https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2050

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT MOMBASA CIVIL APPEAL NO. ELRCA E096 OF 2025 FAJRI BAKERS LIMITED………………………..…....APPELLANT VERSUS 1. ROGERS OMONDI OYARO 2. ALEX NYAEGA MOMANYI 3. DAVID ONG'ERA OGETO 4. DOUGLAS NYAGETIRIA WARUCHA 5. ROBERT MAKORI NYANG'AU………………....RESPONDENTS *(Being an appeal from the whole of the Judgment of Hon. J.B. Kalo, Chief Magistrate, Mombasa, delivered on 15th May 2025, in the Chief Magistrate's Court at Mombasa in MC ELRC No. E196 of 2023)* **JUDGMENT** **Introduction** 1. This is a first appeal from the judgment of Hon. J.B. Kalo, Chief Magistrate, delivered at Mombasa on 15th May 2025 in MC ELRC No. E196 of 2023, in which the trial court found that the five Claimants named therein — now the Respondents to this appeal — had been unfairly and unlawfully dismissed from their employment with the Appellant, Fajri Bakers Limited, and entered judgment for each of them in specified sums, together with interest and costs. Aggrieved, the Appellant brought this appeal, seeking to have the judgment and decree of the trial court set aside in their entirety. 2. I have had the benefit of the record of appeal, the impugned judgment, the Memorandum of Appeal, and the respective written submissions of learned Counsel for the parties, and I now render my decision. **Background to the Underlying Suit** 1. By a Memorandum of Claim dated 2nd April 2023 and filed on 13th April 2023, the five Claimants, all bakery workers, sued the Appellant before the trial court alleging unfair and unlawful termination of their employment. Their pleaded case was that the 1st Claimant, Rogers Omondi Oyaro, was engaged as a Moulder on 8th February 2021 at a monthly salary of Kshs. 21,000; the 2nd Claimant, Alex Nyaega Momanyi, as a Bread Slicer on 10th May 2021 at Kshs. 18,000; the 3rd Claimant, David Ong'era Ogeto, as a Mixer on 7th October 2020 at Kshs. 22,500; the 4th Claimant, Douglas Nyagetiria Warucha (also rendered "Marucha" in parts of the lower court record), as a Bread Slicer on 2nd April 2021 at Kshs. 18,000; and the 5th Claimant, Robert Makori Nyang'au, as an Oven Man on 1st September 2020 at Kshs. 25,500, each assigned to bread-making duties at the Appellant's premises within Mombasa County. 2. It was pleaded that the Claimants worked continuously from their respective dates of engagement until 1st March 2023, when they were summoned by the Appellant's manager and informed, without notice or explanation, that their services were no longer required, and directed to surrender their uniforms and leave. It was averred that no show-cause letter, disciplinary hearing or notice of termination preceded the dismissal, and that the Appellant thereafter declined to attend conciliation before the labour office. The Claimants jointly sought terminal dues totalling Kshs. 2,200,525, itemised as one month's salary in lieu of notice, unpaid salary for February 2023, unpaid leave, house allowance at 15% of basic salary, unremitted National Hospital Insurance Fund contributions, twelve months' salary as compensation for unlawful termination, and service pay, together with costs and interest. 3. The suit initially proceeded ex parte, no appearance having been entered for the Appellant, and on 31st August 2023 the 1st Claimant testified alone, adopting his own witness statement and, in addition, purporting to adopt the witness statements of the 2nd to 5th Claimants as their evidence. Judgment was entered in default on 30th November 2023 for the full sum claimed, together with costs and interest, and the Appellant's property was thereafter attached and proclaimed for sale in execution. 4. By a Notice of Motion dated 8th February 2024, supported by the affidavit of its director, Ali Abdi Mohamed, the Appellant applied to set aside the default judgment and the consequent warrants of execution, principally on the ground of defective service, and exhibited affidavits sworn on 8th February 2024 by the 2nd Claimant, Alex Nyaega Momanyi, and the 5th Claimant, Robert Makori Nyang'au, in which each deponed that he had never instructed the firm on record to sue the Appellant on his behalf, that he remained in the Appellant's casual employment, and that he was a stranger to the claim bearing his name. Each subsequently wrote directly to that firm, on 28th June 2024, disowning the suit and the witness statement filed in his name, and threatening to report the matter to the Law Society of Kenya and the police. By consent of the parties recorded on 18th March 2024, the application was allowed, the default judgment and warrants were set aside without an order as to costs, and the Appellant was granted leave to file its response. 