding that not only violated the Appellant’s protected right to statutory rest day, after six [6] consecutive days of work but also punished the Appellant for exercising a right granted to her under the law.ii.That the learned trial magistrate erred in law and fact by ignoring the fact that 12th July, 2020 was a Sunday, which was the Appellant’s day of worship, and by making an erroneous determination that the Appellant ought to have put an extra shift of work on her worship day, when other employees of the Respondent had been granted their off day to exercise their right to worship, made an erroneous finding that not only violated the Appellant’s right to worship but equally discriminated against her.iii.That the learned trial magistrate erred in law and fact by ignoring the fact that no written employment contract was executed by the Appellant and by doing so made an erroneous finding with the effect that the unsigned letter of appointment dated 4th August, 2016 constituted a valid written employment contract, which was contrary to Section 9 [1- 3] of the Employment Act No. 11 of 2007 and by doing so placed the burden of proving the terms of employment upon the Appellant which was contrary to section 10 [1] of the Employment Act No. 11 of 2007.iv.That the learned trial magistrate erred in law and fact by relying on wrong pleadings which had been amended and by doing so rendered an erroneous judgment based on amended particulars.v.The learned trial magistrate erred in law and fact in holding that the termination of the Appellant’s employment was procedurally fair when in fact;a.The Respondent deliberately never called any witness during the disciplinary hearing to rebut the Appellant’s claim of having sustained injuries on the 11th July, 2020 while working and notification of the same and inability to put an extra shift of work to her immediate boss Mr. Jaimin;b.The Respondent had by deliberately failing to call witness during the disciplinary hearing denied the Appellant the right to challenge the veracity of evidence it had against her through cross examining the witness;c.The Respondent conducted a cosmetic, sham disciplinary hearing with a predetermined outcome when it resorted to concealed unilateral further deliberations, deliberations which not only denied the Appellant an opportunity to challenge the Respondent assertions but also condemned her unheard;d.The Respondent deliberately submitted disciplinary minutes that left out the Appellant’s verbal responses which were noted down by the Respondent’s presentative Mrs. Diana Etunya;e.The Appellant’s accuser was equally the prosecutor and judge;vi.That the learned trial magistrate erred in law and fact by substituting the grounds for termination of the Appellant’s employment.vii.That the learned trial magistrate erred in law and fact in making a finding that the Appellant had not disclosed that she would not be putting an extra shift of work on her statutory rest day and worship day when in fact;a.The Appellant had on the evening of 11th July, 2020 notified her immediate boss and supervisor Mr. Jaimin of her injuries and inability to put an extra shift of work on her statutory rest and worship day [12th July, 2020]; andb.The Respondent had deliberately failed to call Mr. Jaimin to rebut the Appellant’s notification despite him being under its employment during both the disciplinary hearing and hearing of this suit;c.The Respondent had deliberately failed to call either the Appellant’s colleagues who she worked with on the 11th July, 2020 to rebut the allegations that the Appellant had sustained injuries on the 11th July, 2020 while working despite the Appellant’s colleagues still being under its employment during both the disciplinary hearing and hearing of this suit; andd.That Respondent had deliberately failed to call its representative during the disciplinary hearing Mrs. Diana Etunya who observed the Appellant to rebut the allegation of having been injured despite Mrs. Diana Etunya still being under its employment during both the disciplinary hearing and hearing of this suit.viii.The learned trial magistrate erred in law and fact by making a blanket finding that the Appellant’s medical documents were doctored when in fact the Respondent’s witness had admitted as follows;a.That both the medical card and payment receipt had emanated from the hospital;b.That it is only the medical officers who treated the Appellant on the material days who could confirm with certainty whether they treated the Appellant on the material days and made entries on the medical card;c.That she did not bother to find out from the medical officers who were present on the material days when the Appellant was treated at the health facility on their position regarding the entries on the medical card;d.That she did not bother to contact the Appellant to find out her position prior to writing her letter dated 4th October, 2021;e.That she did not bother to consult the accounts regarding payment receipt issued to the Appellant;f.That it is common for patient records as recorded in the medical documents by medical officers to miss and/or vary in the register;g.That she was neither an employee of the hospital nor a witness before the disciplinary hearing in the year 2020 when the Appellant was taken through the disciplinary hearing and subsequently terminated;h.That she did not have a letter from the hospital authorizing her to testify in court regarding the Appellant’s medical documents;i.That the letter dated 4th October, 2021 which she wrote one year after termination of the Appellant’s employment did not mean that the medical documents were forged, altered, and/or false; andj.That no allegations of forgery, alteration and/or falsification of medical documents had ever been lodged against the Appellant by the hospital;ix.That the learned trial magistrate erred in law and fact in placing the burden of justifying the validity or propriety of the grounds and/or reasons for the termination upon the Appellant contrary to Sections 43 and 47[5] of the Employment Act No. 11 of 2007.x.That the learned trial magistrate erred in law and fact in failing to consider adequately or at all the Appellant’s submission and the authorities that had been tendered and in so doing arrived at an erroneous decision.xi.That the learned trial magistrate erred in law and fact in awarding the costs to the Respondent contrary to established precedent in employment matters. 3.The Appellant prayed that the Appeal be allowed and the Judgment of the learned trial Magistrate be set aside; this Honourable Court does proceed to make a declaration that the Appellant’s termination was unlawful and unfair and assess the quantum of damages payable and the costs of this Appeal and the costs for the trial court be awarded to the Appellant. 4.The Appeal was disposed of by written submissions. Appellant’s Submissions 5.The Appellant’s Advocates Ong’ato, Ochieng’ & Company Advocates filed written submissions dated 24th October, 2025. Counsel relied on the case of Court of Appeal Civil Appeal No. 71 of 2017 at Nakuru, Kenya Union of Commercial, Food & Allied Workers -vs- Kisii Bottlers Limited [2021] eKLR on the role of the first appellate court. 6.On the issue of whether the Learned Trial Magistrate erred by relying on the new and/or fresh grounds or reasons for the termination of the Appellant’s employment that were introduced by the Respondent during trial and were not contained in the letter of termination dated 3rd September 2020 counsel submitted that the ground and/or reason for termination of the Appellant’s employment was evident from the Respondent’s letter of termination of employment dated 3rd September, 2020 which was “on account of breach of trust due to your failure to immediately disclose to management your inability to report on duty for an extra shift as instructed by the management based on an alleged accident.” 7.It was submitted to the contrary, at trial, through the evidence of both Mr. Kirit Govindji Jiwandas Sutaria [RW -1] and Grace Mutai [RW - 2], the Respondent maintained that the grounds and/or reasons for termination of the Appellant’s employment were absenteeism and presentation of false medical document. That the letter on termination neither indicated absenteeism nor presentation of false medical documents as the grounds and/or reasons for the termination of the Appellant’s employment. That the grounds and/or reasons for termination of the Appellant’s employment indicated in the letter of termination were inconsistent with the once presented by the Respondent at trial. 8.Counsel relied on the case of ELRC Cause No. E021 of 2022 at Mombasa, Benson Muriithi Kagai -vs- Kenga Equatorial Hotels Limited T/A Mombasa Continental Resort [2024] eKLR where the court emphasized that the employer could not introduce fresh reasons for termination at trial when employee files claim to challenge the fairness of the termination which were not in the termination letter. That it was the ground and/or reason indicated in the Appellant’s letter of termination dated 3/09/2020 that the Respondent was bound to and had the obligation to prove its validity, genuineness or fairness. The trial Court was equally bound by the letter of termination. No new and/or fresh grounds and/or reasons for termination could be introduced at trial. 9.On the issue of whether the Appellant was entitled to one statutory rest day after six consecutive days of work, and if so, did the Learned Trial Magistrate err in holding that it was a valid, fair and/or genuine ground or reason for the Respondent to terminate the Appellant’s employment for failure to put an “extra shift of work” on her statutory day counsel relied on Section 27 [2] of the Employment Act which provides that employees have a right to at least one rest day in every seven days. Further counsel relied on section 74 of the act on the duty of employer to keep records of employee’s weekly rest days as specified Section 27 [2] of the act. 10.It was submitted that the Appellant, in examination in chief and re-examination, testified that she was employed as an account assistant and that she used to work for six [6] consecutive days in a week from Monday to Saturday. That up to the evening of Saturday the 11th July, 2020 when she was being requested to put an “extra shift of work” after getting injured, she had already worked for six [6] consecutive days. That her rest day was on Sundays. That she had never worked or agreed to come to work on her rest day. That it was not a must she put an “extra shift of work” on a Sunday. 11.That on cross-examination, she [Appellant] was firm and reiterated that, since being employed by the Respondent she had never worked during her statutory rest day [on Sundays], that what the Respondent had requested her was to put an “extra shift of work on Sunday of 12th July, 2020 during her statutory rest day to come clean the archives whereas she was not a cleaner. That the Respondent neither disclosed to her its communication regarding its office lease with Nakumatt nor indicated to her that it was vacating its offices due to imminent auction of the Nakumatt Building or due to a notice to vacate. 