https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1801

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MALINDI APPEAL NO. E012 OF 2025 MWANATUMU KAUCHI DENA......................................APPELLANT VERSUS ASSOCIATED CONSTRUCTION CO. (K) LIMITED..........................................................RESPONDENT ***(Being an Appeal against the judgment of Hon. Rita Amwayi – PM delivered on 8th July 2024 at Kaloleni MC – ELRC No. E098 of 2024).*** **JUDGMENT** **Background** 1. The Appellant, Mwanatumu Kauchi Dena, was the Claimant before the Principal Magistrate’s Court at Kaloleni in MCELRC No. E098 of 2024. She filed the suit against the Respondent, Associated Construction Co. (K) Ltd, by a Memorandum of Claim dated 1st July, 2024. The claim arose from an alleged unfair and unlawful dismissal from duty, and non-payment of terminal dues and contractual benefits. 2. In the Memorandum of Claim, the Appellant sought judgment against the Respondent that; 3. The Respondent be ordered to pay the claimant his terminal and contractual dues amounting to Kshs. 245,429.54. 4. Costs of this claim and interest thereon at Court rates. 5. A declaration that dismissal of the claimant from work was unfair and unjust. 6. The claimant be issued with a certificate of service. 7. Any other or further relief as this Court may deem fit. 8. The claim was particularized as follows: a) 1 month’s salary in lieu of notice of Kshs. 9,000.00 b) Salary arrears Kshs. 11,769.20 c) Leave allowance for 2 years, Kshs. 14,538.30 d) Pro-rata leave being Kshs. 1,211.52 e) Overtime being Kshs. 58,487.52 f) Unpaid house allowance, Kshs. 35,100.00 g) Compensation for Public holidays worked, Kshs. 6,923.00 h) NSSF deductions not remitted, Kshs. 400.00 i) Compensation for unfair termination, Kshs. 108,000.00 j) Any further entitlement and/or order that this Honourable Court may deem fit. 1. The Respondent challenged the claim by a Response to the Memorandum of Claim dated 5th March, 2025. The Respondent stated that the Appellant was employed as a General Labourer from 8th October 2021 until 8th March, 2022 at the Respondent’s road construction project site. However, it denied that the Appellant was unfairly and unlawfully dismissed. Further, his entitlement to the reliefs sought. 2. The trial Court directed that the matter be disposed of on the basis of the documents filed by the parties pursuant to the provisions of Rule 59 of this Court’s procedure Rules. **The Appellant’s Case before the Lower Court** 1. In her witness statement dated 1st July, 2024, the Appellant stated that she was employed by the Respondent as a general labourer from January, 2020, earning a monthly salary of Kshs. 9,000, until 8th March, 2022, when the Respondent terminated her services. 2. She stated that on 8th March, 2022, as she was leaving work, one Mr. Harrison Wachira told her that she should not report to work the following day. According to her, Mr. Harrison told her that she would be called later to resume work, but she waited for the call, and it never came. 3. The Appellant further stated that she was not given notice of termination and was not paid in lieu of notice. She also stated that the Respondent owed her salary arrears for February 2022 and days worked in March, 2022. 4. Additionally, she stated that she never took leave during her period of employment with the Respondent. She also worked more than the 8 hours stipulated by law; she was not paid a house allowance during her employment, and she worked on public holidays without compensation. She further stated that prior to the separation, she was not issued a termination notice or paid in lieu. 5. She also alleged that the Respondent deducted NSSF contributions from her salary but failed to remit the same in some months, contrary to sections 20 and 21 of the Employment Act, 2007. 6. The Appellant argued that the termination of her employment amounted to a summary dismissal. This was not justified under Section 44 of the Employment Act and in accordance with the mandatory statutory procedure. **The Respondent’s Case before the Lower Court** 1. In his witness statement dated 5th March 2025, Kipkosgei James Snow, the Respondent’s Project Administrator, stated that the Appellant was not employed from January 2020 to 8th March 2022 as alleged. He stated that she was employed as a General Labourer from 8th October 2021 until 8th March 2022 at the Respondent’s road construction site for the Jomvu Kuu–Jitoni–Rabai road in Kilifi County. 2. He stated that the Respondent’s contract for the road construction project was temporarily stopped by the Government due to the unavailability of funds and that, once the Government allocated funds for the project, the Appellant was to be advised to resume her duties. 