https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1708

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT MOMBASA** **ELRC APPEAL NO. E050 OF 2025** **GEOFFREY MUSEMBI NDAMBUKI ………….…APPELLANT** **VERSUS** **IZWOF TRANSPORT LIMITED ……………………RESPONDENT** *[ Being an appeal against the whole judgment of Honourable Gathogo Sogomo [PM] in Mombasa MCELRC No. E.097 of 202, delivered 21st March, 2025’* **JUDGMENT** 1. The Appellant sued the Respondent in the above stated suit, claiming that he was at all material times, an employee of the Respondent. Further, his said employment was unfairly terminated, thus entitling him to various reliefs, thus; a. One month's salary in lieu of notice, Ksh. 40,000.00 b. Unpaid salary for January 2023, KShs. 40,000.00 c. Unpaid public holidays worked 1,333 x 5 days x 2 years Kshs. 13,330.00 d. House allowance for 22 months worked at the rate of 15%15/100x40,000x22 months Kshs. 132,000.00 e. Compensation for unlawful termination 40,000x12 Kshs. 480,000.00 f. Service pay 40,000/2 x2 years Kshs. 40,000.00 TOTAL Kshs. 745,330.00 g. Certificate of service 1. The Respondent resisted the Appellant’s claim in the Response to claim and counterclaim dated 3rd August, 2023. The Respondent admitted that the Appellant was its employee. However, it denied dismissing the Appellant and contended that he deserted duty after allegedly overstaying his assignment and stealing diesel, hydraulic fluid and six truck tyres. 2. The suit before the trial court proceeded by way of documentary evidence and was canvassed through the documents already filed, in accordance with Rule 59 of the Employment and Labour Relations Court (Procedure) Rules, 2024. 3. After hearing the parties in their respective cases, considering their evidence and submissions, the learned trial Magistrate allowed the Appellant’s claim partially, and dismissed the Respondent’s Counterclaim. **Appellant’s case in the lower court** 1. The Appellant stated that he was employed by the Respondent as a long-distance truck driver on 3rd April 2021, earning a monthly salary of Kshs. 40,000. His duties included transporting goods within Kenya and to other East African countries. 2. He states that he worked continuously and diligently until 4 February 2023, when his employment was terminated unfairly and unprocedurally. 3. According to him, on 2nd February 2023, he was assigned to transport maize to Mombasa Maize Millers. Upon arrival, he found about 20 trucks waiting to offload, which was unusual. He informed the Respondent’s director, Mr Osman Abdi, of the likely delay caused by the long queue. 4. Due to the delay, he spent the night at the premises of Mombasa Maize Millers. On 3rd February 2023, Mr Osman allegedly visited the premises and personally observed the long queue of trucks waiting to offload. 5. The Appellant states that Mr Osman then directed him to drive the truck to the Respondent’s yard at Mariakani Luqman Petrol Station. On 4th February 2023, he was instructed to take the maize to a company named Dola, where the truck was offloaded. 6. He was thereafter ordered to proceed to Vipingo, load goods, and transport them to Tororo, Uganda. However, before commencing the journey, Mr Osman called him and instructed him to take the truck to the garage. 7. Upon reaching the garage, the Appellant found another driver who informed him that he had been sent by Mr Osman with instructions to take over the truck and drive it to Uganda. 8. The Appellant states that Mr Osman then informed him that his services were no longer required because he had delayed offloading the goods at Mombasa Maize Millers. 9. He contended that his employment was terminated without notice, without any valid or justifiable reason, and without any disciplinary process. He further states that he was forced to leave the Respondent’s garage and instructed never to return to the Respondent’s premises. 10. The Appellant maintained that throughout his employment, he performed his duties diligently and that the termination was unfair, unlawful and contrary to the law. 11. He also states that the Respondent failed to issue him a certificate of service after termination. **Respondent’s case in the lower court** 1. The Respondent's case was that the Appellant absconded from duty. According to the Respondent, the Appellant had been instructed to offload at Vipingo from Mombasa and thereafter to proceed to Tororo, Uganda. The Respondent states that the Appellant instead ignored those instructions and overstayed for almost three days, thereby causing loss to the company. 2. The Respondent further stated that, due to the alleged overstay, the Appellant was instructed to report to the Respondent’s headquarters in Nairobi to explain himself. However, he allegedly arrived after business hours, which the Respondent contends was deliberate, as he had no intention of accounting for the delay. 3. The Respondent also denied the Appellant’s allegation that he received instructions from or was dismissed by Mr Osman Abdi. The Respondent states that Mr Osman Abdi was never its employee and had no authority to issue instructions or terminate the Appellant’s employment. 