5. The Appellant thereafter filed a response denying the claim in its entirety and pleading that the Claimants were casual employees, engaged and paid daily as and when work was available, and were never permanent staff. The suit proceeded to a full hearing before Hon. J.B. Kalo. On 19th September 2024, the 1st Claimant testified afresh as the sole witness for the Claimants, this time adopting only his own witness statement of 2nd April 2023 as his evidence in chief. Under cross-examination, he conceded that “we filed suit five of us but two have dropped out, being the 2nd and 5th [Claimants],” that he had no payslip and no proof of monthly payment, that he was paid Kshs. 700 a day plus a further Kshs. 50, that no National Social Security Fund contributions were remitted on his behalf, and that neither he nor his co-Claimants held written contracts of employment. That closed the Claimants' case; no other Claimant gave evidence. 6. For the Appellant, its director, Ali Abdi Mohamed, testified, adopted his witness statement, and produced the Appellant's bundle of attendance and payment records. He maintained that the Claimants were casual labourers engaged on a need basis and paid at the close of each shift, that three of the five Claimants had disowned or withdrawn their claims, and that nothing was owed to any of them. Under cross-examination, he confirmed that the 1st Claimant had, in the meantime, “withdrawn his case before court” by filing a notice of withdrawal, and conceded that he could not state with certainty how many days the Claimants had worked in 2021, 2022 or 2023, though he maintained that the attendance records placed before the court, showing engagement on thirty-three days spread across three years, spoke for themselves. 7. It is necessary to record, because it looms large over this appeal, that on 8th November 2024 — after the close of the Claimants' case on 19th September 2024, but before final submissions were filed — the 1st Claimant, Rogers Omondi Oyaro, personally filed and served a Notice to Act in Person in place of his advocates, together with a Notice of Withdrawal of the 1st Claimant's Claim Against the Respondent, by which he withdrew his entire claim against the Appellant, with no order as to costs. Both documents bear his own signature and are on the record of the trial court. 8. Final submissions were filed by both sides. The Appellant's final submissions, dated 13th March 2025, drew the trial court's express attention to the 1st Claimant's Notice of Withdrawal, recorded on the court's own tracking system, and submitted that he accordingly had no claim to press. The Claimants' final submissions, dated 7th March 2025, made no mention whatever of that withdrawal; while they did not press claims on behalf of the 2nd and 5th Claimants, whose withdrawal they candidly acknowledged, they proceeded to itemise afresh, and to press, terminal dues in favour of the 1st Claimant in the sum of Kshs. 432,000, without a word of explanation for the notice of withdrawal he had, by then, already filed and served. **The Trial Court's Judgment** 1. By a judgment delivered electronically on 15th May 2025, the learned trial Magistrate found that, the Appellant's witness having been unable to state how many days the Claimants worked in 2021, 2022 and 2023, section 37 of the Employment Act operated to deem the Claimants' engagement to be one for monthly wages; that their dismissal on 1st March 2023 was procedurally and substantively unfair, no show-cause letter or disciplinary process having preceded it; and entered judgment for the 1st, 2nd, 3rd, 4th and 5th Claimants in the respective sums of Kshs. 368,600, Kshs. 311,600, Kshs. 421,875, Kshs. 311,600 and Kshs. 470,550, with interest at court rates from the date of filing suit, and costs. 2. The concluding paragraph of the judgment reads: “RW1 stated that some claimants have withdrawn their claims against the respondent. He did not produce documentary evidence to support his statement. In the event any of the claimants has withdrawn their claim against the respondent, then the award made to such claimant shall not form part of the judgment and shall stand expunged from the record.” A stay of execution for thirty days was granted. **The Appeal** 1. Aggrieved, the Appellant filed a Memorandum of Appeal dated 3rd June 2025, advancing five grounds, which I summarise as follows. The learned trial Magistrate is said to have erred: (a) in law and in fact in finding that the Respondents' employment was unfairly and unlawfully terminated; (b) in finding that the Respondents had