12.That on the other hand Mr. Kirit Govindji Jiwandas Sutaria [RW -1], when pressed during cross-examination, admitted that the Appellant was legally entitled to one statutory rest day after six consecutive days of work, that on the 11th July, 2020 when the Appellant was requested to put in an “extra shift of work” she had already worked for six consecutive days, that the Appellant never used to work on Sundays [statutory rest day], that the Respondent had not produced any evidence to prove that it had received a notice to vacate its premises on allegations that the Nakumatt building was being auctioned, that it had notified the Appellant of its offices leases and communication with its landlord and lastly that the Respondent had not produced the Appellant’s work attendance sheet or biometrics before the Court. 13.It was further submitted that what emerges from the Respondent’s conduct is the misconception that it had sweeping and/or absolute powers over the Appellant’s hours of work. That any attempt to lawfully resist this assumed exercise of sweeping and/or absolute powers would be met with termination of employment. Threat of termination of employment is therefore being utilized as a tool of coercion to extract forced labor by the Respondent. Counsel relied on section 2 of the Act on definition of forced labour and other laws like the Constitution which were against forced labour. 14.That the Respondent’s conduct was therefore illegal and unless stopped by this Court, the Respondent would continue undeterred and many employees would suffer in silence for fear of victimization. That it was a matter of public notoriety that any auction of properties must be published in the local dailies. Further, the alleged notice to vacate the Nakumatt Building in which the Respondent’s offices was located, the nature of the lease the Respondent had and the decision to relocate the Respondent’s offices were all information and/or facts which were within the special knowledge and custody of the Respondent. 15.Counsel relied on Section 112 of the Evidence Act on burden of proof of facts of special knowledge where this burden was on the Respondent. The Respondent therefore had the burden of proving that alleged auction, notification to vacate the Nakumatt Building and the timelines, relocation of its offices and disclosure of issues regarding its office lease and communication with its landlord to the Appellant but failed to do so. Counsel relied on the case of ELRC Cause No. 809 of 2017 at Nairobi, Nahashon Maina & 5 Others -vs- Central Park Hotel [2021] Eklr, where the Court affirmed the effect of Section 112 of the Evidence Act. 16.On the second limb of this issue of whether it was valid, genuine and/or fair for the Respondent to terminate the Appellant’s employment on grounds and/or reasons that she failed to put an “extra shift of work” on her statutory rest day [Sunday] counsel relied on the case of ELRC No. 1620 of 2018 at Nairobi, Scoline Anyango Ajung’a -vs- Healthlink Matcare Ltd T/A Nairobi Women Hospital [2023] eKLR where the court affirmed the employee’s right to statutory rest day. 17.Counsel submitted that 12th July, 2020 [Sunday] was the Appellant’s statutory rest day. The Appellant was exercising a right guaranteed under the law and therefore could not be punished for lawfully exercising the same. The Respondent in terminating the Appellant’s employment for exercising her statutory right to rest, impeded on her statutory guaranteed right to one rest day after six consecutive days of working. 18.On the issue of whether the Appellant was entitled to her day for worship, and if so, did the Learned Trial Magistrate err in holding that it was a valid, fair and/or genuine ground or reason for the Respondent to terminate the Appellant’s employment for failure to put an “extra shift of work” on her worship day counsel relied on Article 32 of the Constitution which provides for freedom of religion as well as section 5 [3a] of the Employment Act which provides for non-discrimination on account of religion. 19.It was submitted that the right to freedom of religion [right to worship] is therefore not only guaranteed under the Constitution but also protected under the Employment Act. Counsel relied on the case of ELRC No. 1620 of 2018 at Nairobi, Scoline Anyango Ajung’a -vs- Healthlink Matcare Ltd T/A Nairobi Women Hospital, [supra], the Court while faced with a similar situation while holding that termination for failure to come to work on a rest day or worship day was a contravention to constitutional right to worship and freedom of religion. 20.That the Appellant in examination in chief, testified that she used to work for six [6] consecutive days in a week from Monday to Saturday. That up to the evening of Saturday of 11th July, 2020 when she was being requested to put an “extra shift of work”, she had already worked for six [6] consecutive days. That the 12th July 2020 [Sunday] was not only her rest day but also her day of worship being a Christian. That on the other hand, Mr. Kirit Govindji Jiwandas Sutaria [RW - 1] during cross examination acknowledged that the Respondent was aware that the Appellant was a Christian and that she utilized Sundays as her rest day and equally as day of worship. That on his part he professed Hindu religion and the Respondent normally grants him a day to go to the temple to worship. That just like him, the Appellant was equally entitled to her Sunday worship day [12th July, 2020]. 21.It was submitted that the Learned Trial Magistrate erred by completely disregarding the uncontroverted evidence that 12th July 2020 [a Sunday] was the Appellant’s day of worship, and by erroneously finding that she ought to have put an “extra shift of work” on her day of worship, while other employees were granted their off days to exercise that same right. As a result of this erroneous finding, the Learned Trial Magistrate not only issued a judgment that discriminated against the Appellant, but also affirmed the violation of her constitutional right to worship. 22.On the issue of whether the Learned Trial Magistrate erred in failing to rely on the Amended Statement of Claim dated 17th May, 2020 counsel submitted that the Appellant vide a Notice of Motion dated 18th May, 2022 amended her Statement of Claim dated 17th May, 2022. The amendment orders were granted on the 27th June, 2022. That in the entire impugned judgment, the Learned Trial Magistrate doesn’t make any reference to the Amended Statement of Claim but rather renders a decision entirely based on the Statement of Claim dated 3rd March, 2021. Counsel relied on among others the case of Court of Appeal at Kisumu, Civil Appeal No. 53 of 2018, Mary v B Otsyula & Another [Suing as the administrator of the estate of Martha Kavesa Busu] -vs- Zippy Busu Masizah [2022] eKLR the Superior Court set aside an order of striking out a suit on similar grounds of trial court not considering amended Plaint. 23.It was submitted that the Appellant contended that the Learned Trial Magistrate failed to consider her submissions and the authorities she had supplied the Court and by this failure it rendered an erroneous judgment. In her submissions the Appellant unequivocally submitted on the Amended Statement of Claim dated 17th May, 2022. On the other hand, the Respondent in its submissions entirely submitted on the Statement of Claim dated 3rd March, 2021. 24.Counsel submitted that whereas the trial court indicated that it considered the pleadings, evidence, submissions and authorities by the parties that had the Learned Trial Magistrate really considered the pleadings on record, evidence, her submissions and authorities as she indicated in the impugned judgment, she could have noticed that the Statement of Claim had been amended, that both parties had submitted on two different Statements of Claim thus noticed the crucial difference on the submission and further properly directed herself on the authorities that she had supplied. That she did not consider the same. That this error demonstrated that the Learned Trial Magistrate failed to properly consider and analyse her claim based on the pleadings, evidence and submissions she had tendered. 25.On the issue of whether the Learned Trial Magistrate erred in relying on unsigned or unexecuted letter of employment as the basis of the Appellant’s employment terms with the Respondent counsel relied on Section 9 [1- 3] and 10 [1] of the Employment Act while submitting that it was the duty of the Respondent to draw up a contract of employment as per the orally agreed terms and conditions of employment and to have the written employment contract consented to by the Appellant either through a sign of name or imprint thereon an impression of a thumb or one of the fingers in the presence of an independent witness, within a period of two months after commencement of the employment. 26.It was submitted that the Appellant in examination in chief and cross-examination, testified that, she was employed as an account assistant on the 4th August, 2016. That she was to be issued with a written employment contract by the Respondent reflecting the agreed oral employment terms. That at the commencement of her employment, her monthly salary was Kshs. 68,000.00 while on six [6] months’ probation and upon confirmation it was to be raised to Kshs. 78,000.00. 27.That despite her employment being confirmed, her salary was never increased as per the oral employment terms. That she made request through letter dated 10th November, 2016 for the written employment contract severally and adjustment of the proper salary but every time the Respondent requested her to wait and eventually became hostile to her. That it was not until the 5th September, 2019 [three years after commencement of employment] that the Respondent issued her with an improper letter of employment backed dated to 4th August, 2016 which she declined to sign and/or execute as it failed to capture her agreed proper salary. That in declining to execute the improper letter of appointment, she wrote a letter dated 8th September, 2019 demanding for correction letter of appointment to reflect the proper monthly salary to Kshs. 78,000.00. 28.That on other hand Mr. Kirit Govindji Jiwandas Sutaria [RW - 1] when pressed during cross-examination admitted that it was the responsibility of the Respondent’s HR Manager to draft the employment contract for the Appellant. That the Appellant wrote a letter complaining of the salary. That the letter of appointment was issued to the Appellant on the 5th September, 2019 [three years after commencement of employment] but she declined to sign and/or execute it on grounds that it had not captured her proper salary. That the letter of appointment had not been signed and/or executed to by the Appellant. That he was not the one who interviewed the Appellant, consequently, he didn’t know the oral terms and condition of employment the Appellant and the Respondent had orally agreed to as at the time of her employment in 2016, and he was therefore not at a position to dispute the Appellant’s claim on salary. That up to the time of termination, the Respondent had not addressed the Appellant’s salary issue. 