https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2157

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAKURU ELRC APPEAL NO. E037 OF 2023 (Before Hon. Lady Justice Anna Ngibuini Mwaure) GUMPLY LIMITED….…………..……………………..… APPELLANT VERSUS STEPHEN OKOTH OKUMU ….…………..………... RESPONDENT (Being an Appeal from the Judgment and Order of the Honourable Lina Okoth, Senior Resident Magistrate, delivered on 16th November 2023 in Nakuru MCELRC NO. E093 of 2023) JUDGMENT 1. The Appellant, being dissatisfied with the Judgment and Decree of the Honourable Lina Okoth, Senior Resident Magistrate, filed this appeal vide a Memorandum of Appeal dated 8th December 2023 and later filed an amended Memorandum of Appeal dated 19th August 2025, on the following grounds which is condensed that: 1. The learned trial magistrate erred in law and in fact and misdirect herself in purporting to grant the appellant a right of appeal and reducing the ELRC APPEAL NO. E037 OF 2023 JUDGMENT 1 | P A G E right to 14 days despite the fact that the right is granted by law for 30 days. 2. The learned trial magistrate erred in law and fact in holding or inferring that the Respondent was employed by the Appellant since 2009 despite overwhelming evidence to the contrary. 3. The learned magistrate erred in law and fact and misdirected herself in finding or assuming a continuous employment relationship between the Respondent and the Appellant in the absence of evidence or legal capacity to form such employment prior to incorporation. 4. The learned magistrate erred in failing to appreciate that the Appellant is a distinct corporate entity, unrelated in law or in fact to the entity referred to by the Respondent as “Janvil enterprises”, and that any claim based on such association is misplaced and unsustainable. 5. The learned trial magistrate erred in law and in fact and misdirect herself in finding that the Appellant unfairly terminated the Respondent from employment despite overwhelming evidence to the contrary. 6. The learned trial magistrate erred in law and in fact and misdirect herself in failing to find that it is the Respondent who brought about the termination through voluntary resignation. ELRC APPEAL NO. E037 OF 2023 JUDGMENT 2 | P A G E 7. The learned trial magistrate erred in law and in fact and misdirect herself in shifting the burden of proof to the Appellant when the burden lay on the Respondent. 8. The learned trial magistrate erred in law and in fact and misdirect herself in awarding damages for unlawful termination when the Respondent had not proved any unlawful termination. 9. The learned trial magistrate erred in law and in fact and misdirect herself in finding that the Claimant had not taken off duty despite overwhelming evidence that the Respondent did not work on Sundays and was therefore not entitled to any more off duty. 10. The learned trial magistrate erred in law and in fact and misdirect herself in awarding damages for off duties when the Respondent was not so entitled. 11. The learned trial magistrate erred in law and in fact and misdirect herself in finding that the period of employment of the Respondent run from the date of incorporation of the Appellant. 12. The learned trial magistrate erred in law and in fact and misdirect herself in dismissing the Appellant’s counterclaim by failing to appreciate that the burden of prove in civil claims is on balance of probabilities and that the Appellant ELRC APPEAL NO. E037 OF 2023 JUDGMENT 3 | P A G E discharged the said burden to the required standard. 2. The Appellant prays that: a) This appeal be allowed by reversing and setting aside the judgment and the decree of the Chief Magistrate Court at Nakuru by Hon. Lina Akoth SRM delivered on 16th November 2023 in MCELRC No. E093 of 2023: Stephen Okoth v Grumply Limited and substituting thereof with the following: i. An order dismissing the suit ii. Judgement on the counterclaim b) That the costs of lower court and this appeal be awarded to the Appellant. 3. The appeal was disposed of by way of written submissions. Appellant’s written submissions 4. The Appellant relied on Rule 12(2) of the Employment and Labour Relations Court (Procedure) Rules 2024, which provides that appeals from magistrates’ courts must be filed within 30 days, and any judicial directive purporting to reduce this statutory period to 14 days is ultra vires. ELRC APPEAL NO. E037 OF 2023 JUDGMENT 4 | P A G E 5. The Appellant submitted that the finding of unfair termination was erroneous because documentary evidence a resignation letter proved voluntary separation. Pursuant to section 107 of the Evidence Act, the burden of proof lies on the party asserting facts, and under Section 47(5) of the Employment Act, the employee bears the burden of proving unfair termination before the evidential burden shifts to the employer. The Appellant relied on Kaleche v S.C Johnson & Sons Kenya Limited [2025] KEELRC 3713 (KLR) to affirm that burdens must be discharged by the party legally responsible. 