proved their respective claims for one month's salary in lieu of notice, unpaid salary for February 2023, unpaid leave, house allowance, unremitted National Hospital Insurance Fund contributions, and ten months' salary as compensation for unlawful termination, and in awarding the sums of Kshs. 368,600, Kshs. 311,600, Kshs. 421,875, Kshs. 311,600 and Kshs. 470,550 respectively; (c) in misdirecting himself on the applicable principles of law by failing to take into account and appreciate the evidence and submissions tendered by the Appellant; (d) in failing to hold that the 1st, 2nd and 5th Respondents' cases had been withdrawn prior to the hearing; and (e) in ordering that interest run from the date of filing suit, and in awarding costs to the Respondents. 14. The Appellant prayed that the appeal be allowed with costs, that the decree and incidental orders of the trial court made on 15th May 2025 in MC ELRC No. E196 of 2023 be set aside wholly, and that it be awarded the costs of the appeal. **The Appellant's Submissions** 15. Learned Counsel for the Appellant submitted that the Respondents' own evidence, and the admissions elicited from the Appellant's witness on cross-examination, established that the Respondents were engaged and paid on a daily basis, at rates ranging between Kshs. 600 and Kshs. 850 a day, without written contracts, payslips or monthly remuneration, and that the attendance records produced by the Appellant, spanning the period between 7th June 2022 and 22nd January 2023, showed engagement on isolated and scattered days only, not continuous service. It was submitted, relying on Jephter Mogumo Osiemo v Robin and Robin Construction Co. Ltd [ELRC No. 208 of 2018], Livingstone Oundo v Polypipes Limited (Steel Division) [Nairobi ELRC Cause No. 315 of 2014], Patrick Juma Ouma v Kabuito Contractors [Cause No. 1992 of 2011], and Rashid Mazrui Ramadhani & 10 Others v Doshi & Company (Hardware) Limited & Another [Mombasa Civil Appeal No. 43 of 2017], that a claimant who asserts permanent status bears the burden of proving continuity and regularity of engagement, and that intermittent, daily-rated engagement, however long its span, does not, without more, convert to a term contract under section 37 of the Employment Act. It was submitted that the learned trial Magistrate erred in invoking sections 37(1) and 35(1)(c) of the Act against the weight of the documentary evidence of intermittent engagement, and that, the Respondents having failed to prove continuous engagement of the character contemplated by section 37, the reliefs founded on permanent status — notice pay, house allowance, unremitted statutory deductions and compensation for unlawful termination — could not stand. 16. On the question of withdrawal, Counsel submitted, with reference to pages 51 to 54 and 120 of the record of appeal, that the 1st, 2nd and 5th Respondents had, on the evidence, withdrawn or disowned their claims before the hearing concluded, that the trial court ought to have so found, and that the judgment and decree entered in favour of those three Respondents were accordingly erroneous. It was submitted that the appeal ought to be allowed in its entirety, the decree of 15th May 2025 set aside, and costs awarded to the Appellant both on appeal and before the trial court. **The Respondents' Submissions** 17. Learned Counsel for the Respondents opposed the appeal. It was conceded, as it had been before the trial court, that the 2nd and 5th Respondents had withdrawn their claims, and their terminal dues were accordingly not pressed on appeal; the submissions, however, proceeded to defend the awards made in favour of the 1st, 3rd and 4th Respondents, without any reference to the 1st Respondent's own notice of withdrawal. It was submitted that the Appellant's witness had, on cross-examination, admitted that the Respondents began working for the Appellant in 2021, that they were only off duty on Sundays, that he had no evidence of how many days they worked in any given year, and that the attendance sheets produced did not disclose either the amounts paid or the number of days worked in a month, and that these admissions sufficed to discharge the burden resting on the Respondents under section 47(5) of the Employment Act, relying on Galgalo Jarso Jillo v Agricultural Finance Corporation [2021] eKLR, Josephine M. Ndung'u & Others v Plan International Inc [2019] eKLR, Mary Chemweno Kiptui v Kenya Pipeline Company Limited [2014] eKLR, and Walter Ogal Anuro v Teachers Service Commission [2013] eKLR. It was submitted that section 37(1) of the Employment Act operated to convert the Respondents' engagement into one for monthly wages, that