Nyangau v Esteel Construction Limited (Employment and Labour Relations Appeal E057 of 2025) [2026] KEELRC 2034 (KLR) (15 July 2026) (Judgment)

Nyangau v Esteel Construction Limited (Employment and Labour Relations Appeal E057 of 2025) [2026] KEELRC 2034 (KLR) (15 July 2026) (Judgment) Neutral citation: [2026] KEELRC 2034 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Appeal E057 of 2025 DKN Marete, J July 15, 2026 Between Evans Momanyi Nyangau Appellant and Esteel Construction Limited Respondent Judgment 1.This matter was originated by way of a Memorandum of Appeal dated 26th February 2025. It is an appeal from a judgment delivered on 6th February, 2025 at Milimani in Employment & Labour Relations Cause No. E1749 of 2023. 2.Being aggrieved by the said decision, the Appellant preferred this appeal on the following grounds;1.That the Learned Magistrate erred in law and in fact by dismissing the Claimant’s case and finding that the Claimant was not terminated but absconded work and/or duty.2.That the Learned Magistrate erred in fact and in law when he held that the Claimant/Appellant absconded work, without applying the principles that govern cases of desertion and/or abscondment and thereby arrived at a wrong decision by ignoring the provisions of the Employment Act, 2007, especially sections 41, 43, 45 and 47 and the precedents set by the Honourable Court.3.That the Learned Magistrate erred in fact and in law by not awarding the Claimant/Appellant herein the remedies sought as against evidence and fact presented before the Honourable Court. 3.The Appellant prays for orders that:a.This appeal be allowed.b.The decision of the Honourable Learned Magistrate dated 6th February 2025 be set aside in its entirety.c.The Appellant be awarded the reliefs sought including notice pay, compensation for unfair termination, public holidays and service pay.d.Costs of the lower court and of this appeal be borne by the Respondent. 4.The Appellant’s case as presented in his witness statement dated 28th August, 2023 and the written submissions filed before this court comes out as follows. He was orally employed by the Respondent in April, 2017 as a carpenter on a daily wage of Kshs. 900.00. He would report to work at 0730 hours and work up to 1630 hours from Monday to Friday. He was entitled to annual leave of 24 days in a year, which he never took and was instead paid Kshs. 21,600.00 annually as compensation for unutilised leave. 5.On 23rd December 2021, the Appellant was released by his employer to proceed for the Christmas holiday and was to report back to work on 3rd January 2022. On such reporting back, he was informed by, one, Brian, the Assistant Foreman, that there was no work and that he should wait and would be called back once work became available. He went home and waited but was never called. He kept calling the Foreman, one Kennedy, who consistently informed him that work was not available. 6.The Appellant further states that he travelled from Kisii to Nairobi in November, 2022 and visited the company offices at Industrial Area where he met the Human Resources Manager, one Mr. Rajvi, who told him work was still not available but would check which site had a vacancy and thereafter call him. He continued visiting the office throughout November and December, 2022 without any positive feedback. On 23rd January 2023, Mr. Rajvi informed him that work was still unavailable and, upon the Appellant asking about his service pay, was told he had been away for a whole year and could not claim service pay and was directed to seek legal advice. 7.The Appellant submits that the Respondent never followed the proper procedure required under the Employment Act, 2007 before treating him as having deserted duty or otherwise bringing the employment relationship to an end. He relies on the authority of James Okeyo v Maskant Flower Limited [2015] eKLR for the proposition that desertion, being a unilateral act of abandonment of the contract, cannot operate to bring a contract of service to closure until the employer acts on it. He further argues that even where an employee is alleged to have absconded duty, the employer is obligated to formally require the employee to resume duty, warn the employee of the risk of disciplinary action if he fails to do so and thereafter subject the employee to a fair disciplinary process under sections 41, 43 and 45 of the Employment Act, 2007. 8.The Appellant further seeks to rely on the authority of Ronald Nyambu Daudi v Tornado Carriers Limited [2019] eKLR, Milano Electronics Limited v Dickson Nyasi Muhaso [2021] eKLR, and National Bank of Kenya v Samuel Nguru Mutonya [2019] eKLR for the proposition that an employer alleging desertion must demonstrate efforts made towards reaching out to the employee and putting them on notice that termination of employment on that ground was under consideration, and must comply with sections 41, 43 and 45 of the Employment Act, 2007. 