29.That however, despite the Appellant not signing and/or executing the letter of appointment, Mr. Kirit Govindji Jiwandas Sutaria [RW-1] insisted that the Court should rely on the same as the basis of Appellant’s employment terms. That the Appellant having been employed on the 4th August, 2016, ought to have been issued with an employment contract within two months after commencement of her employment which ought to have been on or before the 4th October, 2016. 30.That no explanation was given by the Respondent for either the late issuance of the letter of appointment or failure to address the Appellant’s salary adjustment as per her agreed oral terms during her employment interview despite her declining to execute the letter of appointment and demanding for the adjustment. That it was undisputed based on the foregoing, that no written employment contract was executed between the Appellant and the Respondent and that during the entire period of employment there was a dispute regarding [salary terms] the proper monthly salary of Appellant which dispute was remained unresolved as at the time of termination. 31.Counsel relied on among others the case of ELRC Cause No. 32 of 2019 at Nakuru, Castro Momanyi Ondieki -v- Kenya Methodist University [2021] eKLR, the Court while dealing with a similar issue, held that unsigned and/or unexecuted contracts could not be relied on as the basis of employment terms. 32.That the alleged letter of appointment having not been executed by the Appellant as demanded under Section 9 [3] of the Employment Act it therefore lacks the Appellant’s consent. It is invalid and therefore can’t be relied on by the Court as the basis of the Appellant’s employment terms. Consequently, as held in the ELRC Cause No. 32 of 2022 at Eldoret, Joachim Muli Kimoja -vs- Rai Plywood [K] Limited [supra] the Appellant’s employment was guided by the oral terms as agreed during her interview with the Respondent. 33.On the effect of the lack of a written employment contract between the Appellant and the Respondent counsel relied on Section 10 [6 & 7] and 74 of the Employment Act on the burden of keeping, producing employment records and proving or disproving an alleged term and conditions of employment [if documents are not produced] which was placed upon the Respondent. That this was the position adopted in ELRC Cause No. 363 of 2015 at Kisumu, Alice M'mboga Ogolla -vs- Nyayo Tea Zones Development Authority [2017] eKLR. 34.It was submitted that the Respondent neither denied that the persons who interviewed the Appellant were still under its employment nor that the interview minutes were no longer in its custody. No reasons were given why the individuals who interviewed the Appellant [during employment] could not be called as witness or why the employment interview minutes could not be produced before this court. Consequently, what therefore remained as the basis of employment, were the oral terms and conditions of employment she presented. 35.Counsel relied on among others the case of ELRC Cause No. 136 of 2018 at Eldoret, Abigael Jepkosgei Yator & Another -vs- China Hanan International Co. Ltd [2018] eKLR where the court held that where work records are not produced, any claim made by an employee with regard to terms and conditions of employment must be taken as the truth. The submission of work records was a legal requirement. 36.That in the absence of a written employment contract, Appellant’s employment interview minutes and the witness testimony of the persons who interviewed the Appellant, the employment of the Appellant was vide oral employment contract and that her testimony that her orally agreed monthly salary was Kshs. 68,000.00 while on six [6] months’ probation and upon confirmation it was to be raised to Kshs. 78,000.00 which despite her employment being confirmed, was never increased as per the oral employment terms and conditions remained uncontroverted and must be taken as the truth. 37.On the issue of whether termination of the Appellant’s employment was both substantively and procedurally fair on substantive test counsel relied on section 43 and 47(5) to submit that the burden of proving the grounds and/or reasons for the termination of the Appellant’s employment rested on the Respondent. That as observed above a duty bearer could not be said to have established a valid reason to terminate an employee’s contract of service if all that is shown was an attempt to impede the employee’s enjoyment of a constitutional right which was her right of worship and freedom of religion. That the Respondent did not have valid and fair grounds to terminate the Appellant’s service as it could not introduce new grounds during trial as seen above. 38.It was submitted that for this to qualify as a valid, genuine and/or fair reason for termination of the Appellant’s employment, the Respondent ought to have proved that the Appellant failed to immediately disclose to the management her inability to put an extra shift of work on the 12th July, 2020 [a Sunday]. That the Appellant having worked for six days and Sunday being her rest day as well her worship day as submitted above this could not be a valid ground. That she did inform her immediate supervisor Mr. Jaimin who was not called as a witness before the trial court to clarify this fact. 39.That however, despite the Appellant disclosing that she had immediately notified Mr. Jaimin on the 11th July, 2020 of her inability to put an extra shift of work on the Sunday the 12th July, 2020, the Respondent neither bothered to seek his position on the same nor call him to testify both at the disciplinary hearing and before Court. Counsel relied on the case of ELRC Cause No. 327 of 2013 at Nairobi, Vincent Nyachibwede -vs- Bob Morgan Services Limited [2018] eKLR, where the Court found termination to be substantively flawed for failure of the witnesses to testify in support of the employer’s allegations. 40.It was submitted that albeit erroneously, the Learned Trial Magistrate’s basis of holding that the Respondent had allegedly proved the validity, genuineness and/or fairness of the grounds and/or reason for termination of the Appellant’s employment heavily relied on the testimony of Grace Mutai [RW- 2] to the effect that the Appellant’s medical documents did not exist in the records of Ruiru Level 5 Hospital where she was treated. 41.Counsel submitted that as seen above that the Learned Trial Magistrate erred in relying on new and/or fresh ground and/or reason for termination introduced at trial and not indicated in the letter of termination dated 3rd September, 2020. This purported new and/or fresh ground and/or reason for termination introduced at trial by the Respondent was therefore not available for consideration by the Court. 42.That in her entire testimony, the Appellant, maintained that she suffered a deep cut finger injury on the Saturday of 11th July, 2020 following which she sought treatment at Ruiru Level 5 Hospital on the Sunday of 12th July, 2020 and further on the 16th July, 2020 and produced her medical documents to support the same. That she was issued with all the medical documents from the hospital. That at the hospital she was treated by a gentleman whom she could be able to identify if presented to Court by the Hospital. 43.That she has never been reported to the police nor charged with any offence in relation to the allegation that her medical documents were false, forged and/or illegally obtained by the hospital. That it was strange how in the year 2020 when the disciplinary hearing was held, the medical documents were proper, but one year later after filing this suit, the same now changed to be false based on a letter obtained from the alleged Grace Mutai [RW-2]. That the allegation by the Respondent against her medical documents were contrived with the help of the said Grace Mutai [RW- 2] to defeat her lawful claim. 44.It was submitted that the alleged Grace Mutai [RW-2], during cross examination did not do justice to the Respondent’s allegation on this aspect, she admitted that she had not attached any letter of authority from the hospital allowing her to write that alleged letter or appear in Court on its behalf. That there was nothing before Court to show that she was an employee of the hospital. That she was not the medical personnel who treated the Appellant both on the 12th July, 2020 and 16th July, 2020. That it was only the medical officer who treated the Appellant on the 12th July, 2020 and 16th July, 2020 who could disprove her treatment at the facility and the entries made in the medical documents. 45.That she was not a witness at the Appellant’s disciplinary hearing. That the letter dated 4th October, 2021 which she wrote, doesn’t deny that the Appellant was indeed subsequently seen and/or treated at the facility on the 16th July, 2020. That she did not bother to hear from the Appellant before she wrote her letter dated 4th October, 2021. That the statement she wrote in her letter dated 4th October, 2021 was not synonymous to the medical document being false and/or forged. 46.That this letter was obtained one year after termination of the Appellant’s employment. That she was in agreement that in the normal procedure of keeping records details or particulars were normally missed, which was a normal occurrence. The Appellant’s situation could not be ruled out. That the hospital payment receipt dated 16th July, 2020 had the Appellant’s name and that it came from the hospital. That she had not produced any documents from the accounts department to deny the hospital bill payment receipt. That she had not bothered to copy the letter with the other relevant and concerned departments of the hospital. That the hospital had never reported the Appellant on any allegations of falsification, alteration and/or forgery of medical documents to the police. 47.That Mr. Kirit Govindji Jiwandas Sutaria [RW- 1], on his part, unequivocally admitted that Grace Mutai [RW - 2] was never called to testify at the disciplinary hearing in the year 2020, that the alleged letter written by grace was obtained one year after termination of the Appellant’s employment and after filing of this suit, and that he was not aware of any criminal charges against the Appellant on allegations of having forged, falsified and/or altered the medical documents. 48.Counsel relied on among others the case of High Court Civil Suit No. 31 of 2008 at Malindi, Sudhaben Shah & Another -vs- Faruk Swaleh Baya & 5 Others [2010] eKLR to submit that the letter on the forgery was just an afterthought did one year after the Appellant’s termination. That neither a report had ever been made to the police nor charges ever been preferred against the Appellant regarding the allegations that the medical documents were false, altered and/or forged. Grace Mutai [RW-2] was very hesitant to make that conclusion because she was aware, that no such position had been taken by the hospital. 49.That further, an injury to the left hand [cut on the finger] is easily noticeable. The Appellant had revealed to her immediate boss Mr. Jaimin that she had been injured on her left hand [sustained a cut] while working on the 11th July, 2024 with her colleagues. Despite this revelation, none of the Appellant’s colleagues who she worked with on the 11th July, 2020 when she got injured, Mr. Jaimin whom she disclosed to the injury and Respondent’s representative before the disciplinary panel challenged the Appellant’s evidence of having sustained an injury. 