the trial court correctly so found, that the dismissal was unprocedural for want of a show-cause letter or hearing, and that the judgment of Hon. J.B. Kalo be upheld with costs and interest. **Issues for Determination** 18. Having considered the record of appeal, the impugned judgment, the grounds of appeal, and the rival submissions, I am satisfied that the following issues arise for determination: (a) whether the trial court erred in the manner in which it dealt with the withdrawal of claims by the 1st, 2nd and 5th Respondents; (b) whether, upon a proper evaluation of the evidence, the 3rd and 4th Respondents proved that they were unfairly and unlawfully dismissed from continuous employment with the Appellant; (c) whether the reliefs awarded, including house allowance and unpaid leave, were established on the pleadings and the evidence; and (d) who should bear the costs of the suit and of this appeal. **Analysis and Determination** 19. This being a first appeal, it is my duty to reconsider and re-evaluate the evidence on record afresh and to draw my own conclusions, bearing in mind that I neither saw nor heard the witnesses and making due allowance for that disadvantage: Selle v Associated Motor Boat Co Ltd [1968] EA 123. I am equally guided by the principle that an appellate court will interfere with the findings of a trial court where it is shown that the court misdirected itself on the law, misapprehended the evidence, or arrived at a conclusion that the evidence, properly weighed, could not sustain: Mbogo v Shah [1968] EA 93. 20. I begin, as the matter is foundational to everything that follows, with the trial court's treatment of the withdrawal of claims. The 1st Claimant, Rogers Omondi Oyaro, was the sole witness who testified on behalf of all five Claimants at the operative hearing. Under cross-examination on 19th September 2024, he stated, in terms admitting of no ambiguity, that “we filed suit five of us but two have dropped out, being the 2nd and 5th [Claimants].” That was not an assertion volunteered by the Appellant, or advanced solely through its own witness; it was an admission made by the Claimants' own witness, as to a fact peculiarly within his knowledge as a co-litigant. An admission of that character, made by a party against the interest of persons he purported to represent, is of the highest probative value and required no further corroboration. 21. It is against that background that the concluding paragraph of the judgment must be read: “RW1 stated that some claimants have withdrawn their claims against the respondent. He did not produce documentary evidence to support his statement.” With respect, this was a vital misstep, and I say so for two reasons. First, the fact of withdrawal was not merely “stated” by RW1; it had already been admitted by CW1 himself, the Claimants' own witness, and an admission by a party binds that party without need of independent corroboration. It was, with respect, an elementary error to treat as an unproved defence assertion a fact that the Claimants' own witness had already placed beyond dispute. Second, the finding that RW1 “did not produce documentary evidence” overlooks the record: the Notice of Withdrawal of the 1st Claimant's Claim, signed by him personally, was on the trial court's file; the 2nd and 5th Claimants had each sworn affidavits on 8th February 2024 disowning the suit, and had each, on 28th June 2024, written directly to their own advocates to the same effect; and this material had been exhibited and was available to the trial court. To describe this body of documentary evidence, generated in the main by the Claimants themselves, as absent from the record was a plain misapprehension of the evidence actually on file. A finding that determines who is, and who is not, a proper party before the court — and therefore who may lawfully receive a monetary award — must rest on a careful and accurate audit of the record; it cannot rest on a mischaracterisation of what that record discloses. This was not a peripheral slip. It went to the very foundation of the judgment, for it determined which of the five named Claimants remained parties entitled to any relief at all, and I am satisfied that it constitutes precisely the kind of misdirection that entitles this Court, on a first appeal, to interfere with the findings of the court below. 