3. He further stated that the Appellant’s salary payments were up to date as at 8th March, 2022. Further, she was paid an all-inclusive monthly salary of KShs. 9,000, which included the house allowance. She did not qualify for annual leave, as she had not worked for a continuous 12 months. None of the Respondent’s employees worked overtime or on public holidays. Additionally, the Appellant’s NSSF statement showed remittance of the monthly deductions. **Judgment of the Lower Court** 1. The trial court identified the issues for determination as follows: whether the Claimant was employed by the Respondent; whether the Claimant was unfairly or unlawfully terminated; whether the Claimant was entitled to the reliefs sought; and what orders should be made as to costs. 2. On the date of employment, the trial court found that although the Appellant alleged that she was employed from January, 2020, her NSSF Provisional Member Statement of Account dated 21st May, 2024, appeared to show that she was engaged since 2019, which was contrary to her pleaded case. The trial court, therefore, found the NSSF statement unreliable in support of the conclusion that the date of her employment was as she had pleaded and stated in her witness statement. 3. The trial court preferred the Respondent’s payroll records and, on a balance of probabilities, held that the Appellant was employed on 8th October 2021. 4. The trial court held that section 47(5) of the Employment Act placed the burden of proving unfair termination on the employee. It found that the Appellant failed to prove termination, accepted the Respondent’s version that the project was temporarily halted by the Government due to unavailability of funds, and concluded that the Appellant was not unfairly or unlawfully terminated. 5. On reliefs, the trial court dismissed the claim for one month’s salary in lieu of notice on the basis that the Appellant had not proved unfair termination. The court awarded salary arrears for February, 2022 and 8 days worked in March, 2022, in the sum of Kshs. 11,769.20, finding that the Respondent had not adduced evidence to rebut the Appellant’s assertion that the salary had not been paid. 6. The trial court declined the claims for unpaid leave, pro-rata leave, overtime, unpaid public holidays, underpayment and unpaid house allowance on the basis that they constituted continuing injury under section 90 of the Employment Act and had been filed outside twelve months from the date of termination. 7. The court also dismissed the claim for unremitted NSSF deductions, holding that NHIF and NSSF deductions are due to the respective statutory bodies and not to a claimant, and that the proper prayer in cases of non-remittance is service pay under section 35(5) of the Employment Act. The court awarded a certificate of service and ordered each party to bear its own costs. **Memorandum of Appeal** 1. Dissatisfied with the whole judgment, the Appellant filed the Memorandum of Appeal dated 18th July, 2025, on the following grounds: 2. The Learned Magistrate erred in law and fact in holding that the Appellant was not terminated from employment based on unsubstantiated evidence that the Respondent’s operations were halted by the Government due to unavailability of funds. 3. The Learned Magistrate erred in law and fact in finding that the Appellant was not terminated from employment, awarded her salary arrears owed to her by the Respondent herein, but declined to award costs of the suit despite the fact that she had expended in suing the Respondent to pay the same. 4. The Learned Magistrate erred in law and facts in her determination on the period of employment in finding that the Appellant was employed on 8th October, 2021 as opposed to January, 2020 on the basis of a payroll projection of January, 2021 despite the Appellant adducing her NSSF Provisional Member Statement of Account which, according to her, showed that the Respondent made consistent remittances into her account from January, 2020. 5. The Learned Magistrate erred in law and facts by failing to fully analyse, appreciate and evaluate the nature of the case, the evidence before her and the issues for determination and consequently fell into error and arrived at a wrong determination of the Appellant’s claim against the Respondent. 6. The Learned Magistrate erred in law and fact in arriving at the conclusion that the Appellant was undeserving of her sought reliefs against the weight of the evidence adduced before the Court. 7. The Learned Magistrate erred in law and fact by shifting the burden of proving unfair termination from the Respondent to the Appellant in total contravention of the provisions of section 74 of the Employment Act. 8. The Learned Magistrate erred in law and fact in failing to find that the termination of the Claimant’s employment was unlawful for the reason that the Claimant was not informed that the Government halted the Respondent’s project on account of unavailability of funds in time, and neither was she issued with a notice of termination as provided for under the mandatory provisions of the Employment Act. 9. The Learned Magistrate erred in law and facts in failing to find that the Appellant was entitled to compensation for unlawful termination of employment after the Respondent failed to prove the validity of the process leading to termination. 