50.It was submitted that the letter dated 4th October, 2021 was an afterthought deliberately procured by the Respondent as an attempt to frustrate this case. That an injury on the left hand [finger] was something that the Respondent could have been able to examine and disprove with keen diligence. The allegations of falsification, alteration and/or forgery of medical documents were therefore untrue and unproved. The Learned Trial Magistrate was therefore in error in putting reliance to the same as a justification for termination of the Appellant’s employment and further shifting the burden of proof of this allegation on the Appellant by insisting she had the duty of proving and/or disproving that this allegation was not true. 51.On the Procedural Test counsel relied on section 45(2)(c) of the Employment Act which provides that termination of employment was unfair if not done in accordance with fair procedure under section 41 of the said Act. Counsel relied on among others the case of Court of Appeal Civil Appeal No. 163 of 2017 at Nairobi, New Kenya Co-op Creameries Limited -vs- Olga Auma Adede [2019] eKLR, which emphasized on adherence of section 41 of the Act which is mandatory. 52.That it followed therefore that the Respondent not only ought to have called its witnesses in support of the allegations but also should have granted the Appellant an opportunity to challenge and test the veracity of the allegation against her in an oral disciplinary hearing through cross-examination. The Appellant in examination in-chief testified that at the disciplinary hearing only three people were present. Specifically, herself, her witness and the Human Resource Manager representing the Respondent. That no witnesses were called by the Respondent to substantiate the allegations against her. That by failing to call its witnesses, the Respondent denied her an opportunity to test the veracity of the witnesses’ evidence through cross-examination and by doing so denied her the right to fair hearing which ultimately rendered the termination procedure improper. 53.Counsel relied on the case of ELRC Cause No. 1187 of 2014 at Nairobi, Solomon Akanga -vs- Capital Markets Authority [2022] eKLR, Honorable Justice Mathews N. Nduma while holding that termination of employment was procedurally unfair for failure by the employer to call witnesses in support of its allegations. The Learned Trial Magistrate was therefore in error to hold that the procedure adopted in terminating the Appellant’s employment was proper when she had been denied and opportunity to test the veracity of the Respondent’s witness’s testimony at the disciplinary hearing through cross-examination. 54.On the issue of whether the Appellant was entitled to the reliefs sought for compensation for unfair and unlawful termination, counsel submitted that upon a finding of unfair termination of employment, the law entitled the Appellant to compensation under section 49 [1) [c] and 4 of the Employment Act. That in awarding the same, the Court ought to take into account all the circumstances of each case in awarding damages for unfair termination of employment. Counsel relied on the case of ELRC No. 1712 OF 2014 at Nairobi, Angela Wokabi Muoki -vs- Tribe Hotel Limited [2016] eKLR where the court awarded the claimant 12 months’ salary as damages for unfair termination. The Appellant herein had worked for 5 years. 55.That in the instant case, the Respondent conducted a sham and cosmetic disciplinary hearing with a predetermined outcome. The Appellant had demonstrated that termination of her employment was unlawful and unfair both substantively and procedurally. Because of the crude malice evident from the way the Respondent handled the Appellant, in callous disregard to her right to fair labor practices, the Appellant was entitled an award of 12 months’ salary computed as follows; Kshs. 78,000.00 X 12 months=Kshs. 936,000.00 56.On payment in lieu of leave [14 days] counsel submitted that leave was an entitlement under section 28 of the Act. That in support of this claim, the Appellant during both examinations in-chief and cross-examination, testified that as at the time of termination of her employment, she had pending leave totaling to twenty-seven and half days [27.5]. That the Respondent only made payments for thirteen and half days [13.5] leaving fourteen days [14] unpaid. That the Respondent as the custodian of employment records failed to do produce records of the Appellant going for leave or payment in lieu of the same as required by section 10(7) and 74(1f) of the act. Counsel relied on the case of ELRC Appeal No. E075 of 2022 at Mombasa, Mombasa Coffee Limited -vs- Mtenzie Mwagambi Shuke [2024] eKLR, Honorable Lady Justice Agnes Kitiku Nzei while awarding payment for unpaid leave for fifteen [15] years emphasized on employer keeping records for leave entitlement by an employee. That the correctness of the pleaded amount having equally not been controverted by the Respondent, the Appellant is entitled to the pleaded payment in lieu of leave [14 days] of Kshs. 36,400.00. 57.On wrongfully deducted and withheld salary for Kshs. 3,000.00 counsel submitted that salaries and wages were an employee’s legal entitlements which are protected under the law from the arbitrary capricious acts of an employer. Whereas section 18 [4] dictates that an employee SHALL upon termination be paid be paid all moneys, allowances and benefits due to him/her up to the date of termination, section 25 [1] of the act criminalises wrongful withholding of employee’s salary or wages upon termination. 58.That the Appellant in examination in chief, testified, that in March, 2020 the Respondent wrongfully deducted Kshs. 3,000.00 from her salary. Upon inquiries she was informed that the same hand been deducted due to release of a bounced cheque. She disputed the allegation as she was not on duty on the day the said bounced cheque was alleged to have been released and therefore contended the deduction was wrongful and demanded for a refund but the Respondent kept on taking her in circles. 59.On the other hand, Mr. Kirit Govindji Jiwandas Sutaria [RW - 1] during cross-examination admitted that he didn’t know anything to do with the Appellant’s wrongful deduction of Kshs. 3,000.00 due to a cheque and that the Respondent had not produced the Appellant work attendance sheet or biometrics log in before the Court to demonstrate that the Appellant was on duty and was the one who had released the alleged bounced cheque. 60.That the Respondent’s finance manager having admitted that he was not aware of this claim this claim equally remained uncontroverted. There was no justification for the deductions. The Appellant was entitled to the pleaded wrongfully deducted salary amount of Kshs. 3,000.00. 61.On Overtime counsel submitted that the Appellant pleaded for overtime of Kshs. 2,311.00. In support of this prayer, the Appellant both in examination in-chief and cross-examination, testified that she worked overtime on the 11th July, 2020 but wasn’t remunerated for the same. That this was a Saturday, a day when she normally works half a day. That all employees were entitled to overtime payment. On the other hand, the Respondent’s Finance Manager Mr. Kirit Govindji Jiwandas Sutaria [RW-1] was silent on this claim. The evidence of the Appellant was therefore uncontroverted. That it was not in dispute that the Appellant used to work half a day on Saturdays. It was also not in dispute that the Appellant worked on the 11th July, 2020 until evening and was therefore entitled to overtime payment. The Appellant indeed worked overtime on this day for which she deserved remuneration. 62.On Salary arrears counsel submitted that the Appellant pleaded for salary arrears of Kshs. 871,628.00 being the difference of the amount she was paid and what she ought to have been paid pursuant to her oral employment contract from the year in 2016 up to termination of her employment in 2020. That as demonstrated herein before, the Respondent had a statutory obligation to issue the Appellant with a proper written employment contract with two months of beginning work pursuant to section 10[1] of the Employment Act, but deliberately failed to do so. The employment contract could not be relied upon having been not signed by the Appellant. Oral terms were applicable and the Appellant’s word would be taken as truth. The Appellant’s evidence that her orally agreed monthly salary ought to have been Kshs. 68,000.00 while on six [6] months’ probation and upon confirmation it was to be raised to Kshs. 78,000.00 [which was never done despite her complaints] must be taken as the truth. 63.It was submitted that the Respondent by paying the Appellant a different salary below what had been agreed despite her complaints and demands for adjustment, was an act of unfair labor practice that ought not to be allowed. Reliance was placed on the case of ELRC Cause No. 19 of 2014 at Kisumu, Fred J Owuor alias Fred O J Owuor -vs- Tee Institute of Management Limited [2017] eKLR, Honorable Lady Justice Maureen Onyango held that unilateral change of salary by an employer amounted to unfair labor practice and thereby used the proper salary to compute the awards. That other than insisting that the Appellant’s proper salary was as per the disputed payslips, the Respondent didn’t dispute this tabulation as being the proper salary arrears. The correctness of the pleaded amount therefore was uncontroverted. 64.On Certificate of service counsel submitted that it was trite law that issuance of a certificate of service was mandatory on the part of the employer and was not dependent on any condition’s precedent on the part of the employee as per section 51 of the Act. That despite the Learned Trial Magistrate directing the Respondent to issue the Appellant with a certificate of service none had been issued. Respondent’s Submissions 65.The Respondent’s Advocates, Ramadhan Mukira & Company Advocates filed written submissions dated 23rd January, 2026. 66.On the issue of whether new and/or fresh grounds or reasons for the termination of the Appellant’s employment were introduced by the Respondent during trial and were not contained in the letter of termination dated 3rd September 2020 counsel submitted that the role of this court as the first appellate court was to interrogate and re-evaluate the facts and evidence and draw its conclusions as was stated in the case of Peters v Sunday Post Limited [1958] EA 424. 67.Counsel briefly highlighted the chronology of events being that the Court did not have the benefit of seeing or hearing the Appellant’s testimony by submitting that on Sunday 12th July 2020, the Respondent requested all employees to report to work on said date to arrange the archives emphasizing that all who reported were to be reimbursed and to be remunerated for overtime. Further, those who failed to report ought not to report to work on Monday. 