https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1470

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT MACHAKOS ELRC APPEAL NO. E172 OF 2024 COMMERCIAL AND INDUSTRIAL EQUIPMENT LIMITED...............................APPELLANT -VERSUS- DOMINIC KITUKU MUALUKO……....................................................................RESPONDENT *(Being an Appeal from the Judgment of Senior Resident Magistrate Hon. Christine A. Ogweno dated 9th May, 2024 at Milimani Chief Magistrate Employment and Relations Court in “MCELRC No. E2114 of 2022)* CORAM Before Lady Justice Jemimah Keli C/A Otieno JUDGMENT 1. The Appellant herein, being dissatisfied with the Judgment and Decree of the Hon. C.A. Ogweno (SRM) delivered at Nairobi on the 9th day of May, 2024 in Milimani MCELRC No. 2114 of 2022 between the parties filed a memorandum of appeal dated the 17th of May 2024 seeking the following orders:- 2. The judgment in Milimani MCELRC No. E2114 of 2022 be set aside and reversed. 3. Costs of this appeal to the Appellants. GROUNDS OF THE APPEAL 1. The Honourable Trial Magistrate erred in law and fact in finding and holding that the Respondent was unfairly terminated. 2. The Honourable Trial Magistrate erred in law and fact by failing to consider the Appellant's evidence and also the written submissions. 3. The Honourable Trial Magistrate erred in law and fact by failing to consider that the evidence of the Appellant's witnesses was never controverted 4. Since the Respondent confirmed that he worked the entire day of 16th November, 2023, the Learned Honourable Magistrate erred in law and fact by failing to consider that the Respondent never proved when his employment was terminated. 5. The Honourable Trial Magistrate erred in law and fact by failing to recognize that the Appellant made efforts to reach out to the Respondent when the Respondent never reported to work on 17th November, 2024 and the Respondent confirmed that the Appellant called him 6. The Honourable Trial Magistrate erred in law and fact by finding and holding that the Appellant admitted to have summarily dismissed the Respondent on account of desertion of duty which was never the case. 7. The Honourable Trial Magistrate erred in law and fact by failing to recognize that the Appellant had no duty to issue the Respondent with a letter to show cause and invite the Respondent for disciplinary hearing since the Appellant had no intention to terminate the Respondent from his employment. 8. The Honourable Trial Magistrate erred in law and fact by awarding costs of the claim to the Respondent by failing to recognize that the Respondent never served the demand letter upon the Appellant before the Respondent filed the claim. BACKGROUND TO THE APPEAL 1. The Respondent filed a claim against the Appellant vide a statement of claim dated the 6th of December 2022, seeking the following orders:- a) A declaration that the Claimant's termination was un-procedural and amounted to unfair termination. (b) Kshs. 753,840.00, as particularized in Paragraph 4 of this Statement of Claim. c) Costs of the suit d) Interest on (b) and (c) above (e) Such further or other relief as this Honourable Court may deem fit. (Pages 3-6 of the ROA dated 4th August 2025). 1. In support of his claim, the Respondent filed his list of witnesses dated 6th December 2022, witness statement of even date, and list of documents of even date with the bundle of documents attached (See pages 8-19 of ROA). 2. The claim was opposed by the Appellant who entered appearance and filed a reply to claim dated the 10th of January 2023 (pages 20-23 of ROA). They also filed a list of witnesses dated 10th January 2023; witness statements of KUSHIL SAMANI, SAID ABDUL, and BENSON KILINOT KIPKOECH, all of even date; and list of documents also of even date with the bundle of documents attached (pages 24-31 of ROA). 3. The Claimant/Respondent’s case was heard on the 19th of February 2024, with the Claimant testifying in the case as CW1. He relied on his filed witness statement as his evidence in chief, and produced his documents as exhibits. He was cross-examined by counsel for the Respondent/Appellant, Mr. Amati (pages 48-50 of ROA). 4. The Respondent/Appellant’s case was equally heard on the same day, with the Appellant calling three witnesses KUSHIL SAMANI, SAID ABDULRAHMAN, and BENSON KILINOT KIPKOECH to testify on its behalf as RW1, RW2 and RW3 respectively. They each relied on their filed witness statements as their evidence in chief and RW1 produced the Appellant’s documents as exhibits. RW1 was cross-examined by counsel for the Claimant/Respondent, Mr. Odhiambo, who declined to cross-examine the other two witnesses (pages 50-51of ROA). 5. Following directions that the parties file their respective written submissions, each party complied. 