9.The Appellant claimed one month’s salary in lieu of notice at Kshs. 23,400.00, public holidays for 66 days amounting to Kshs. 118,800.00, service pay amounting to Kshs. 67,500.00 and compensation of Kshs. 280,800.00, all totaling to Kshs. 489,700.00. 10.The Respondent’s case before the trial court was presented through its witness Kenneth Shitsama Mukhomba and the written submissions filed before this court. The Respondent concedes that the Appellant was its employee, having worked from 2019 until December, 2021. The Respondent’s witness testified that the Appellant worked at the Mi Vida Apartments-Garden City project which was completed in January, 2022 and that when the Appellant called him in 2022, he informed the Appellant to report to a project along General Mathenge Road but the Appellant never showed up. 11.The Respondent submits that the Appellant was never terminated from employment. They argue that the Appellant failed to discharge the burden of proof under section 47(5) of the Employment Act, 2007 of proving that he was unfairly or unlawfully terminated and that consequently no burden shifted to the Respondent to prove the grounds for termination under section 43 of the Act. The Respondent relies on Pius Machafu Isindu v Lavington Security Guards Limited (Civil Appeal 301 of 2015) [2017] KECA 225 (KLR) for the proposition that an employee bears the initial burden of proving that his services were terminated and that such termination was unfair or wrongful, before the employer is called upon to justify the termination. 12.The Respondent further submits that the Appellant’s failure to raise the issue of his employment with the Respondent’s management in January, 2022 (raising it only in November 2022), and his failure to report to the General Mathenge Road project when directed to do so by the Respondent’s foreman, demonstrate that the Appellant left the Respondent’s employment on his own accord with no intention of returning. In support of its position on desertion. The Respondent in such support seeks to rely on the authority Ndunda v Insight Management Consultant Limited (Cause 2371 of 2016) [2022] KEELRC 1203 (KLR) and Stanley Omwoyo Onchweri v Board of Management Nakuru YMCA Secondary School [2015] KEELRC 1130 (KLR.) 13.The issues for determination therefore are:1.Whether the Appellant was unlawfully terminated or whether he absconded duty.2.Whether the Appellant is entitled to the reliefs sought. 14.This being a first appeal, this court is entitled to re-evaluate, re-analyse and re-consider the evidence on the record and draw its own independent conclusions, bearing in mind that it did not have the benefit of observing the demeanour of witnesses at trial. This is the position in Peters v Sunday Post Limited [1958] EA 424 and Selle and Another v Associated Motor Boat Co. Ltd [1968] EA 123. See also Kaio Kivuva v Penina Wanjiru Muchene [2019] eKLR. 15.The 1st issue for determination is whether the Appellant was unlawfully terminated or whether he absconded duty. The core factual issue in dispute is whether the Appellant was turned away from employment on 3rd January, 2022 and thereafter treated as having no subsisting contract, or whether he voluntarily abandoned his employment without any act of termination by the Respondent. 16.The Appellant’s evidence is that on 3rd January, 2022 he reported to work and was told by the assistant foreman Brian that there was no work and to wait to be recalled. He then waited, making repeated calls to the foreman Kennedy, who continued to tell him work was unavailable. He visited the company offices in November, 2022 and met the HR Manager who told him there was no work. On 23rd January 2023, he was told he had been away a whole year and could not claim service pay, and was directed to seek legal advice. 17.The Respondent’s witness, Kenneth Shitsama Mukhomba, offered a different account that the Mi Vida Apartments project had concluded in January 2022 and that the Appellant called him in 2022 whereby he directed the Appellant to report to a project along General Mathenge Road, but the Appellant never showed up. 18.The trial court, relying on section 107 of the Evidence Act, Chapter 80 Laws of Kenya found that the Appellant bore the burden of proof on his claim of unfair termination. This is in tandem with Section 47(5) of the Employment Act, 2007 which provides that for any complaint of unfair termination of employment or wrongful dismissal, the burden of proving that an unfair termination or wrongful dismissal has occurred rests on the employee. The Court of Appeal in the authority of Pius Machafu Isindu v Lavington Security Guards Limited (Civil Appeal 301 of 2015) [2017] KECA 225 (KLR) affirmed this principle, holding that the burden rests on the employee to prove not only that his services were terminated, but also that the termination was unfair or wrongful. 