https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5266

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MACHAKOS** **APPEAL NO. E014 OF 2025** **BONIFACE MUTINDA PHILIP APPELLANT** ***VERSUS*** **CITY LOAF LIMITED RESPONDENT** **[Being an appeal from the judgment of B. Ojoo delivered on 29 August 2024 in Mavoko CMELRC No. E001 of 2023]** **JUDGMENT** The appeal relates to judgment delivered on 29 August 2024 in Mavoko CMELRC No. E001 of 2023. The appellant is seeking that the judgment be set aside and his claim be allowed with costs. The background of the appeal is a claim filed by the appellant before the trial court. His case was that in January 2021, the respondent employed him as a salesman at a monthly wage of Ksh. 23,000. Work hours were from 4 pm to 4 am, but on 30 June 2022, the sales manager changed his role from a salesman to slicing bread at the company. He refused, stating that his contract indicated he was a salesman. His employment was then terminated immediately. The appellant claimed that he did not take annual leave and that there was an illegal deduction of Ksh. 2,000 from his wage monthly, and there were no justified grounds for the termination of employment. He claimed the following: 1. Unpaid leave for 18 months Ksh. 551,294.10 2. Notice pay Ksh. 30,627.45 3. 12 months' compensation Ksh. 369,527.45 4. Minimum wage balance Ksh. 137,294.10 5. Overtime of 8 hours Ksh. 2,384,208. 6. Costs of the suit. In reply and counterclaim, the respondent admitted that the appellant was employed under a written contract dated 1 December 2021. However, he was absent from work from 1 to 14 July 2022, and notices were issued to that effect, directing him to show cause for his absence. He did not respond or resume work. Under the employment contract, the respondent reserved the right to change work duties or job title from time to time. The contract was never revised as alleged. The appellant engaged in breaches of his employment contract and in criminal conduct by selling the respondent’s goods and failing to remit the proceeds of sale. Such conduct warranted disciplinary action and summary dismissal, as provided in the employment contract. The response also stated that the appellant was given 21 days' leave, and that the employment contract stipulated that he should deposit Ksh. 2,000 as security if no loss was incurred on his end, and the accumulated deposits would be refunded at the end of the contract, subject to no losses. There was no termination of employment but absence from duty from 1 to 14 July 2022. Despite issuance of notices to show cause, there was no response. In the counterclaim, the response was that the appellant did not perform his duties as required under the contract. As a salesman, he had sales of Ksh. 85,945 and never remitted it to the respondent. The appellant was absent from work from 1 to 14 July 2022, and despite a notice to show cause, he neither replied nor resumed duty. On this basis, the respondent sought an apology from the appellant for the embarrassment and inconvenience caused by the breach of contract, as well as a refund of Ksh. 85,945 made in sales that were not remitted. The respondent is seeking judgment against the appellant in terms of the counterclaim. The learned magistrate heard the parties and held that the claim had no merit and the same was dismissed with costs. The appellant was ordered to refund the sum of Ksh. 42,141 to the respondent plus interest from the date of the judgment. The appellant was issued with a certificate of service. Aggrieved by the judgment, the appellant filed the appeal on 9 grounds. His case is that the learned magistrate erred in law and fact in failing to apply the required standard in allowing his prayers. The evidence on record was not evaluated and analysed on merit. The written submissions were not considered on the failure by the respondent to apply the provisions of section 41 of the Employment Act (the Act). The claim for annual leave should have been awarded together with compensation for unfair termination of employment under section 49 of the Act. Further grounds of appeal are that the learned magistrate failed to address the provisions of section 10(6) and (7) of the Act, which require the employer to produce work records, which the respondent failed to address. Hence, the documents produced in court were not considered in the judgment, and the judgment should be set aside. On appeal, the appellant submitted that the trial court dismissed the appellant's claim and allowed the counterclaim for Ksh. 56,141, less Ksh. 14,000 allegedly for security, hence ordered the payment of Ksh. 42,141 together with interest. There was an error in that the trial court did not evaluate the evidence before it. The case that the appellant absconded duty from 1 to 14 July 2022 was without evidence. The respondent called its witness, who confirmed that the appellant reported for duty on 1 July 2022. The appellant testified that on 1 July 2022 he found the sales vehicle ordinarily assigned to him had departed. Instead of being assigned another vehicle as required under the contract, the appellant was assigned other duties of slicing bread. When he asked about these changes to his employment, the manager dismissed him immediately. There was no case of desertion of duty as alleged. There was an unjustified termination of employment. In **Elizabeth Kwamboka Khaemba v BOG Cardinal Otunga High Schools Mosocho & 2 others [2014] eKLR,** the court held that the employer cannot unilaterally alter the employment contract without consulting the employee. The appellant had a written contract with duties of a salesman, not one for slicing bread. The changes thus made to the employment contract were not justified. The immediate termination of employment was not justified. This was unlawful and unfair. The respondent did not adhere to the provisions of section 41, 43 and 45 of the Act. Under section 41 of the Act, the respondent had a legal duty to issue notice and invite the appellant to the disciplinary hearing. There was no evidence that a show-cause notice was issued to the appellant, as alleged. The summary dismissal was thus not lawful or justified. The claims made should be reassessed