10. The Learned Magistrate erred in law and fact by failing to consider that both procedural fairness and substantive fairness are vital whilst determining the termination of an employee. 11. The Learned Magistrate erred in law and in fact in her judgment, in failing to allow the whole claim as prayed despite the overwhelming evidence. 12. The Learned Magistrate erred in law and fact in failing to award the Claimant service pay for unremitted NSSF deductions from her salary despite the NSSF extract showing there were no remittances by the Respondent for months, but the same were being deducted. 13. The Learned Magistrate erred in law and facts in failing to award 1 month's salary in lieu of notice, leave and pro-rata leave allowance, overtime allowance, public holidays allowance and compensation for unfair termination despite there being overwhelming evidence in support of the same. **Appellant’s Submissions** 1. The Appellant submits that the trial court erred in finding that she was not terminated from employment on the basis that the Respondent’s operations were allegedly halted by the Government for lack of funds. 2. She submits that withdrawal of work without notice, explanation, or recall amounts to termination in law. She further submits that section 45(2) of the Employment Act requires an employer to justify termination both substantively and procedurally. 3. The Appellant submits that the Respondent did not issue any notice of termination, redundancy notice, or written communication explaining the alleged stoppage of work. She therefore submits that the trial court erred in accepting unsubstantiated assertions. 4. On procedural and substantive fairness, the Appellant submits that section 41 of the Employment Act mandates notification and hearing prior to termination, section 43 places the burden of proving reasons for termination on the employer, and section 45 requires fairness in both substance and procedure. She relies on **Walter Ogal Anuro v Teachers Service Commission [2013] eKLR.** 5. On the period of employment, the Appellant submits that the trial court erred in finding that she was employed on 8th October, 2021, based on a payroll projection. She contends that she produced an NSSF Provisional Member Statement showing consistent remittances from January 2020, and that the trial court erred by disregarding statutory evidence in favour of internal projections. 6. On the burden of proof, the Appellant submits that the trial court improperly shifted the burden to her, yet section 74 of the Employment Act obligates employers to keep employment records and produce them before the Court whenever there is a dispute. 7. On reliefs, the Appellant asserts that she is entitled to compensation pursuant to section 49(1)(c) of the Employment Act, including one month’s salary in lieu of notice pursuant to section 35, as well as claims for leave, overtime, and public holidays, as these claims remained unchallenged due to the Respondent's failure to produce records. She was entitled to service pay on the strength of the unremitted NSSF deductions. 8. On costs, the Appellant submits that, having been awarded salary arrears, she was a successful litigant and the trial court erred in denying her costs. **Respondent’s Submissions** 1. The Respondent, in its written submissions against the appeal, submits that the appeal is unmerited. On grounds 3 and 4 of the appeal, the Respondent submits that the Appellant’s NSSF statement contradicted her pleadings because, according to it, the first remittance was made in January 2017, a date that predated the alleged date of employment. 2. The Respondent submits that the NSSF statement could not prove the date of employment because it only showed the last or current employer of the account holder without indicating when the first remittance was made by that employer. The Respondent, therefore, submits that the trial court properly relied on the Respondent’s payroll and found that the Appellant was employed on 8th October, 2021 and worked until 8th March, 2022. 3. On grounds 1, 2, 6, 7, 9 and 10, the Respondent submits that it did not terminate the Appellant’s employment. Its position is that the road construction project was temporarily stopped by the Government due to the unavailability of funds, and that the Respondent expressed willingness to recall the Appellant once funds were allocated for continuation of the project. The Respondent, therefore, submits that the trial court properly found that the Appellant was not unfairly terminated. 4. On grounds 5 and 12, the Respondent submits that the claims for overtime, off days, public holidays, unpaid leave, and house allowance were continuing injury claims under section 90 of the Employment Act and were therefore statute-barred, since the claim was filed on 1st July, 2024, whereas the Appellant alleged termination on 8th March, 2022. 5. On grounds 8 and 12, the Respondent submits that there was no legal basis for awarding one month’s salary in lieu of notice or compensation for unfair termination because the trial court had found that the Appellant was not unfairly terminated. 