22. The matter does not end there. It is common ground, and indeed conceded in the Respondents' own submissions on this appeal, that the 2nd and 5th Respondents withdrew their claims. What was never squarely confronted, either before the trial court or on this appeal, is the position of the 1st Respondent. The record shows that on 8th November 2024 he personally filed a Notice to Act in Person, dispensing with the firm on record, and simultaneously filed and signed a Notice of Withdrawal of his own claim against the Appellant. That document was drawn to the trial court's attention in the clearest terms by the Appellant's final submissions of 13th March 2025, which pointed to its presence on the court's own tracking system. It was, tellingly, not sufficiently denied by the Claimants, or at all: their final submissions of 7th March 2025 made no mention of it whatsoever, notwithstanding that the notice had by then been on the court file for close to four months, and they proceeded, undeterred, to press and quantify a claim of Kshs. 432,000 in the 1st Claimant's favour. In essence, the trial court erred in proceeding as though the fact of the 1st Claimant's withdrawal had not been proved. 23. The import of that withdrawal is not confined to costs or to technicality. Having himself withdrawn his claim, the 1st Respondent ceased, in law, to be a Claimant with any subsisting cause of action. More significantly still for the 3rd and 4th Respondents — the only two whose claims were never withdrawn or disowned — is this: the 1st Claimant's evidence-in-chief, given on 19th September 2024, consisted solely of the adoption of his own witness statement of 2nd April 2023. Unlike the earlier, and subsequently vacated, ex parte hearing of 31st August 2023, he did not on this occasion purport to adopt the witness statements of his co-Claimants. Neither the 3rd Claimant nor the 4th Claimant ever entered the witness box, took the oath, or gave evidence in support of his own case. A pleaded case, however well particularised, is not self-proving; it must be established by evidence, and one Claimant's account of his own engagement and his own dismissal — more so a Claimant who went on to disown that very claim — cannot stand as proof of a case belonging to another, which he was neither authorised, nor did he even purport, to present. On this ground alone, independent of the substantive merits of the dispute, I am satisfied that the claims of the 3rd and 4th Respondents were not proved and ought to have been dismissed for want of evidence. 24. I turn to a matter that has caused me real concern, and which I address with the seriousness it deserves. The concluding paragraph of the trial court's judgment does not resolve, one way or the other, which of the five Claimants were entitled to the awards made. It states only that “in the event any of the claimants has withdrawn their claim against the respondent, then the award made to such claimant shall not form part of the judgment and shall stand expunged from the record.” That is not a finding; it is a conditional formula that defers, to some unspecified future process, a determination that was squarely before the trial court and that it was its own duty to make. A judgment that awards a specific sum to a named party, and in the same breath renders that award provisional upon a fact the court declines to resolve, is neither definitive nor conclusive; and the decree drawn from this judgment, which entered sums against the Appellant in favour of all five Claimants without qualification, was left incapable of safe execution. It is not for a decree-holder, an execution court, or a judgment-debtor to resolve, after judgment, questions that were live before the trial court and required a definite finding of fact. 25. A trial court cannot resolve a contested and decisive question of fact by declining to resolve it. Where a fact is decisive of a party's entitlement to judgment, the court must find it, one way or the other; it may not discharge that duty by a conditional clause that leaves the parties, and any court later called upon to enforce the decree, to guess at what was actually decided. 26. Such indeterminate pronouncements are not a harmless drafting habit. They breed uncertainty, invite satellite litigation over execution, and undermine the finality that a judgment exists to provide. I record, with respect, that this is a practice trial courts must guard against: a determination left conditional at the point of judgment is a determination not yet made, and a court that has heard the evidence, and is in a position to resolve the question, ought to resolve it in the judgment itself and not leave it suspended. 