and allowed with costs. The respondent submitted that the appellant testified that on 1 July 2022, he reported to work and found his vehicle gone. He was assigned other duties but declined and left without resuming work. At the time, the appellant had not accounted for his sales of Ksh. 56,141. By deserting his duty, the appellant indicated that he was unwilling to continue his employment. Upon the respondent's desertion of duty, the respondent issued the appellant a notice dated 14 July 2022, requiring him to show cause why disciplinary action should not be taken against him. The appellant failed to attend or address, resulting in termination of employment and the issuance of a notice to the Labour officer on 25 July 2022. Under section 44(4) of the Act, the appellant committed gross misconduct due to absenteeism, which justified summary dismissal. In **Julius Mutana Ngigi v Cobra Security Company Limited [2021] eKLR,** the court held that, in a case involving a reported robbery, the employer summoned all the security guards, but the claimant refused to attend or be addressed, leading to termination of employment for desertion under section 44 of the Act. In **Julius Kyalo Malonza v Ruth Osolo t/a Evaeva Catering Services [2021] eKLR,** the court held that the employer is only supposed to prove its case on a balance of probabilities. Where the appellant remained absent from duty from 1 to 14 July 2022, the conduct frustrated his employment. Under the employment contract, the respondent had the right to change the appellant's assigned duties. The refusal by the appellant to undertake alternative duties as allocated was not justified. Walking out of his employment was an act of gross misconduct. The respondent submitted that the learned magistrate analysed the claim and arrived at a correct decision. The counterclaim was properly assigned and awarded. The appeal has no merit and should be dismissed with costs. **Determination** This is a first appeal. The court is allowed to review the record, reassess the findings and make its conclusion. However, consider that the trial court had the chance to hear the witnesses and hence give this provision. The appellant’s case is that on 30 June 2022, he reported for work as a salesman, but the manager reassigned him to slicing bread. When he protested, he was sent away without justification, resulting in the termination of his employment. The respondent’s case is that the appellant deserted duty after being assigned new duties, a change permitted under his employment contract. He failed to respond to the notice to show cause; hence, his employment was properly terminated for a justified cause under section 44 of the Act. The respondent also had a counterclaim on the basis that the appellant failed to account for the sale and the amount of Ksh. 85,945, which is due and payable with interest and costs. The appellant produced the employment contract dated 1 December 2021. It allowed the respondent to assign the appellant to duties within the establishment, including being a salesman. In his evidence, the appellant admitted he was aware that his contract of employment permitted the respondent to allocate or assign him any duties. However, on 30 June 2022, he came back from Maasai Mara. On 1 July 2022, he found his vehicle had been assigned to another employee. He was assigned duties of slicing bread, but he declined. His case was that the manager chased him away, and he reported the dispute to the Labour Officer. The respondent issued the appellant with a notice to show cause for desertion of duty from 1 July 2022 to 14 July 2022. He did not respond. At the time, the appellant had a sales balance of Ksh. 86,141 owed to the respondent. The appellant thus admitted in evidence that: *… I was indeed assigned to another section, but I refused to go there, as I had not been given any notice of the change. When I was reassigned to the slicing section, I called Mr Bashir to ask him why he had changed my duties. It was then that I went home. I was not changed with any employee. Indeed, I went home. Mr Bashir told me that if I was unhappy, I should leave. I was never served with any letter of termination. …* Whereas he, the appellant, had a written contract of employment that allowed the respondent to assign him to any duties, he admitted that on 1 July 2022, when he was assigned the duty of slicing bread, he declined. He opted to leave. The respondent did not stop him. Indeed, upon the appellant's refusal to undertake the assigned duties on 1 July 2022, the respondent had no right to compel him to work. That would amount to slavery and servitude, which is contrary to Article 30 of the Constitution as held in [**David Gicheru v Gicheha Farms Limited & another [2020] KEELRC 1833 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1833/eng%402020-01-21)**.** In [**Masiga v Max Cure Hospital Ltd [2026] KEELRC 2141 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2141/eng%402026-07-23), the court held that an employer cannot force the employee to work, as such would amount to slavery and servitude contrary to Article 30 of the Constitution, as well as contrary to fair labour practices protected under Article 41 of the Constitution. In this case, the appellant was categorical that he could not work as a person slicing bread. He walked out of his employment. Upon desertion of duty, the respondent made efforts to trace the appellant without success. He was issued a notice to show cause but refused to respond. Notice was issued to the labour officer about the desertion from employment as required under section 18(5) of the Act. This closed the employment relationship. The learned magistrate properly analysed the appellant's claim and dismissed it. The court cannot fault the findings. On the counterclaim, this was addressed and is not contested. **On the whole, the appeal is without merit and is hereby dismissed. Judgment in Mavoko CMELRC No. E001 of 2023 is hereby affirmed. The appellant shall meet the costs due to the respondent in the appeal.** **Delivered in open court this 7 August day of August 2026** **M. MBARŨ** **JUDGE** **In the presence of:** **Court Assistant: Kemboi** **……………………………………………… and …………………………………..………**