6. On ground 11, the Respondent submits that the NSSF statement showed that monthly deductions were duly remitted, and that in any event, the Appellant was not entitled to service pay because she was a registered member of NSSF under section 35(5) and (6) of the Employment Act. **Analysis and Determination** 1. Having considered the record of appeal, the memorandum of appeal, the judgment of the lower court, and the parties’ submissions filed in this appeal, the following issues arise for determination: 2. **Whether the trial court erred in finding that the Appellant was employed from 8th October, 2021 and not January, 2020.** 3. **Whether the trial court erred in finding that the Appellant was not summarily dismissed from employment.** 4. **Whether the Appellant was entitled to the reliefs sought.** 5. **Whether the trial court erred in declining to award costs.** 6. This being a first appeal, this Court is required to reconsider and re-evaluate the evidence on record and draw its own conclusions, bearing in mind that in the matter before the trial Court, the provisions of Rule 59 of the Employment and Labour Relations Court [Procedure]Rules, 2024, were employed and thus no viva voce evidence was taken from the parties. 1. I find it necessary to point out that Rule 59 of the Employment and Labour Relations Court [Procedure]Rules, 2024, which permits the determination of matters on the basis of pleadings, affidavits, witness statements, documents, and written submissions without the taking of viva voce evidence, is not intended for indiscriminate application. Its invocation is appropriate only where the material facts are capable of fair and just determination from the documentary records alone. 2. Where a dispute presents contested facts, serious credibility issues, allegations requiring cross-examination, or matters whose resolution depends on testing the veracity and reliability of witnesses, recourse to Rule 59 would be inappropriate. 3. On the first issue, the Appellant pleaded that she was employed from January, 2020. She relied on the NSSF Provisional Member Statement of Account to support that position. The Respondent, on the other hand, contended that she was employed from 8th October 2021 to 8th March 2022 and relied on its payroll records. 4. It is not difficult to conclude that the statement shows that some NSSF contributions on the Appellant’s account were made well before the date pleaded by the Appellant as the date of her first employment with the Respondent, and, to be precise, three years before that date. In my view, this renders the document unreliable as proof of the Appellant’s date of employment with the Respondent. The learned trial Magistrate did not err in relying on the payroll that was tendered in evidence by the Respondent. In my view, the Respondent discharged its duty under Sections 10 and 74 of the Employment Act. 5. Having stated as I have hereinabove, I now turn to consider whether the Claimant’s employment could be said to have been terminated by the Respondent. The Appellant’s case was that on 8th March, 2022, Mr. Harrison Wachira informed her not to report to work the following day, citing the absence of further work and assuring her that she would be contacted later to resume her duties. While acknowledging that the Appellant was released from work on that date, the Respondent contended that the release was temporary, pending the resumption of the road construction project, which the Government had temporarily halted due to a lack of funds. 6. In my view, after carefully considering the evidence of the Appellant and that of the Respondent, there was a point of convergence on this point. On 8th March 2022, the Appellant was released from her employment, not with the intention of the Respondent to end her employment permanently, for that would amount to termination of employment, but to halt her services temporarily pending the resumption of the road construction project. 7. In light of the foregoing premise, the Appellant could not properly and successfully argue that her employment was terminated by the Respondent on the said date. What occurred was not a termination of employment in its proper sense. 8. To anchor a claim for unfair termination on the 8th March 2022 would be to disregard the common understanding of the parties at the time and to assign a finality to the separation that neither party contemplated. The Appellant would not be allowed to appropbate and reprobate; she cannot, on the one hand, acknowledge that the separation was temporary, and on the other hand, contend that the same amounted to outright termination of employment. The law demands consistency with the factual realities of the case, and those realities do not support a finding that termination occurred on that day. 9. Section 47[5] of the Employment Act establishes a reverse system of burden of proof. It places a duty on the employee to first establish that an unlawful termination of employment or wrongful summary dismissal occurred, after which the evidential burden shifts to the employer to justify the termination or summary dismissal. Where the employee does not discharge this initial burden, their case would collapse at that hurdle. 