68.That all employees reported to work on Sunday and were remunerated for working overtime save for the Appellant, who failed to report on the aforementioned date. The Respondent’s efforts of attempting to reach her bore no fruits. It was not unusual for the employees to work on Sunday, moreover this being an urgent matter in which Nakumatt was facing auction due to insolvency issues and that the Respondent company was situate within Nakumatt, it was prudent that the Respondent cleared out as fast as possible, hence its employees were requested to assist on the aforesaid day. 69.That the Appellant later claimed that she opted to seek medical attention following a cut she had suffered caused by a metal binding the previous day, while arranging the archives. She did not inform her supervisor that she intended to seek medical attention following an injury, even after the Respondent attempted to reach her severally and failed. The issue of medical attention was an afterthought, the Respondent having made an inquiry concerning her absence, on Monday. 70.That the record shows that she made no efforts in trying to communicate to the Respondent even after discovering that the Respondent tried to reach her. The Respondent vide a letter dated 13th July 2020, invited the Appellant to show cause why disciplinary action should not be taken for her desertion of duty/absenteeism. The notice to show cause letter was indeed served upon the Appellant via email. The Respondent further informed the Appellant vide a letter dated 13th July 2020, that she would remain on a 7 days suspension until deliberation of the notice to show cause was concluded. 71.That the Appellant responded to the notice show cause and further produced fraudulent medical chits evidencing her visit to Ruiru Sub-County Hospital for medical services on 12th July 2020. Subject to Clause 7 of the Appellant’s Letter of Appointment and HR Policy, the Appellant was required to inform her supervisor immediately and produce any medical certificate signed by an approved doctor. The Respondent upon examining the medical chits furnished by the Appellant, discovered inconsistencies in the same, which it was obligated to interrogate further. The Respondent afforded the Appellant an opportunity to address herself on these inconsistencies on the medical chits to which she stated she had no further response. A fact that remained uncontroverted. 72.That the Appellant’s explanation being unsatisfactory, it behoved the Respondent to conduct further investigations on the presented medical chits to ensure fair hearing. The import of the above brief chronology of events was to show this Honourable Court that, the gross misconduct, inconsistencies, submission of fraudulent medical documents, the dishonesty of it all by the Appellant compounded to termination on the ground of breach of trust. 73.Counsel submitted that the issues therein were not novel in view of the fact that the issues were brought to the attention of the Appellant in the Show Cause letter, examined during the disciplinary hearing and not during trial as suggested. These letters were adduced as evidence as part of the Respondent’s List of Documents. 74.That the Appellant was served with the documents before trial commenced and had the opportunity to cross-examine the Respondent on the same. To say that the trial court was limited to the reasons stated in the termination letter was misleading and erroneous. This was an attempt by the Appellant to say that she was ambushed by the reasons for termination during trial, when in fact she was aware from the onset. 75.That this court was obligated to consider facts and evidence holistically, including the grounds raised and examined during the disciplinary hearing and the Appellant’s response thereto. Further, this Honourable Court was obligated to look beyond the termination letter in order to arrive at a just decision. This was because the disciplinary hearing was the forum where the employee was given an opportunity to respond to the allegations, and the employer must prove that the reasons relied upon at the hearing genuinely exist and justify the termination. 76.Limiting any court’s consideration to only the termination letter without examining the grounds raised and addressed during the disciplinary process would undermine the fairness and procedural requirements enshrined in Section 41 of the Employment Act. Counsel relied on the case of Darius Kiseu Mwamburi v Co-operative Bank of Kenya Ltd [2021] KEELRC 611 (KLR) where the court found that the court had to go further while addressing procedural fairness and derive the reason for termination from the disciplinary hearing. 77.It was submitted that the reason for termination was consistent with the allegations which were the subject matter of the Appellant’s disciplinary hearing. The Appellant was dwelling on semantics in a frivolous attempt to build her case at this appellate stage. In any event, the Respondent took all the statutory steps to ensure that the Appellant was afforded an opportunity to be heard on all the allegations. That the Learned Magistrate correctly analysed this issue in stating that the reason for termination was evidenced by the Appellant, as she admitted that she failed to communicate, which was consistent with the reason on the termination letter. 78.On the issue of whether the Appellant was entitled to one statutory rest day after six consecutive days of work and whether the Learned Magistrate erred in holding that it was a valid reason for the Respondent to terminate the Appellant’s employment for failure to put an “extra shift of work” on her statutory day counsel relied on Section 27 of the Employment Act on employee being entitled to one rest day in every seven days. 79.That it further obligates the employer to regulate the working hours of each employee according to the provisions of the Act. Counsel further submitted that Regulation 5 of the Regulation of Wages (General) Order stipulates that normal working hours consists of 52 hours spread over 6 days of the week. That the Appellant in her submissions during the disciplinary hearing stated that she received an email from the Respondent on 9th July 2020, which stated that everyone was to report on Saturday 11th July 2020 and Sunday 12th July 2020. That Sunday 12th July 2020 was a rest day for her nanny, not hers. 80.That according to Clause 5 of the Letter of Appointment, the Appellant was required to work 45 hours per week. The import of this clause was that there was no requirement for the employees to strictly work from Monday to Friday like many employment institutions, here, the employees could work during the weekends so long as they attain the required 45 hours. The Appellant had sufficient notice of the request to work an extra shift on 9th July 2020, however, she failed to inform her supervisor or the director of the Respondent in good time, that she would not be able to report to work on Sunday or Saturday, for that matter, because it was her rest day, having attained the 45 hours. 81.That if calculated, it meant that the employees worked for five days to attain the 45 hours per week. Any five days of their choosing. That Clause 5 further states that permission for off days must be sought from management at least 3 days in advance. The record shows that no permission for an off day was sought by the Appellant on the very day all employees were asked to report on Sunday. Further, it was her testimony during cross-examination that she did not inform her supervisor that Sunday or Saturday would be her rest day. That she proceeded to report to work on Saturday and failed to report on Sunday without any sort of communication. 82.That evidently statutory rest day does not automatically fall on Sunday. It could be any day of the week, so long as the same is communicated to management in advance. In the instant case, the Respondent was not aware that the Appellant’s rest day was on Sunday as there was no evidence to show that it was notified of this arrangement. In fact, nowhere in the record, does the Respondent admit that the Appellant never used to work on Sunday neither does it state that Sunday was the Appellant’s assigned rest day. 83.It was submitted that that it is the primary responsibility of the employee to communicate their absence to the employer. It was required that the Appellant must report to HR Manager, in the event she would not report to work on her rest day, as testified by Kirit Govindji Sutaria. Further, the Appellant, in her submissions stated that she informed her supervisor she will not be able to report on Sunday (without valid reasons) in the presence of other staff members, however, she did not call any witness to corroborate this account. 84.Counsel relied on the case of Richard Cheruiyot Sigei v Bliss Flora Firm Limited [2018] KEELRC 1052 (KLR) to submit that, absence from work on a day not a rest day as scheduled by the employer was sufficient reason for summary dismissal under the provisions of section 44(3) read together with section 44(4). 85.It was submitted that there was no threat of termination of employment by the Respondent. The Appellant was not singled out or targeted in any way, the request to put in an extra shift applied to all the staff, who reported to work and were remunerated. That the Appellant’s employment was not terminated because she failed to report to work on her rest day. This was a different matter entirely. That the Learned Magistrate did not err in finding that the Appellant’s termination was valid on account of failing to put an extra shift of work on the Appellant’s statutory day, but on account of failing to communicate her inability to report on a working day. 86.On the issue of whether the Appellant was entitled to her day of worship and whether the Learned Magistrate erred in holding that it was a valid reason for the Respondent to terminate the Appellant’s employment for failure to put an “extra shift of work” on her day of worship counsel submitted that it was now trite law that a party was bound by their pleadings. Nowhere in the Appellant’s Statement of Claim, did the Appellant claim entitlement to her day of worship as a relief or declaratory order. Clearly, no further amendment was done to capture this issue in any of the pleadings. The Respondent raised an objection to the examination of this issue on this ground. 87.Counsel relied on the case of Sombo & others & 4 others (Suing on behalf of 15,000 individuals of Amwezi and Mrima Clans of the Duruma Community) v Nyari Investments (1998) Limited & 5 others [2024] KESC 14 (KLR) to submit that a party was bound by their pleadings. That the Appellant must not be allowed to fine-tune and fill gaps in her case at the eleventh hour, worse still, at the appellate stage. The reason the Learned Magistrate did not pronounce himself under this head, was because the same did not arise. This Court cannot therefore countenance such frivolous attempts and abuse of court process. Counsel relied on the case of Salat v Independent Electoral and Boundaries Commission & 7 others [2015] KESC 31 (KLR) on not introducing matters which were not before the court. 88.It was submitted that the Appellant contended that she was entitled to her freedom of religion subject to article 32 of the Constitution. The Appellant submitted that she testified that she could not put an extra shift on 12th July 2020 because she had to go to church, this was communicated verbally and in her written submissions during the disciplinary hearing. 