4. The Respondent denied owing the Appellant any salary arrears or terminal dues. It maintained that there was no unfair termination, or any termination, and that the Appellant absented himself from duty for fear of the consequences of his unexplained delay and alleged theft. 5. In its counterclaim, the Respondent reiterated that the Appellant was employed as a truck driver responsible for transporting cargo. It stated that the Appellant was instructed to offload at Vipingo and proceed to Uganda, but overstayed, causing the company substantial loss because the cargo was expected in Uganda within a specified time. 6. The Respondent stated that after the Appellant was instructed to return to the Nairobi head office to answer for the delay, he allegedly arrived late at night and proceeded to steal from the company. The Respondent alleges that the Appellant siphoned 280 litres of diesel fuel, took six new truck tyres, and approximately 100 litres of hydraulic fluid. 7. The Respondent further alleged that after taking the said items, the Appellant fled and left the truck running. The truck was allegedly discovered hours later by another employee. 8. The Respondent stated that it reported the matter to Mombasa Road Police Station under OB No. 10/04/02/2023. It further contended that police investigations were ongoing and that the Appellant had failed or refused to participate in the investigations. 9. The Respondent maintained that the Appellant absconded from duty and was liable for the loss allegedly suffered by the company. It therefore sought judgment on the counterclaim against the Appellant for; a) The amount used to replace the stolen items. b) Costs of the main claim and counterclaim. c) Interest on (a) and (b) above at court rates from the date of this Response to Claim and counterclaim until payment in full. **Appellant’s Reply to Memorandum of Response and to Counter-Claim** 1. In response to the counterclaim, the Appellant denied the allegations of theft against him. He specifically denied siphoning any diesel, as alleged by the Respondent, and further stated that he had never been summoned by the police to answer any charges relating to the alleged theft. 2. He therefore denied the Respondent’s allegation that he was wanted by the police or that he had refused to participate in any police investigations. **Judgment of the lower court**. 1. The court found that the employer-employee relationship between the Respondent and the Appellant was not disputed. and that the Claimant was employed by the Respondent. The Court went ahead to hold that the termination of the Appellant’s employment was unlawful and unfair. The Respondent did not prove that the Appellant deserted duty. 2. On the Respondent’s counterclaim, the court held that the claim was, in nature, a special damage claim. It required to be specifically pleaded and strictly proved through receipts, valuation reports or other sufficient evidence. The Respondent had not approached court in that manner required by the law. He consequently dismissed the counterclaim. 3. On notice pay, the court found that the Respondent did not issue the Claimant with one month’s notice or pay salary in lieu thereof as required under section 35(1)(c) of the Employment Act. The court therefore awarded the Claimant Kshs. 40,000 as one month’s salary in lieu of notice. 4. On house allowance, the court found that although an employer is ordinarily required to provide housing or pay house allowance, the applicable wage order provided a minimum wage of Kshs. 34,302.75 for a heavy commercial truck driver. Since the Claimant earned Kshs. 40,000 per month, the court construed the salary as inclusive of house allowance and dismissed that claim. 5. On unpaid salary, the court held that the employer had the duty to keep and produce employment records. Since the Respondent did not produce records showing that the Claimant had been paid his January 2023 salary, the court allowed the claim for unpaid salary and awarded Kshs. 40,000. 6. Regarding unpaid public holidays, the court held that the claim had not been specifically pleaded or proved. The court also found it unlikely that the Claimant had worked for over two years without resting on public holidays. Accordingly, the claim was dismissed. 7. Regarding service pay, the court held that the Claimant’s documents showed that NSSF deductions had been made. Accordingly, the Claimant was found not entitled to service pay, as he fell within one of the categories of employees statutorily barred from pursuing entitlement to service pay. 8. Regarding compensation for unfair termination, the court acknowledged that the claim fell within section 49 of the Employment Act. However, it declined to award compensation on the ground that the Appellant had not rebutted the allegations that a police report had been filed against him for the theft of diesel and tyres, and that he had abandoned the truck. The court treated those allegations as admitted and held that it would not allow the Claimant to benefit from his alleged delinquency. 