6. The Trial Magistrate Court delivered its judgment on the 9th of May 2024 partially allowing the Claimant’s claims to the tune of Kshs. 311, 220/ comprised of one month’s salary in lieu of notice, house allowance for the period 7th December 2021 to November 2022 and 11 months; salary as compensation for unfair termination, plus costs of the suit (Judgment at pages 53-69 of ROA). DETERMINATION 1. The appeal was canvassed by way of written submissions. Both parties filed. Issues for determination 1. In their submissions dated the 27th of November 2025, the Appellant submitted on the grounds of appeal generally. 2. The Respondent identified a single issue of determination in his submissions dated 16th December 2025, namely: * 1. Whether the trial court erred in law and fact in finding that the Respondent was unfairly terminated. 3. The court discerned the issues for determination in the appeal to be- 4. Whether the trial court erred in fact under law in finding unfair termination. 5. Whether Respondent was entitled to remedies awarded. Whether the trial court erred in fact and law in finding unfair termination 1. This is the first appellate court. In Selle v Associated Motor Boat Co. [1968] EA 123 it was held that:- *“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”* 2. The Respondent, in compliance with section 47(5) of the Employment Act, stated how the termination occurred at paragraphs 4 and 5 of this witness statement.-“4. On or about 16th November 2022, I reported to work as usual, and the Respondent's Director, Mr Kushil Samani, sent me outside while it was raining heavily. I then requested him to wait for the rain to subside before I left, and the said Respondent's Director became agitated and annoyed, telling me that my employment was terminated and ordering me to leave the shop and go home. 5. I did not receive any official or further communication from the Respondents regarding my employment after this.” 3. Conversely, the appellant, while admitting that they sent the claimant to pick spare parts while it was raining, claims it was only drizzling. When the supervisor asked whether the respondent was ready to continue working, the respondent sought pardon and promised to resume work, but failed to report the next day (paragraphs 9, 10 of the response at page 22 of the ROA). 4. The appellant contended that its Director called the Respondent several times, resting with a call on 30th November 2022, when the respondent informed the Director he would return to work after sorting out small issues. Thereafter, the respondent served the appellant with a demand letter. (Paragraph 11 of the response at page 22 of (ROA). The appellant had the said Abdul swear a statement to the effect that it was he who asked the respondent to go out to correct spare parts when it was drizzling, and this position was supported by a further statement of Kushil Samani, whom the respondent accused of verbally terminating his service. (statements at pages 25-27 of ROA). In support of the response was the bank payment date of November 2022 salary (stated as an advance). 5. The Respondent produced his salary voucher for the month, which, in the opinion of the court, established that the bank deposit by the appellant was a salary, not an advance. 6. The respondent produced evidence of payment of KShs.5,000/- advance on 16th November 2022. (page 17 of ROA) 7. During cross-examination, the respondent told the court he was paid an advance of KShs. 5,000 on 16th November 2022, and at the end of the month, the paid balance was paid after the services had been terminated by the appellant, verbally. 8. The respondent admitted he knew Abdul. He said his services were terminated for refusal to correct spare parts while it was raining and said no one else agreed to go. He denied having said he had issues at home. Mr. Samani asked him to leave because he had failed to collect the spare parts, when it was raining. The respondent said he was paid his salary but by that time he had already engaged counsel. Kushil Samani was RW1 and told the trial court that the basic salary included house allowance, and Kshs. 22,800 was gross pay. He told the court he called the respondent several times and he did not pick his calls. Said Abdulrahama adopted his witness statement and was not cross-examined. (pages 48-51 of ROA were the foregoing proceedings). The trial court held that there was no move of the reason advanced by the Appellant of the Respondent having deserted work, as the phone number called was not disclosed. 9. The trial court believed the Respondent's assertion of termination on account of failing to collect spare parts while it was raining. On re-evaluation (See Selle above) of the evidence, I agreed with the trial court that there was no disclosure of a mobile phone call and no call logs produced. The court further finds that asking an employee (the respondent) to go and collect spare parts outside when it was raining was also unfair as it is a risk to the health of the employee. The Respondent was justified in rejecting the instruction. That was a threat of termination as admitted by Kushil who even stated the respondent was pardoned. The court finds, on a balance of probabilities, that the respondent's services were terminated summarily for refusing to cross the road and collect spare parts while it was raining. That was not a valid reason to terminate the respondent's services. 