89.That firstly, according to the record, the Appellant in her submissions during the disciplinary hearing, clearly stated that the extra shift would have denied her nanny her freedom of worship, not her. The Appellant does not mention anywhere that she went to church or had to go to church. This was also captured during cross-examination, when she testified that she did not inform the Respondent that Sunday was her day of worship or she would not report to work because she had to go to church. In fact, she affirmed that Sunday was the day of worship for her nanny, not herself. 90.That secondly, the Appellant testified that on that same day, she allegedly went to hospital to treat an injury. Again, evidence showed that she did not inform anyone that she will be visiting hospital on the day she was asked to put an extra shift. She testified that she went to hospital, not church, and she did not know why the hospital would claim she did not go there. That she was absent from work without a valid reason, which justified termination. The issue of her right to religion was introduced conveniently, the Appellant having been caught in lies and failed to prove to the trial court her failure to immediately disclose to management her inability to report to work on that Sunday. Notwithstanding the fact that she testified under oath. 91.Counsel relied on the case of Abdul v Mokua [2025] KEHC 4105 (KLR) to submit that the Appellant ought to have provided evidence of the incident. That the conduct of the Appellant during employment and trial, lack of consistency in her accounts and lack of evidence, is what informed the Learned Magistrate’s decision in finding that the Appellant’s basis for not reporting to work was hoisted on lies. That the Learned Magistrate did not find that the Appellant ought to have put an extra shift of work on her day of worship, anywhere in her judgment. That this was because, this was not an issue that was pleaded or particularized by the Appellant. 92.On the issue of whether the Learned Magistrate erred in failing to rely on the Amended Statement of Claim dated 17th May, 2020 counsel submitted that the Appellant’s application dated 18th May 2022 stated that the nature and extent of the proposed amendments was to, verbatim, ‘insert better particulars to my already pleaded causes of action’. The particulars referred to the cause of action that her termination was substantively and procedurally unfair. 93.That firstly, Order 8 Rule 1 of the Civil Procedure Rules dictated that once a party is granted leave to amend a pleading, the amended pleading ought to be formally filed and served so that the adverse party can respond by equally amending their pleading. For pleading to deemed properly filed, it needed to paid for. The Appellant had not adduced any evidence showing payment was done. A perusal of the Record of Appeal, it is unclear whether the Appellant formally filed and served her draft amended Statement of Claim for consideration by the Learned Magistrate. The “Amended” Statement of Claim referred to in the Record of Appeal was the draft amended Statement of Claim which bears the annexure stamp of the Appellant. The draft amended statement of claim if not formally filed and served, remained as that, a draft. 94.Counsel relied on the case of Kabur Mboke Mutinda v Cooperative Bank (K) Ltd [2005] KEHC 2797 (KLR) on this assertion. That it was only after the filing and service of the amended Statement of Claim can the Respondent then file an Amended Response to the Statement of Claim. Further, Order 8 Rule 7 stipulated that all pleadings should be endorsed with the date of the amendment. The draft Amended Statement of Claim relied on by the Appellant was dated 17th May 2022 whilst the court granted leave to amend on 27th June 2022. 95.That it therefore followed that the draft amended Statement of Claim relied on by the Appellant was not properly before the trial court and by extension, this Honourable Court. The Appellant having failed to properly file and serve their Amended Statement of Claim, it emerged that there was no competent pleading on record. A clear and flagrant violation of court fees procedures by the non-payment. That the draft Statement of Claim being incompetent, it therefore followed that the appeal was incompetent. 96.Counsel relied on the case of Stephen Kithinji Nyaga & Boniface Kimathi Nyaga v Joseph Muchangi Nthiga, David Muriuki Nthiga & Pheris Mutitu Nthiga [2018] KEELC 389 (KLR) to submit that the Learned Magistrate did not consider the draft amended Statement of Claim, as there was nothing to consider. What was on record was the draft amended Statement of Claim which cannot be substituted as the Amended Statement of Claim. 97.That even if this Honourable Court was inclined to find that the draft Statement of Claim was properly on record, the Learned Magistrate considered the pleadings, evidence tendered by the parties, the submissions and the authorities. That the Learned Magistrate in her wisdom, considered these documents with the respect to the cause of action presented by the Appellant, being that, her termination was substantively and procedurally unfair. In fact, in her judgment, the Learned Magistrate tackled this as the first issue. 98.On the issue that the Learned Magistrate did not consider the Appellant’s submissions, it was submitted that it was trite law that submissions could not be substituted for evidence. Counsel relied on the case of Moi v Muriithi & another [2014] KECA 642 (KLR) on this assertion. 99.On the issue of whether the Learned Magistrate erred in relying on unsigned or unexecuted letter of appointment as the basis of the Appellant’s employment terms with the Respondent counsel submitted that the issue arose from the fact that the Appellant requested the Respondent for an increment in her salary from Kshs. 68,000/=, during probation, to Kshs.78,000/=. This being the only term that was disputed by the Appellant, the rest of the terms were fully agreed upon by the Appellant. That courts have since held that the absence and/or failure of an employee to sign the employment contract did not invalidate the contract. 100.Reliance was placed on Section 2 of the Employment Act, on definition of a contract of service and on the case of Reveille Independent LLC vs Anotech International (UK) Limited [2015] EWHC 726 (Comm) to submit that the signature of parties to a written contract was not a precondition to the existence of contractual relations, as a contract can equally be accepted by conduct. 101.That it was not denied by the Appellant that she continued working for the Respondent knowing fully well that she had refused to sign her letter of appointment. It was not denied that the Appellant continued to collect her salary from the Respondent, as stipulated in the Letter of Appointment i.e Kshs. 68,000.00/=. It was not denied that she continued working and collecting her salary every month without ever complaining. That the conduct of parties connoted that the terms of the Letter of Appointment were adhered to by both parties, implying that there existed a contract between the parties. Further the terms in the contract could still apply to the employee, notwithstanding the refusal to sign. 102.That the Appellant’s conduct including remaining in employment and collection of salary without complaining, implies that she had accepted the terms of the Letter of Appointment, as they were. Reliance was placed on the case of Coastal Bottlers Ltd v Karanja [2014] KEIC 732 (KLR) on this assertion. That the Appellant could not be heard to say that the terms contained in the Letter of Appointment did not form the basis of her employment because she refused to sign it, when she in fact conducted herself in manner to suggest that she had accepted the terms therein. Furthermore, it was the Appellant’s testimony that she had a written contract and not an oral contract as submitted. 103.On the issue of salary increment, which was the only term the Appellant disputed, she submitted that the agreement was oral and the Respondent had not disputed this fact. This averment was false and unfounded in totality. The Appellant stated that she had an oral agreement with Respondent. No evidence of such agreement was tendered before the Court. The Respondent testified that, as the Finance Manager, the Appellant’s salary was per the Letter of Appointment as he was not aware of any oral agreement between the Appellant and the Company. 104.Counsel relied on the case of Mmbukha v Osotsi t/a Reliable Cleaning Services (Appeal E161 of 2023) [2025] KEELRC 2769 (KLR) to submit that the Claimant had the burden to prove their case even where the contract was oral in nature. That the burden therefore shifts to the Appellant to prove or disprove that there was indeed an oral agreement that the Respondent was aware of, and that the Respondent failed to act on. The Appellant was not discharged from proving her case by just stating that there was an oral agreement. Without cogent evidence, the position remains as rightfully found by the Learned Magistrate, that the Appellant requested for a salary increment but the same was rejected by the Respondent. 105.On the issue of whether the termination of the Appellant’s employment was unfair on substantive test counsel submitted that the record vividly showed that the Appellant did not call or produce evidence to alleviate the doubt of the Respondent as to the fraudulent medical chits during the disciplinary hearing and by extension to this Honourable Court. Why did she fail to adduce evidence to support the allegation that she honestly visited hospital on 12th July 2020? Or why did she fail to adduce evidence to explain the inconsistencies of the medical chit? Why did she not communicate this to her supervisor beforehand as opposed to outrightly failing to report, like other employees did? All these questions remain unanswered because the Appellant was dishonest. Moreover, the employee bears the primary responsibility to communicate their absence to the employer. 106.It was submitted that the culmination of the Appellant’s actions led to a fundamental breach of trust, hence, the Respondent could not trust her going forward. Reliance was placed on the case of Kenya Plantation & Agricultural Workers Union v Eastern Produce Kenya Limited [2017] eKLR, on dishonesty breaking the trust between employer and employee. 107.It was further submitted that the law does not require the Respondent to establish valid reason or reasons to justify termination on a standard beyond reasonable doubt. Section 43 of the Employment Act only requires that the reason or reasons, for termination of a contract, are matters that the employer, at the time of termination of the contract genuinely believes to exist, and which caused the employer to terminate the services of the employee. Reliance was placed on the case of Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others [2019] KECA 300 (KLR) on the required standard of proof in employment cases. 