27. Turning to the substance of the 3rd and 4th Respondents' claims, and even setting aside the evidential vacuum occasioned by their own failure to testify, I am not persuaded, on the material actually placed before the trial court, that continuous or permanent engagement was established. Section 47(5) of the Employment Act places the burden of proving unfair termination on the employee, a burden discharged, in the first instance, by placing before the court prima facie evidence that a termination occurred and that it lacked substantive or procedural justification. That burden, however, presupposes proof of the underlying contract of service and its character, permanent or casual, for it is only once continuous engagement within the contemplation of section 37 of the Act is established that the protections the Respondents invoked — notice, disciplinary process, and the reliefs flowing from unlawful termination of a term contract — come into play. The documents placed before the trial court by the Appellant, and not seriously controverted by the Respondents, showed engagement confined to isolated, scattered days across the years 2021 to 2023, a pattern consistent with the casual, need-based engagement the Appellant pleaded, and inconsistent with the continuous service section 37(1) requires before a casual engagement is deemed to convert to a monthly contract. The admission by the Appellant's own witness that he could not state with precision how many days the Respondents worked in a given year does not, without more, establish continuity of service; it establishes only imprecision in the Appellant's record-keeping, which is a different thing altogether, and it was an error to treat that admission as itself dispositive of the section 37 question, absent any evidentiary foundation from the Claimants themselves that they had in fact worked continuously for the requisite periods. Casual workers who did not work continuously cannot found a claim of unfair termination upon a contract of continuous or permanent service which the evidence, properly weighed, does not support, and I find that the 3rd and 4th Respondents did not discharge the burden section 47(5) placed upon them. 28. Finally, and in any event, even had the Respondents' case on liability been made out, I would not have sustained the awards made under the heads of house allowance and unpaid leave. Neither the Memorandum of Claim nor the witness statements on record plead, or depose to, any factual basis for entitlement to house allowance, whether at the rate of 15% of basic salary or any other rate; that figure appears for the first time, unexplained and unparticularised, in the schedule of computation annexed to the pleadings. A claim for a specific contractual or statutory benefit must be pleaded and proved as a matter of fact; it cannot be conjured at the stage of quantification, and a bare arithmetical formula, applied without an antecedent averment of entitlement, cannot found an award. The claim for unpaid leave suffers the same infirmity. These heads of relief, wanting any foundation in the pleadings or the evidence, could not have been granted even had the trial court been right to find for the Respondents on liability. 29. In the result, I find that grounds (a) through (e) of the Memorandum of Appeal all succeed. The trial court erred in the manner in which it dealt with the withdrawal of claims by the 1st, 2nd and 5th Respondents; erred in leaving that question unresolved in an indeterminate concluding paragraph rather than making the definite finding the evidence required and permitted; erred in finding that the 3rd and 4th Respondents had proved continuous or permanent engagement and unfair termination flowing from it; and erred in awarding reliefs, including house allowance and unpaid leave, unsupported by the pleadings or the evidence. It follows that the interest and costs awarded on a judgment that cannot itself stand must equally fall away. 30. On costs, it is trite that costs ordinarily follow the event, and no cause has been shown to depart from that rule. The Appellant has succeeded on this appeal and is entitled to its costs, both of the appeal and of the suit before the trial court. **Disposition** 31. For the foregoing reasons, I find that this appeal has merit. It is hereby allowed, and I make the following orders: (a) The appeal be and is hereby allowed. (b) The Judgment and Decree of the trial court delivered on 15th May 2025 in Mombasa MC ELRC No. E196 of 2023, and all consequent orders made therein, be and are hereby set aside in their entirety. (c) In substitution therefor, the Claimants' suit in Mombasa MC ELRC No. E196 of 2023 be and is hereby dismissed. (d) The costs of the suit before the trial court, and the costs of this appeal, shall be borne by the Respondents and paid to the Appellant. 32. It is so ordered. Read, signed and delivered this 16th day of July 2026. **OCHARO KEBIRA** **JUDGE**