10. Having found, as I have found, that what occurred on the date stated above was not a termination of employment but a temporary release of the Appellant from her service for the stated reason, I find that the Appellant did not discharge her legal burden under Section 47[5] of the Employment Act. The trial Court did not err in finding the claim for unfair termination unproven. 11. One can advance an argument that, but it took approximately two years without her being recalled to work or paid by the Respondent. That may appear to be so. Maybe that would have been good material for a constructive dismissal claim, which the Appellant did not advance before the lower court. 12. This Court notes that the Appellant sought two categories of relief before the lower court. The first relates to the claim for unfair termination, including notice pay under section 35 of the Employment Act, read together with section 36, and compensation for unfair termination pursuant to section 49[1][c] of the Employment Act. The second comprised reliefs not dependent on that claim, such as compensation for house, unpaid house allowance, compensation for leave days earned but not utilised, and compensation for public holidays worked but not paid for. 1. Having concluded that the claim for unfair termination was rightly declined by the learned trial Magistrate, it is not difficult to conclude that the remedies for compensation for unfair termination and notice pay were rightly rejected. 2. The Appellant claimed what she termed as ´Overtime for the period 2020-08/03/ 2022, Kshs. 58, 487.52. The learned trial Magistrate declined the claim on the basis that it was, in nature, a continuous injury claim, and as such, ought to have been filed within twelve months of the cessation of the injury per the stipulations of section 89 of the Employment Act. Certainly, the learned trial Magistrate was right in viewing the Claim as a continuing injury claim, which was time-barred by dint of the stated provision. See. **German School Society vs Helga Ohany [2017] KECA 112[KLR].** 3. I am of the further view that the learned trial Magistrate’s rejection of the claim for compensation for work done on public holidays was well-founded. The claim, as pleaded, was a continuing injury claim. It was supposed to be filed within twelve months of the alleged date of cessation, but it was not. 4. Further, although the learned trial Magistrate did not consider it from this angle, the claim could still fail, as the Appellant failed to specify which public holidays were worked. This Court takes judicial notice that, despite the Constitution providing for specific public holidays, additional holidays are normally declared by the relevant Cabinet Secretary, outside those set out in the Constitution. As such, it cannot be asserted that we have the same number of public holidays each year. 5. In **James Orwaru Nyaundi vs Kiligoris Sacco Limited [2022] eKLR,** this Court stated; ***“78. The claim for overtime and public holidays worked compensation has just been thrown to Court. This Court has incessantly urged that this practice must come to a stop. It is not enough for a Claimant to just give figures to the court, asserting that he or she is entitled to them, cross her or his fingers hoping that the Respondent does not place documents before the Court, and as a consequence of the failure, say ‘ behold, the claim is proved, the employer has not tendered in evidence any documents.’ The Claimant must, if she or he has to succeed in the claim, be specific on the days when he worked overtime, the specific public holidays, when he worked and was not paid.”*** 1. The reason upon which the learned trial Magistrate declined to grant the relief sought, namely compensation for earned but unutilised leave days and house allowance, was well-founded in law, and, more particularly, in light of the provisions of section 89 of the Employment Act. 2. Although the award of costs in a legal proceeding is discretionary, it is well-established law that costs follow the event. This fundamental principle is explicitly articulated in Section 27 of the Civil Procedure Act. Consequently, when a Court opts not to award costs to a victorious party, it is required to provide reasons for deviating from the general rule. I observe that the learned trial Magistrate considered the limited success of the Appellant’s claim and subsequently declined to award costs to the Appellant, ordering that each party bear its own costs. Indeed, the extent of a party’s success can be a pertinent factor in the exercise of discretion regarding the award of costs. Therefore, I conclude that the learned trial Magistrate did not improperly exercise her discretion. 3. In the upshot, I find the Appellant’s appeal lacking in merit. It is hereby dismissed. Each party shall bear its own costs. **Read, Signed and Delivered this 23rd Day of June 2026.** **OCHARO KEBIRA** **JUDGE**