10. I find no basis to interfere with the decision of the trial court (Mbogo vs. Shah). Whether the Respondent was entitled to relief granted 1. Notice pay – the trial court relied on section 35 of the Employment Act to wit: “(1)A contract of service not being a contract to perform specific work, without reference to time or to undertake a journey shall, if made to be performed in Kenya, be deemed to be—(a)where the contract is to pay wages daily, a contract terminable by either party at the close of any day without notice;(b)where the contract is to pay wages periodically at intervals of less than one month, a contract terminable by either party at the end of the period next following the giving of notice in writing; or(c)where the contract is to pay wages or salary periodically at intervals of or exceeding one month, a contract terminable by either party at the end of the period of twenty-eight days next following the giving of notice in writing.(2)Subsection [(1)](https://new.kenyalaw.org/akn/ke/act/2007/11/eng%402024-04-26#part_VI__sec_35__subsec_1) shall not apply in the case of a contract of service whose terms provide for the giving of a period of notice of termination in writing greater than the period required by the provision of this subsection which would otherwise be applicable thereto.(3)If an employee who receives notice of termination is not able to understand the notice, the employer shall ensure that the notice is explained orally to the employee in a language the employee understands.(4)Nothing in this section affects the right—(a)of an employee whose services have been terminated to dispute the lawfulness or fairness of the termination in accordance with the provisions of section [46](https://new.kenyalaw.org/akn/ke/act/2007/11/eng%402024-04-26#part_VI__sec_46); or(b)of an employer or an employee to terminate a contract of employment without notice for any cause recognised by law.(5)An employee whose contract of service has been terminated under subsection [(1)(c)](https://new.kenyalaw.org/akn/ke/act/2007/11/eng%402024-04-26#part_VI__sec_35__subsec_1__para_c) shall be entitled to service pay for every year worked, the terms of which shall be fixed.(6)This section shall not apply where an employee is a member of—(a)a registered pension or provident fund scheme under the Retirement Benefits Act;(b)a gratuity or service pay scheme established under a collective agreement;(c)any other scheme established and operated by an employer whose terms are more favourable than those of the service pay scheme established under this section; and(d)the National Social Security Fund.”The Notice pay was granted for 1 month, and the same is upheld as the termination was unfair. 2. House allowance - The trial court relied on the payment voucher, which was blank on the item of housing. The trial court correctly held housing was a statutory right under section 31 of the Employment Act -“(1)An employer shall at all times, at his own expense, provide reasonable housing accommodation for each of his employees either at or near to the place of employment, or shall pay to the employee such sufficient sum, as rent, in addition to the wages or salary of the employee, as will enable the employee to obtain reasonable accommodation.(2)This section shall not apply to an employee whose contract of service—(a)contains a provision which consolidates as part of the basic wage or salary of the employee, an element intended to be used by the employee as rent or which is otherwise intended to enable the employee to provide himself with housing accommodation; or(b)is the subject matter of or is otherwise covered by a collective agreement which provides consolidation of wages as provided in paragraph [(a)](https://new.kenyalaw.org/akn/ke/act/2007/11/eng%402024-04-26#part_V__sec_31__subsec_2__para_a).(3)The Cabinet Secretary may, on the recommendation of the Board by notice in the *Gazette*, exclude the application of this section to a category of employees and such category of employee shall be dealt with as shall be specified in the notice.” The appellant said house allowance was inclusive of the basic. The trial court relied on the salary voucher to reject the assertion. I have no basis to fault the trial court so far. The trial court correctly held that the housing constituted a continuing injury and that the cause of action accrued 12 months after termination. The claim was filed on 6th December 2022 for termination in November 2022. The trial court held that the continuing injury is to be paid in 12 months of non-remittance. This was an erroneous interpretation of section 90 (now section 89 of the Employment Act )to wit:-‘**89. Limitations** 3. Notwithstanding the provisions of section [4(1)](https://new.kenyalaw.org/akn/ke/act/1968/21/~part_II__sec_4__subsec_1) of the Limitation of Actions Act ([Cap. 22](https://new.kenyalaw.org/akn/ke/act/1968/21)), no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.’ The court is of the view that the claim for housing as a continuing injury arose on termination of employment and accrued every month, having remained unpaid; the same was due for the entire period of non-payment. The issue of continuing injury is now settled by the Court of Appeal in The German School Society & another v Ohany & another [2023] KECA 894 (KLR) which considered cases of continuing injury and observed citing authorities as follows-:- ‘’There is no contest that a claim premised on a continuing injury must be filed with 12 months after cessation of the injury as provided by section 90. This position was upheld by this Court in [G4S Security Services (K) Limited v Joseph Kamau & 468 Others](https://new.kenyalaw.org/akn/ke/judgment/keca/2018/827) [2018] eKLR. The contestation before this Court is whether the claims in question fall within the ambit of “a continuing injury” as contemplated by section 90. The essential question for determination before the High Court was the maintainability of the complaint due to the limitation period prescribed by the above section. Central to this question is the meaning of the phrase “a continuing injury” and whether the respondent’s claims fell within the said definition. Before the High Court and this Court, the parties did not attempt to define what constitutes “a continuing injury.” From the record, we note that the respondent’s counsel only cited the definition of ‘back pay” in the [Black’s Law Dictionary 9th Edition](https://www.amazon.com/Blacks-Law-Dictionary-Standard-Ninth/dp/0314199497) at page 159 which defines it as “the wage or salary that an employee should have received but did not because of an employer’s unlawful action as setting or paying the wages or salary” to support her claim that back pay was a continuing state of affairs.’’ The Court adopted with approval the elaborate definition of continuing injury claims in [M. R. Gupta v Union of India](https://indiankanoon.org/doc/594185/), (1995) (5) SCC 628, in which the appellant approached the High Court in 1989 with a grievance in regard to his initial pay fixation with effect from 1.8.1978. The claim was rejected as it was raised after 11 years. The Supreme Court of India applied the principles of “continuing wrong” and “recurring wrongs” and reversed the decision. It held:- “The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules.’(emphasis given)The decision of the trial court to limit back pay of housing to 12 months only is held as erroneous and set aside (Mbogo vs. Shah). The court on appeal cannot allow the trial court's erroneous interpretation of the law to remain on the record. The first appellate court is to re-evaluate the evidence and reach its own conclusion (See Selle above). Subsequently, the award of housing is due from the date of employment, as pleaded and admitted by RW1, November 2011 to November 2022, thus 11 years of service. The award is thus Kshs. 22,800x15% x 11 x 12 (132 months), thus the award of housing is Kshs. 451,440/=. The trial court's decision on housing is set aside and substituted accordingly. 4. On compensation, the court awarded 11 months' salary, taking into account that the respondent was capable of securing another job in the market and the length of service. I find the foregoing to be relevant factors under section 49(4) of the Employment Act. On appeal taking into account the type of job the Respondent was doing he was likely to have been re-employed. His national identity card indicated he was born in 1980 (page 19) thus fairly young. I find the award of 11 months to be excessive and reduce the award to 6 months' salary. The trial court applied a salary of KShs. 22,800/-, which I adopted. The compensation is awarded for the total sum of KShs. 136,800/- for the unfair termination. In conclusion 1. The Appeal succeeded partially on compensation for unfair termination, reduced to 6 months. The Appellant is to suffer a setback on the enhanced housing award, the court having found an error in the interpretation of the limitation of continuing injury. Back pay for housing is payable from the date of termination, based on the amount accrued each month of service that was not paid. The judgment of the trial court is set aside and substituted as follows:- Judgment is entered for the claimant against the respondent as follows: 1. Notice pay KShs.22,800/= 2. House allowance Kshs.451,440/= 3. Compensation for unfair termination equivalent to 6 months' salary – KShs.136,800/= 4. Total sum of KShs. 661,040/= (a, b and c above) awarded with interest from the date of judgment. 5. Costs of the suit. 6. Certificate to issue under section 51 of the Employment Act through the Respondent’s Advocates office within 15 days. 7. The general principle of litigation is that costs follow the event. The Appellant lost and gained in the appeal. Each party to bear own costs in the circumstances. 8. It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 22ND MAY, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Appellant: Amati Respondents: Ms Kariuki