https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1823

 REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT KILIFI COUNTY COURT NAME: MALINDI ELRC CASE NUMBER: ELRCA/E014/2025 FAITH KUVUNA NDUNE VS ASSOCIATED CONSTRUCTION COMPANY (K) LIMITED JUDGMENT Background 1. The Appellant, Faith Kuvuna Ndune, was the Claimant before the Principal Magistrate’s Court at Kaloleni in MCELRC No. E096 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. The Appellant sought a declaration that the Respondent unlawfully and unfairly, summarily terminated her employment, and further sought the following liquidated reliefs: a) 1 month’s salary in lieu of notice of… KShs 8000.00 b) Salary arrears……………………………………KShs. 16,000.00 1. Leave allowance for 2 years……… …. KShs. 12, 922.98 2. Pro-rata Leave allowance………………………KShs. 3,230.74 e) House allowance………………………………..KShs. 36.000.00 f) Public Holidays worked ………………………KShs. 6,153. 80 e) Overtime compensation………………………KShs. 88, 189.92 1. NSSF deductions not remitted………………KShs. 1200.00 2. Compensation for unfair termination……... KShs. 96,000.00 3. The Respondent opposed the claim by a Response to the Memorandum of Claim dated 27th January, 2025. The Respondent denied the Appellant’s cause of action and entitlement to the relief sought. 1. After hearing the parties' respective cases and considering their evidence and submissions, the trial Court allowed the appellant’s case only to a very limited extent. The Appellant’s Case before the Lower Court 1. It was the Appellant’s case before the trial Court that she first entered the employment of the Respondent from January 2020 as a General Worker, at a monthly salary of KShs. 9,800 until June 2022, when the Respondent summarily terminated her services. 2. She stated that sometime in June, 2022, as she was leaving work, one Mr Harrison Wachira instructed her not to report for work the following day. 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 she never took leave during her employment with the Respondent. She 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. 4. She further stated that the Respondent failed to pay her salary for August and September 2022. 5. She further alleged that at all material times, the Respondent deducted NSSF contributions from her salary but failed to remit them to the relevant Authority in some months, contrary to sections 20 and 21 of the Employment Act, 2007. 6. The Appellant argued that the termination of her employment was without justification and in violation of the procedural requirements of the Employment Act. The Respondent’s Case before the Lower Court 1. The Respondent called one witness, KipKosgei James Snow, the Respondent’s Project Administrator, to give evidence before the lower Court. The witness stated that the Appellant was not employed by the Respondent from January 2020. Contrary to the Appellant’s allegation, she was employed from 8th October 2021 to 20th May 2022 as a Mason at the Respondent’s road construction site for the Jomvu Kuu–Jitoni–Rabai road in Kilifi County. She earned an all-inclusive salary of KShs. 8000. 1. He stated that the Respondent’s contract for the road construction project was temporarily suspended by the Government due to insufficient funds. This led the Respondent to temporarily release the Appellant from her employment. Once the Government allocated funds for the project, and the project resumed, the Appellant was to be advised to resume her duties. 2. He further asserted that the Appellant never worked on public holidays or weekends. Additionally, the Appellant’s NSSF statement showed that the monthly deductions had been remitted. As the Appellant had not worked for a continuous period of twelve months, she did not qualify for annual leave. Judgment of the Lower Court 1. After hearing the parties and considering their respective evidence and submissions, the learned trial Magistrate found that the Appellant failed to prove her case for unfair and unlawful termination of employment. She declined all the relief sought, save for two months’ salary arrears and the issuance of a certificate of service. The Appeal before the Court. 1. Dissatisfied with the whole judgment, the Appellant appealed against the decision 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 ironically declined to award costs of the suit despite the fact that she expended in suing the Respondent for it to pay the same. 4. The learned Magistrate erred in law and fact in her determination on the period of employment when she found 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 members statement, which outrightly showed the Respondent made consistent remittances into the Appellant’s account from January,2020. 1. The learned Magistrate erred in law and fact by failing to fully 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. 2. The learned trial 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. 3. The learned Magistrate erred in law and fact in 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. g) 1. She Appellant was unfairly terminated from employment, was never issued with any valid reason for termination, or any notice of temporary suspension of She Respondent’s operation. 2. The Learned Magistrate erred in law and fact in failing to appreciate that the Respondent did not produce work records for the period August 2017 to confirm that indeed the Claimant was not part of the Respondent’s employees when the project is stated to have commenced. 3. The Learned Magistrate erred in law and fact in failing to find that the termination of the Appellant’s employment was unlawful for the reason that the Appellant was not informed that the Government had 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. 4. The learned Magistrate erred in law and fact 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. 5. The learned Magistrate erred in law and fact when she failed to consider that both procedural fairness and substantive fairness are vital whilst determining the termination of an employee. 6. The Learned Magistrate erred in law and fact in failing to award the Appellant 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. 7. The learned trial Magistrate erred in law and fact in failing to award 1 month’s salary in lieu of notice, leave allowance, public holidays allowance, and compensation for unfair termination, despite overwhelming evidence in support of the same. Analysis and Determination 1. I have considered the entire record of appeal, the grounds of appeal, the judgment of the lower court, and the written submissions filed by both parties. Two core issues crystallise for my determination: first, the learned trial Magistrate erred in law and in fact by finding that the Appellant’s employment was not terminated; and second, the Appellant was entitled to the relief she sought. 2. As this is a first appeal, I am obliged to subject the evidence on record to fresh, independent scrutiny and to draw my own conclusions therefrom, while remaining alive to the inherent limitation that I did not have the privilege of observing the demeanour and credibility of the witnesses as they testified. 3. Was the Appellant’s employment terminated? The Appellant’s case was that sometime in June, 2022, Mr Harrison Wachira informed her not to report to work the following day, citing a lack of further work, and assured her that she would be contacted later to resume her duties. While acknowledging that the Appellant was released from work as alleged, 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. 