19.This inquiry does not, however, end at whether a termination letter was issued. The law is equally settled that an employer who pleads desertion or abscondment as the basis for separation of employment bears its own obligations. As this court observed in Stanley Omwoyo Onchweri v Board of Management Nakuru YMCA Secondary School [2015] KEELRC 1130 (KLR), desertion is distinguishable from mere absence without permission. Desertion can only be established where an employee leaves employment with the intention of not returning, or subsequently formulates such intention. Such intention may be demonstrated by showing absence of communication from the employee, the duration of absence, the impact of the absence and the nature of the employee’s duties. Critically, the employer must demonstrate that it made reasonable attempts to reach out to the employee, issued ultimatums to resume duty, and that a fair disciplinary process was followed. 20.Applying these principles to the facts of this case, several observations arise. First, the Respondent’s own witness, Kenneth Shitsama Mukhomba, confirmed that the Appellant called him in 2022 regarding work. This stands in direct contrast to the profile of an employee who has deserted and severed all communication with his employer. The Appellant did not disappear; he maintained contact. The question that then arises is whether the Respondent’s instruction to report to General Mathenge Road constituted a proper recall to duty and whether the Appellant’s failure to appear was unjustified. 21.The difficulty with the Respondent’s position is that the evidence of a verbal direction to report to General Mathenge Road was uncorroborated. There was no written recall notice, no formal instruction and no follow-up when the Appellant did not appear. If the Respondent genuinely believed that the Appellant had deserted employment, it was under an obligation to issue a formal notice to show cause and, if there was no satisfactory response, proceed with termination in accordance with sections 41 and 44 of the Employment Act, 2007. This was not done. 22.As observed in James Okeyo v Maskant Flower Limited [2015] eKLR, and restated in Milano Electronics Limited v Dickson Nyasi Muhaso [2021] eKLR, desertion, being a unilateral act of abandonment of the contract, cannot operate to bring a contract of service to closure until the employer acts on it. The decision to formally end the employment relationship must come from the innocent party, following due process. 23.The trial court found it hard to believe that the Appellant stayed away from January all the way to November without the absence constituting desertion, calling the period inordinate. With respect, the length of the absence alone is not a sufficient basis for concluding desertion without first addressing whether the Respondent discharged the procedural obligations that fall on an employer pleading abscondment. The trial court does not appear to have directed its mind to those prerequisites. 24.This court is satisfied that the Respondent did not establish on a balance of probabilities that the Appellant deserted duty in the legal sense. The Appellant maintained contact with the Respondent, visited the offices, and was ultimately told in January, 2023 to seek legal advice — an exchange that reads more like a final rejection than an ongoing non-appearance. The totality of the evidence is more consistent with an informal termination of employment than a voluntary abandonment by the Appellant. The Respondent neither issued any notice to show cause, nor conducted any disciplinary hearing, nor issued any formal letter bringing the employment to a close. This court accordingly finds that the Appellant’s employment was unfairly and unlawfully terminated. 25.The 2nd issue for determination is whether the Appellant is entitled to the reliefs sought. Having found that the Appellant’s employment was unlawfully terminated, this court proceeds to consider the appropriate reliefs. 26.On the date of commencement of employment, the Appellant’s witness statement states he was employed in April, 2017. The Respondent’s witness testified that the Appellant worked from 2019 until December, 2021. The only documentary evidence produced regarding the period of employment is an M-Pesa statement showing payments between 2nd February, 2021 and 30th September, 2021. 