9. On the certificate of service, the court declined the prayer on the basis that the Appellant had not shown that he had gone to the Respondent’s offices for clearance to pave the way for the issuance of the certificate. 10. On costs and interest, the court held that costs in employment matters are discretionary and that the principle that costs follow the event does not strictly apply. The court denied the Appellant costs, citing the alleged unrefuted transgressions against the Respondent’s property. **Appeal** 1. Dissatisfied with the judgment, the Appellant filed this appeal on the following grounds. 2. That the learned Magistrate erred in law and fact in failing to award the Appellant compensation for unlawful termination on the basis of failing to deny and traverse the allegations made by the Respondent that he was involved in the theft of diesel and abandoning the Respondent's truck yet the same were denied vide a reply to the Memorandum of Response and to Counter-Claim dated 8th February, 2024 and filed in Court on 9th February, 2024. 3. That the learned magistrate erred in law and fact in denying the Appellant compensation for unlawful termination on allegations of stealing the Respondent's diesel and abandoning the Respondent's truck despite the Court finding that the Appellant was unlawfully dismissed from work and that there was no proof that the Appellant committed the offence. 4. That the learned trial Magistrate erred in law and in fact in failing to award the Appellant costs of the suit on the basis of transgressions committed by the Appellant without proof that there were such transgressions. 5. That the learned magistrate was not keen to establish that the Respondent did not file a Response to the Appellant's case, and what the Appellant was responding to was an annexure of the draft memorandum of response filed together with a certificate of urgency dated 3rd August, 2023. 6. That the learned magistrate erred in law and in fact in failing to analyse and scrutinise all documents filed by the Appellant despite bearing such responsibility by virtue of the suit proceeding under Rule 59 of the Employment and Labour Relations Court Rules without viva voce evidence from witnesses. **Appellant’s submission** 1. The Appellant argues that the trial court erred in finding that he was not entitled to compensation on the ground that he had failed to deny the allegations in the Response and Counterclaim. He submits that he had in fact filed a reply to the Memorandum of Response and Counterclaim, and that the trial court failed to scrutinise the documents on record. 2. The Appellant further submits that the trial court erred in denying him compensation on the basis of allegations that he stole diesel and abandoned the Respondent’s truck. He contends that the Respondent failed to prove the alleged theft or misconduct, and therefore the allegations should not have been used to deny him relief. 3. He relies on section 49 of the Employment Act, 2007, and asserts that once the court determined that his dismissal was unlawful, he was entitled to compensation for unfair termination. 4. The Appellant further submits that the Respondent failed to prove its counterclaim, as the alleged stolen items were not properly proved and there was no evidence that he stole diesel, hydraulic fluid or any other items. 5. Regarding costs, the Appellant submits that the trial court erred in denying him costs on the basis of alleged transgressions that were not proved. He argues that costs follow the event and that, having succeeded in proving unlawful termination, he was entitled to costs of the suit before the trial court. 6. In conclusion, the Appellant prays that the appeal be allowed, that he be awarded compensation for unlawful termination, costs of the suit before the trial court, and costs and interest. **Respondent’s submissions** 1. The Respondent’s position is that the Appellant had filed the lower court claim seeking terminal dues, but failed to prove entitlement to the reliefs sought. It submits that the Appellant’s salary was inclusive of house allowance and that he was therefore not entitled to a separate award under that head. 2. Regarding the claim for unpaid public holidays, the Respondent submits that the Appellant failed to tender evidence showing that he worked on public holidays during the period claimed. It further argues that, as a long-distance driver, it would be highly improbable and unsafe for the Appellant to have worked continuously on most public holidays without rest. 3. On compensation for unfair termination, the Respondent submits that the Appellant bore the burden of proving that he was terminated and that the termination was unfair. It relies on sections 107 to 109 of the Evidence Act and argues that the Appellant failed to discharge that burden. 4. The Respondent also submits that evidence was tendered showing that the Appellant had engaged in theft and that he did not provide contrary evidence. On that basis, it argues that the Appellant was not entitled to compensation, costs or interest. 5. In support of its position, the Respondent relies on **Pius Machafu Isindu v Lavington Security Guards Limited [2017] KECA 225 (KLR).