4. Having weighed the evidence of both parties with care, I am persuaded that there is a clear and significant convergence between the Appellant’s account and the Respondent’s version of events on one critical point: the separation from employment on the said date was never intended by either party to constitute a final and permanent termination of the employment relationship. I am satisfied that the evidence establishes a mutual understanding that the separation was temporary, triggered by the suspension of the road construction project, and premised on the expectation that the Appellant would be recalled to resume her duties once the project recommenced. 5. In light of the foregoing finding, I am unconvinced that the Appellant’s employment was terminated by the Respondent as was alleged. I am firmly of the view that what occurred on that occasion did not amount to a termination of employment in its proper legal sense. 6. The Appellant cannot be allowed to anchor a claim for unfair termination on the events of that occasion, as doing so would be to disregard the parties’ own common understanding at the time and to ascribe a permanence to the separation that neither party ever contemplated. The Appellant simply cannot approbate and reprobate: She cannot, with one breath, acknowledge that the separation was temporary, and with the next, insist that it constituted a final termination of employment. The law insists on consistency with the facts, and those facts simply do not support a finding that termination occurred on that day. 1. 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. If the employee fails to discharge their initial burden, their case would collapse at that hurdle. 2. Having found, as hereinabove, that what occurred was not a termination of employment but a temporary release from service, I am satisfied that the Appellant failed to discharge the legal burden imposed upon her by Section 47[5] of the Employment Act. I accordingly uphold the trial Court’s finding that the claim for unfair termination was unproven. 3. If, as the Appellant contends, the Respondent thereafter failed to recall her to work within a reasonable period, or failed to communicate its intentions regarding the continuation of the employment relationship, the gravamen of her complaint would not be an unfair termination. Rather, her cause of action, if any, would arise from the Respondent’s subsequent conduct, which effectively demonstrated an intention not to be bound by the employment contract. 4. I am of the view that, in the circumstances, the more legally sustainable cause of action would have been one grounded in constructive dismissal. The alleged wrong, if established, would flow not from the temporary separation itself, but from the Respondent’s subsequent silence and inaction, which, measured against the applicable legal standard, could be said to have repudiated the employment contract and rendered continued employment untenable. 5. I note that the Appellant pursued two distinct categories of relief before the lower court. The first category was tied directly to the unfair termination claim and included notice pay under section 35 of the Employment Act, read together with section 36, and compensation for unfair termination under section 49[1][c] of the Employment Act. The second category comprised stand-alone reliefs independent of that claim, including unpaid house allowance, compensation for leave days earned but not utilised, and compensation for public holidays worked without remuneration. 6. Since I have affirmed the dismissal of the unfair termination claim, it follows inexorably that the relief for compensation for unfair termination and notice pay were equally and rightly dismissed by the learned trial Magistrate. 7. The Appellant advanced a claim she characterised as ‘Overtime’ compensation. The learned trial Magistrate declined the claim on the basis that it constituted a continuing injury claim and, as such, was required to have been lodged within twelve months of the date of cessation of the injury, as provided under section 89 of the Employment Act. I agree entirely with the learned trial Magistrate’s characterisation of the claim as a continuing injury claim; it was plainly time-barred by operation of that provision. See German School Society vs Ohany [2017] KECA 112 [KLR]. 8. I am equally satisfied that the learned trial Magistrate was correct in rejecting the claim for compensation for alleged work done on public holidays. As pleaded, it was also a claim for continuing injury. It should have been filed within twelve months of the alleged date of cessation, and her failure to do so rendered it time-barred. 9. I would add a further observation, though the learned trial Magistrate did not address the point: This claim would independently fail because the Appellant never specified which particular public holidays she allegedly worked. I take judicial notice of the fact that, beyond the public holidays enshrined in the Constitution, the relevant Cabinet Secretary regularly declares additional holidays from time to time. It therefore cannot be assumed, and I decline to assume, that a fixed and identical number of public holidays applies uniformly across every calendar year. 10. In James Orwaru Nyaundi vs Kiligoris Sacco Limited [2022] eKLR, this Court stated; “78. The claim for compensation for overtime and public holidays worked has just been thrown to court. This Court has incessantly urged that the 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 the claim, cross his or her 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 he or she has to succeed in his or her claim, be specific on the days when he or she worked overtime, the specific public holidays, when he or she worked and was not paid.” 11. I am satisfied that the learned trial Magistrate was correct in declining to grant compensation for earned but unutilised leave days and unpaid house allowance. The basis for that refusal — the time limitation provisions under section 89 of the Employment Act — was sound in law, and I see no reason to disturb that conclusion. 12. The award of costs in litigation is, of course, a matter of judicial discretion; but it is equally well settled that costs ordinarily follow the event. The foundational principle is expressly articulated in Section 27 of the Civil Procedure Act, and any departure from it must be justified by cogent reasons. I observe that the learned trial Magistrate took into account the limited success of the Appellant’s claim before making the order that each party bear its own costs. No doubt, the degree of a party’s success is a wholly legitimate factor in the exercise of discretion on the question of costs. I am therefore unable to find that the learned trial Magistrate improperly exercised her discretion, and I decline to interfere with that order. 13. For all the foregoing reasons, I find the Appellant’s appeal to be entirely without merit. It is accordingly dismissed. Each party shall bear its own costs of the appeal. Read, Signed and Delivered the 23rd Day of June 2026. SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. MR. JUSTICE OCHARO KEBIRA** Malindi ELRC Employment and Labour Relations Court Date: 2026-06-24 15:06:05