27.This court notes that under Section 74 of the Employment Act, 2007 an employer is obliged to maintain written employment records including the date of commencement of employment. The Respondent produced no employment records, no payroll documentation and no NSSF remittance statements covering a period before 2021. The absence of such records should not automatically benefit the employer, as the statutory duty to maintain them is the employer’s alone. However, in the absence of any documentary record establishing employment from 2017, and given that the only financial evidence on record corroborates employment only from 2021, this court finds that the proved period of employment on the basis of available evidence is from 2019 to January, 2022 being approximately 3 years. In reaching this finding, the court accepts the Respondent’s concession that the Appellant was its employee from 2019 and notes that the Appellant should have taken steps to preserve independent evidence of his earlier engagement if he intended to rely upon it. 28.The Appellant’s daily wage was Kshs. 900.00, giving a monthly salary of Kshs. 23,400.00 (Kshs. 900.00 x 26 working days). 29.On notice pay the Appellant is entitled to one month’s pay in lieu of notice under section 35 of the Employment Act, 2007, amounting to Kshs. 23,400.00. 29.On public holidays the Appellant claimed public holiday pay from 2017. Given that this Court has found employment relationship is established as from 2019 to January 2022, being approximately 3 years and in the absence of documentary evidence that the Appellant actually worked on specific public holidays during this period, this claim is not proved on a balance of probabilities and is declined. 30.As to service pay, the Appellant is entitled to service pay under section 35(5) of the Employment Act, 2007 for approximately 3 years of employment. There is no evidence before this Court that the Respondent remitted NSSF contributions on behalf of the Appellant; no NSSF statement was produced by the Respondent. The absence of NSSF remittance records is, in any event, the consequence of the Respondent’s own failure to discharge its statutory obligations and does not further advantage the Respondent. Service pay is calculated at 15 days’ pay per year of service: 15 days x Kshs. 900.00 x 3 years = Kshs. 40,500.00. 31.The claim for compensation for unfair termination under section 49 of the Employment Act, 2007 is considered on the following basis: This court takes into account the duration of employment (approximately 3 years), the manner of termination (informal, without notice or any due process), the Appellant’s status as a daily wage earner in the construction sector and the fact that no disciplinary process of any kind was followed. In the circumstances, this court considers an award equivalent to 6 months’ gross pay to be fair and just. Compensation: Kshs. 23,400.00 x 6 = Kshs. 140,400.00. 32.Having considered the Record of Appeal, the submissions of the parties and the applicable law, the appeal is partially allowed. The finding of the trial court that the Appellant deserted duty is set aside and a finding of unfair and unlawful termination is substituted therefor. The award of service pay by the trial court is affirmed, with the quantum adjusted as set out below. 33.I am therefore inclined to partially allow the appeal and order relief as follows:i.A declaration is hereby issued that the termination of the Appellant’s employment by the Respondent was unfair and unlawful.ii.The Respondent is ordered to meet and pay the Appellant compensation as follows;One (1) month’s pay in lieu of notice…………………………….……Kshs. 23,400.00Service pay for 3 years……………………………………………...…Kshs. 40,500.00Six (6) months compensation for unfair termination of employment.. Kshs. 140,400.00Total of award………………………………………………………Kshs. 204,300.00iii.The Respondent be and is hereby ordered to issue the Appellant with a Certificate of Service within 30 days of this judgment of court.iv.The costs of this appeal and the lower court proceedings shall be borne by the Respondent.v.Interest on the monetary award shall accrue at court rates from the date of this judgment until payment in full.vi.For clarity and avoidance of doubt, the claims for public holidays be and are hereby dismissed for want of proof. DELIVERED, DATED AND SIGNED THIS 15TH DAY OF JULY 2026.D. K. NJAGI MARETEJUDGEAppearances:Mr. Rakoro instructed by Rakoro & Company Advocates for the Appellant.Nyanjiru instructed by Mercy Njeri &Associates Advocates for the Respondent.