108.Reliance was also placed on the case of Ithelu v Proto Energy Limited [2025] KEELRC 2744 (KLR) on what a reasonable employer would do on broken trust upon suspicious activities by an employee which the employer believed to have existed. That the Appellant having failed to sufficiently explain her absence and further duping the Respondent by adducing fraudulent medical chits, heightened the suspicion of the Respondent, thereby breaking the trust the Respondent had placed on the Appellant. The Respondent struggled to believe the Appellants due to the doctored medical documents. Hence, the Appellant was forced to call Grace Wangui Mutai, to validate the same. The Learned Magistrate rightfully found that the actions of the Appellant were not that of a litigant acting in good faith. 109.On procedural test counsel submitted that the Appellant was given the notice to show cause vide letter dated 13th July 2020 by the Respondent. The Appellant was put under a 7 days suspension. She was required to respond to why she failed to report to work on the said date and why disciplinary actions should not be taken against her. The Appellant responded vide email correspondence dated 16th July 2020, stating that she needed medical attention and that she was not entitled to disciplinary actions as she had worked overtime on previous days. 110.That on 20th July 2020, the Respondent further issued a notice to show cause to the Appellant regarding the inconsistencies discovered on the medical documents she provided the Respondent. The Appellant was invited to clarify the same and her suspension was extended further pending inquiry. The Appellant responded vide email dated 29th July 2020, stating that she had no further response concerning her absence. The Respondent proceeded to invite the Appellant for a disciplinary hearing vide a letter dated 20th August 2020. The letter detailed that the hearing would be held on 26th August 2020. The Appellant acknowledged receipt of the aforementioned letter and confirmed that she will attend vide letter dated 22nd August 2020. The Respondent acknowledged receipt of the Appellant’s letter and emphasized to the Appellant that the decision on her case would be taken post hearing. 111.That the disciplinary hearing was conducted on 26th August 2020 evidenced by minutes that were written by the Human Resource personnel. The Appellant was given an opportunity to be heard and submitted her written explanation of what transpired on said date. Subsequently, upon deliberations by the Respondent, a decision was made to dismiss the Appellant based on her mischief and dishonesty which culminated into the breach of trust. The Respondent acted within the confines of not only the rules and regulations of the company but also the Employment Act. 112.That the above narration of facts demonstrated the process the Respondent took in ensuring that due process was followed which complied with Section 41(2) of the Employment Act. Reliance was placed on the case of Gilbert Mariera Makori v Equity Bank Limited [2016] eKLR on section 41 of the Act being followed on the right of employee being heard before dismissal. 113.That the Appellant was given an adequate opportunity to respond to the allegations against her both orally and in writing. It was very evident from the correspondence between the parties, that the Respondent did its absolute best to actively engage the Appellant before termination. The Appellant was notified well in advance of the date when the disciplinary hearing would occur and the charges she was to answer to. The Respondent ensured that there was sufficient time for the Appellant to prepare her defense. The Appellant acknowledged receipt and confirmed attendance. 114.That on the day of the disciplinary hearing the Appellant was represented by one, Mutindi Musila. The Appellant was afforded an opportunity to explain herself in presence of a representative of her choice and no questions were raised during hearing on the procedure. The Appellant further submitted a written explanation which was thoroughly considered by the Respondent. The Appellant was only terminated after concluding the disciplinary hearing. 115.That the Appellant’s contention in the appeal, was not that due process was not followed but that the Respondent never called any witnesses in support of the allegations against the Appellant during the disciplinary hearing. This is another issue that was not pleaded or particularized by the Appellant in their pleadings or during trial. That contrary to the submissions of the Appellant, the Employment Act does not envisage a mini-court or full court hearing by the employer at the disciplinary hearing stage. 116.That it was only where an employer decides to call witnesses during the hearing, that the law required that the witnesses should tell their accounts in the presence of the employee and the employee was then allowed to challenge their testimony. A reading of the law supposes that it was not mandatory for the Respondent to have called a witness during the disciplinary hearing, especially when it had not been shown by the Appellant how this decision caused him an injustice. Reliance was placed on the case of Judicial Service Commission v Shollei & another (Civil Appeal 50 of 2014) [2014] KECA 334 (KLR) on this assertion. 117.Further reliance was placed on the case of JWN v Teachers Service Commission [2014] KEELRC 991 (KLR) that the hearing must be fair not perfect. Reliance was also placed on the case of Michael Njoroge Mugo v Laikipia University [2018] KEELRC 2355 (KLR) that a disciplinary hearing is not a mini-court where the strictures of a court room trial must be observed. The Learned Magistrate arrived at a sound decision that the Appellant was afforded an opportunity to be heard, therefore the Respondent passed the procedural test. 118.On the issue of whether the Appellant was entitled to the reliefs sought counsel submitted that the general rule was that having concluded that the Appellant was procedurally and substantively dismissed by the Respondent, it therefore followed that she was not entitled to the prayers sought in her claim. 119.On Compensation for unfair and unlawful termination counsel submitted that the Respondent had passed both the substantive and procedural test as required by law in terminating the Appellant’s employment. The Respondent even paid the Appellant her terminal dues of Kshs. 141,815.00/=. The Appellant testified that she asked that this amount be deposited via cheque and the Respondent complied. That the guiding principle is that an award for general damages is discretionary and will depend on circumstances of each case. 120.Reliance was placed on the case of Ol Pejeta Ranching Limited v David Wanjau Muhoro [2017] eKLR, to submit that while awarding the damages under section 49 the court should consider the considerations given there under. That it has already been established that the Appellant’s employment was terminated lawfully, fairly and based on valid reasons. Indeed, termination was warranted as the Appellant’s character was called into question. 121.That the Respondent could no longer trust the Appellant in the event it decided to keep her on. Secondly, the amount sought by the Appellant for compensation, in addition to the amount already settled above, was not only exaggerated but would amount of Kshs.936,000/= at the great expense of the Respondent considering her conduct. That the Appellant cannot have her cake and eat it too. 122.On Payment in lieu of leave days counsel submitted that the law under Section 28 of the Employment Act entitled an employee to leave of not less than 21 days. Further, the letter of appointment under Clause 6, stipulated that leave days unused would be deemed to expire after 18 months from the date of eligibility. The Appellant averred that she worked for the Respondent for approximately 49 months. Therefore, upon calculation, there were no pending leave days. If any, which was denied, the Appellant never requested for the pending leave days, then the same was forfeited. 123.Reliance was placed on the case of Charles Nyaringo Rianga v Hatari Security Guards Ltd [2019] eKLR, on this assertion. That indeed the Appellant submitted herself to the terms of the letter of appointment voluntarily and could therefore not be heard to say, that the same was unfavorable. The issue of leave days was never contested. That the Appellant testified during cross-examination that she was fully remunerated her 14 days’ pay of leave by the company. 124.It was submitted that nothing justified this claim. The Appellant has not adduced any evidence that she requested for leave and the Respondent denied the same. That the Respondent has discharged its obligation under Section 10(7) of the Employment Act. 125.On Overtime counsel submitted that the Appellant averred that she was entitled to Kshs. 2,311/= for working overtime between 1pm and 5pm on 11th July 2020. That every employee who reported to work on that weekend was sufficiently reimbursed by the Respondent as per Rule 6 of the Regulation of Wages (General) Order. It is also unfair to the other employees, that the Appellant should benefit from work she did not do. The Appellant failed to put in the extra effort when the Respondent needed her to do so, considering the circumstances at the time. That the Appellant had not tendered any evidence before this court demonstrating that she worked overtime or how she arrived at this amount.Reliance was placed on the case of James Kyama v Muthaiga Golf Club [2022] eKLR, on the burden of proof of overtime being on the employee through pleadings and evidence. 126.On Salary Arrears counsel submitted that the Appellant claims salary arrears from August 2016 to September 2020 to the tune of Kshs. 871,628/=on the basis that parties agreed orally that her starting salary would be Kshs. 68,000/= while on probation (6 months) and later the amount would be increased to Kshs. 78,000/=. The pay slips adduced as evidence by the Claimant mischievously, are salaries she received in the year 2013. That counsel had addressed the issue of oral agreements and the Appellant had not adduced any evidence on the same. 127.That the Appellant had resigned sometime in October 2013, from a sister company of the Respondent and all her dues were paid. These facts were not in dispute. The Respondent re-employed the Appellant in August 2016 under new terms. The letter of appointment under clause 1 stipulated that the Claimant’s salary would be Kshs. 51,528/=. Reliance was placed on the case of Kenya Union of Clinical Officers & 76 others v County Government of Vihiga & another (Employment and Labour Relations Claim 32 of 2021) [2024] KEELRC 455 (KLR) that allowances do not form part of employees’ wages. 128.That in the letter dated 8th September 2019, where the Appellant had raised an issue on the salary being paid and made a request that the salary be increased to Kshs. 78,000/=. This offer or request was never accepted by the employer. Below the said letter an inscription can be seen made by the relevant HR officer on the issue, the wordings are, we quote verbatim; “Appointment letters always show starting salaries which I presume is what’s on the letter. Your payslip shows current salary, which is the prevailing document. Secondly, it acts as basis of successive growth/increment.” 