** 6. The Respondent submits that, similarly, the Appellant did not tender evidence showing that, after allegedly being terminated, he made any effort to clear from work or seek the issuance of a certificate of service. It argues that the manner in which the Appellant left employment supported the finding that he absconded duty. 7. The Respondent therefore submits that the trial court was correct not to award unpaid public holidays, service pay, compensation, costs and interest. It urges the Court to dismiss the appeal with costs. **Analysis and determination** 1. As this is a first appeal, this Court is required to re-evaluate the evidence and material before the trial court and arrive at its own independent conclusion, bearing in mind that the suit proceeded by way of documents under Rule 59 of the Employment and Labour Relations Court (Procedure) Rules, 2024. 2. From the outset, I must point out that the parties in this matter made lengthy submissions, some of which concerned matters that do not arise for determination in this appeal. In my view, whether the Applicant’s employment was terminated unfairly and the manner in which the separation occurred are not matters for this appeal. The Respondent has not filed a cross-appeal challenging the trial Court’s finding on those two aspects. 3. The sole significant issue arising for resolution in this appeal is whether the learned trial Magistrate erred in declining to grant the reliefs sought by the Appellant, given the premise on which the decision was based. 4. Section 49 [1] [c] of the Employment Act confers authority on the Courts to award compensatory damages for the unfair termination of employment or summary dismissal to an employee who has successfully challenged their employer’s decision to terminate their employment unfairly or to summarily dismiss them. However, it should be noted that this authority is discretionary and is exercised according to the circumstances of each case, taking into account the factors set out in section 49 of the said Act. The trial Court seems to have appreciated this much. 5. However, I must point out that the trial Court premised its decision to decline to grant the compensatory relief on an incorrect factor, which, in my view, stemmed from an improper or incomplete assessment of the material before he decided to proceed with the matter pursuant to Rule 59 of this Court’s procedure Rules. The learned trial Magistrate determined that the Appellant did not dispute the Respondent’s assertion that the Respondent lodged a report with the police alleging that the Appellant had stolen the Respondent’s property, and that, accordingly, the fact would be deemed admitted. Having admitted the theft, it could not be fair to compensate him with damages, as that would amount to rewarding his infractions. 6. This Court notes that the Appellant filed a Reply to Memorandum of Response and Counterclaim, dated 8th February 2024. He specifically traversed those matters that were raised in the Response and the Counterclaim, including the allegation that he did steal the Respondent’s property and that the Respondent made a report against him to the police. The denial of the remedy on the basis that it was erroneous. 7. As the denial was on an incorrect premise, and considering the manner in which the separation occurred, and the length of service of the Appellant, I hereby set aside the finding, and hold that the Appellant was entitled to a compensatory award under section 49[1][c], and award him one month’s salary in lieu of notice, KShs. 40,000. 8. The Appellant contended that the learned trial Magistrate erred in law and fact in refusing to award him the remedies of compensation for public holidays worked and unpaid house allowance. Considering the manner in which the Appellant couched his pleadings and witness statement, I am unable to agree with the Appellant that the trial Court erred in declining the remedies. I am in agreement with the reasoning of the learned trial Magistrate. 9. It is trite law that costs follow the event. A successful party in a suit can be denied costs only where good cause exists and not arbitrarily. I must state at this point that even in employment disputes, this golden rule should be applied. The learned trial Magistrate relied on a matter on which he had not conclusively decided, after considering the respective versions of the parties, to deny the Appellant costs. He exercised his discretion incorrectly. 10. In the upshot; 11. The Appellant’s appeal hereby succeeds partially. The trial Court’s decision to deny the Appellant compensation for unfair termination pursuant to the provisions of section 49[1][c] of the Employment Act is hereby set aside. The Appellant is granted two months’ gross salary, KShs. 80,000. 12. The costs of the lower court to be assessed on the sum awarded in [a] above, shall be paid to the Appellant. 13. The Costs of this appeal, assessed at KShs. 30, 000 are hereby awarded to the Appellant. **Read, Signed and Delivered this 11th June 2026.** **OCHARO KEBIRA** **JUDGE**