129.That the employer categorically rejected any such agreement or increment. That the claim was unmerited. Once the request was rejected, the employer could not be forced to accept it. That there was no nexus between the salary the appellant was earning in 2013 and the salaries post 2016, and if there was, which we vehemently deny, the Appellant continued to draw a salary from the company with no complains. That it was not clear how the Appellant arrived at the amount of Kshs.871,628/= when the Respondent remitted all her salaries plus dues owed following the termination. 130.It was submitted that curiously, nowhere during trial did the Appellant testify that the Respondent failed to remit her salary every month. A claim of salary arrears arises where, the employer owes an employee for past work that was not fully paid in the regular payroll cycle and not what the salary ought to be, as the Appellant purports. It was important to state that Mr. Kirit Govindji Jiwandas during trial, affirmed the Appellant’s salary, as he was not aware of any agreement of salary increment. Determination 131.The court has considered the record of appeal, the detailed submissions filed by the both parties herein as well as the authorities relied on and observes that it is now settled law that the duty of the first appellate court was to re-evaluate the evidence in the subordinate court both on points of law and facts and come up with its own findings and conclusions as was held in Court of Appeal for East Africa in Peters –vs- Sunday Post Limited [1958] EA 424.The appropriate standard of review established in cases of appeal can be stated in three complementary principles:i.First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;ii.In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; andiii.It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time. 132.In this case, the Judgment of the trial court was that the Claimant’s suit was dismissed with costs to the Respondent. The Appellant appeals on the whole of the Judgment fronting 11 grounds of appeal which this court will frame in to two issues which are:-a.Whether the trial court erred by finding that the Appellant was lawfully terminated.b.Whether the trial court erred by not awarding the Appellant her terminal dues and reliefs sought Whether the trial court erred by finding that the Appellant was lawfully terminated. 133.It was not in dispute that the Appellant was an employee of the Respondent who was employed in August 2016 as account assistant until 12th July, 2020 when she failed to turn up for extra shift, was suspended on 13th July, 2020 and was terminated on 3rd September, 2020. The reason for termination in the termination letter was failure to immediately disclose to management her inability to report on duty for an extra shift as instructed by management based on an alleged accident. 134.The Appellant alleged that the Respondent gave the grounds of termination as absenteeism and producing of false medical documents which she claimed were introduced at trial. That the same were not the grounds in the termination letter. This court notes that the show cause letters and the disciplinary hearing captured the whole issues around the Appellant failure to attend extra shift work on 12th July, 2020 as requested while she alleged that she got injured and attended hospital. 135.To this court the reasons given by the Respondent were related to the grounds given at the termination letter and they were not new as alleged. The issue of false medical records came up due to her defence that on that particular day she went to hospital which was found to be false by the trial court. 136.This fact of doctored medical documents was confirmed by the hospital vide the letter dated 4th October, 2021 from Ruiru Sub county Hospital that the Appellant’s details for 12th July, 2020 were not available and the date on the receipt and the treatment card did not correspond. The Appellant when called to clarify on these inconsistencies stated that she did not have any other response on the same. 137.The Appellant also alleged that she was entitled to her rest day on Sunday yet in her responses she stated that it was her nanny who was entitled to the rest day and day of worship and not herself. In any case this fact was not particularly pleaded by the Appellant and the Respondent gave the reasons for the request for the extra shift in order to clear from Nakumatt building which was facing auction. 138.The court notes that the Appellant had a burden of proof under section 47(5) to illustrate that she was unfairly terminated before the Respondent could be called upon to justify the grounds of termination. Reliance is put on the case of Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR on the respective burdens. Further, the court was not bound to undertake a burden of proof beyond reasonable doubt as it was in criminal matters but that of civil matters of balance of probabilities. In other words, would a reasonable employer faced with similar circumstances consider termination of service as the most appropriate disciplinary measure? The court is further alive to the fact that it would not replace its subjective views of what constitutes a valid reason for termination of an employment contract with that of the employer. Justice Professor Ojwang’ in the case of Kenya Revenue Authority Vs Menginya Salim Murgani, Civil Appeal No. 108 of 2009 as cited in Republic Vs National Police Service Commission Exparte Daniel Chacha Chacha JR 36 of 2016 (2016) eKLR observed as follows: -“There is ample authority that decision making bodies other than courts and bodies whose procedures are laid down by statute are masters of their own procedures. Provided that they achieve the degree of fairness appropriate to their tasks. It is for them to decide how they will proceed” 139.Further the Court of Appeal in Civil Appeal No 66A of 2017, Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others [2019) eKLR stated as follows:“…It is improper for a court to expect that an employer would have to undertake a near forensic examination of the facts and seek proof beyond reasonable doubt as in a criminal trial before it can take appropriate action subject to the requirements of procedural fairness that are statutorily required. The standard of proof is on a balance of probability, not beyond reasonable doubt, and all the employer is required to prove are the reasons that it "genuinely believed to exist," causing it to terminate the employee's services…" 140.Drawing from the above cases although the standard of proof in such cases is on balance of probability the Appellant had a duty to illustrate she was unfairly terminated. The trial court observed that the Appellant ought to have illustrated that she was unfairly terminated. That she never produced evidence of notifying the Respondent of injury on 11th July, 2020 and the said injury would cause her not attend work for the extra shift. 141.Reliance is placed on the case of Peris Nyambura Kimani v Albit Petroleum Limited [2014] where the court stated that:-“…in the circumstances where an employee is unwell for whatever reason, within the employment and labour relations regime, the basic requirement on the part of the employee under the Employment Act is that when one is sick or unwell, this is to be brought to the attention of the employer within a reasonable time. 142.From the above authority it was clear the responsibility of notifying the employer of employee’s sickness rests with the employee. In this case as observed by the trial court the Appellant did not notify the Respondent of her injury and the procedure required of a sick employee ought to be followed. 143.In addition, the medical documents were found to be doctored and clearly the treatment card and the payment receipt had different dates although the Appellant claimed she was seen on both dates then one wonders if she did not pay anything on 12th July, 2020. This, in the trial Court’s and this court’s view, broke the trust between the parties. The Respondent also tried to reach the Appellant who again the trial court found was dishonest when she claimed that she left the phone home while going to hospital yet it was proved she never went to hospital. The Respondent therefore had fair and valid grounds to terminate the services of the Appellant as per section 43 of the Employment Act. The appellant having broken the trust between herself and the respondent, any reasonable employer would have acted the same as the reason the Respondent. 144.The Respondent also gave the Appellant an opportunity to be heard as observed by the trial court and this court will not delve much on this issue since the Appellant was issued with two show cause letters, was suspended, was invited to disciplinary hearing and was heard on all charges. Her allegations that the Respondent never called any witnesses needs to be supported with evidence that she suffered any prejudice by failure of the Respondent to call its witnesses. In any case it was the Appellant who ought to have called her witnesses to support her allegations of the injuries suffered. 145.Whereas the Appellant alleged that the trial court relied on undated employment contract this court is of the view that the Employment Act acknowledges both oral and written contract and, in this case, since the Appellant refused to sign the employment contract and continued working and receiving salaries from the Respondent, she is estopped from denying the terms of employment as they existed. 146.On the allegation that the trial court did not rely on the amended statement of claim this court notes that the same was not properly filed and served upon the Respondent for it to respond. The trial court was justified in relying on the statement of claim since what was on record was a draft amended statement of claim without endorsement of the date it was allowed to be filed. 147.In the upshot the court finds that the trial court was justified in finding that the Appellant was lawfully terminated both substantively and procedurally. Whether the trial court erred by not awarding the Appellant her terminal dues and reliefs sought 148.The trial court having established that the Appellant was lawfully terminated was justified in not awarding the Appellant the reliefs sought. The trial court awarded the Appellant certificate of service which is an entitlement under section 51 of the Employment Act. The Appellant is not entitled to damages for unfair termination and notice pay since she was not unlawfully terminated. The Appellant was not entitled to severance pay as she was not declared redundant. The other prayers for overtime, salary arrears and unpaid leave were not properly pleaded, tabulated and the Appellant did not illustrate how she arrived at the same and were disallowed by the trial court. 149.This court agrees with the trial court’s finding that the Appellant did not illustrate how she arrived at the overtime and if she was entitled to the unpaid leave when it was illustrated it was paid in her final dues. The claim for salary arrears needed the Appellant to prove by evidence that she was entitled to the same and she was paid less than what was agreed. 150.In the upshot the court finds that the Appellant’s Appeal is found without merit and the same is hereby dismissed with costs. 151.It is so ordered. DATED AT NAIROBI THIS 29TH DAY OF MAY, 2026DELIVERED VIRTUALLY THIS 29TH DAY OF MAY, 2026ABUODHA NELSON JORUMPRESIDING JUDGE-APPEALS DIVISION