6. The Appellant submitted that the Respondent’s denial of the resignation letter was unpleaded and unsubstantiated, contrary to the principle in University of Nairobi v Otundo [2022] KEELRC 12893 (KLR) and Gandy v Caspair Air Charters Ltd. [1956] 23 EACA 139, which emphasize that parties are bound by their pleadings. 7. The Appellant submitted that the award for off-days was unsupported, as evidence showed the Respondent rested on Sundays, consistent with ELRC APPEAL NO. E037 OF 2023 JUDGMENT 5 | P A G E Elemech Engineering Kenya Limited v Njirani [2026] KEELRC 1376 (KLR) requiring specific pleading and proof. 8. The Appellant submitted that the trial court wrongly extended the employment period to the date of incorporation instead of March 2021 when operations began. The Appellant submitted that the dismissal of the counterclaim misapprehended the resignation letter, which indicated immediate resignation rather than notice. 9. Finally, on costs, the principle that costs follow the event was misapplied, as the erroneous finding of liability led to an improper award of costs to the Respondent. 10. The Appellant therefore prays that the appeal be allowed, the trial court’s findings and awards set aside, the counterclaim upheld, and costs awarded to the Appellant. Respondent’s written submissions 11. The Respondent submitted that the Appellant’s case is unmeritorious and an attempt to re-litigate facts already settled by the trial court. The Respondent stressed that the dismissal was unfair, as no notice, ELRC APPEAL NO. E037 OF 2023 JUDGMENT 6 | P A G E hearing, or valid reason was given, contrary to sections 41 and 45(2) of the Employment Act, while the alleged resignation letter was contested and unproven under section 47(5) of the Employment Act. The Respondent relies on Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR) to show jurisdiction flows from statute, not judicial notes, and invokes Article 159(2)(b) of the Constitution on expeditious justice. On appellate restraint, authorities such as Selle & Another v Associated Motor Boat Co. Ltd & Others (1968) EA 123 and Peters v Sunday Post Ltd (1958) EA 424 are cited, affirming that appellate courts rarely disturb factual findings. The Respondent further cited the cases of Kenya Union of Commercial, Food and Allied Workers v Meru Central Dairy Co-operative Union Limited [2015] KEELRC 102 (KLR) and Mutunga Nyamai v Chancery Restaurant Limited t/a China Plate [2020] KEELRC 405 (KLR), underscoring the employer’s duty to prove resignation when alleged. 12. On continuity of service, reliance is placed on section 2 of the Employment Act and CMC Aviation Limited v Mohammed Noor ELRC APPEAL NO. E037 OF 2023 JUDGMENT 7 | P A G E [2015] KECA 775 (KLR), which holds that a change in corporate identity does not extinguish accrued employment rights. The dismissal of the counterclaim is defended through Gandy v Caspair Air Charters Ltd [1956] 23 EACA 139, which binds parties to their pleadings, and Kaleche v S.C Johnson & Sons Kenya Limited(supra), which confirms that a counterclaim for notice pay collapses where dismissal, not resignation, is proved. The Respondent also cited the case of Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 others [2014] KECA 403 (KLR) on adverse inference where employers fail to keep records. 13. Ultimately, the Respondent prays for dismissal of the appeal with costs, affirming that the trial court’s judgment was thorough, reasoned, and firmly grounded in statutory provisions and case law. Analysis and determination 14. Being the first appeal, it is the court’s duty to reassess the evidence presented, conduct its own analysis, and reach independent conclusions in order to determine whether the trial court’s findings align with both the evidence and the applicable law. The ELRC APPEAL NO. E037 OF 2023 JUDGMENT 8 | P A G E court should, however, bear in mind that it did not see the witnesses as they testified and give due allowance as reiterated above in the case of Selle v Associated Motor Boat Co Ltd & Others(supra) and Peters vs Sunday Post Limited(supra) 15. Having considered the Memorandum of Appeal, the Record of Appeal, Supplementary Record of Appeal and the submissions of the parties as well as the applicable law, the issue for determination is whether the trial Magistrate erred in law and in fact in entering judgment in favour of the Respondent. 16. In Kenya Union of Domestic Workers, Hotels, Educational Institutions, Hotels and Allied Workers (KUDHEIHA) v United Kenya Club [2024] KEELRC 761 (KLR), the court dismissed the appeal on grounds that the 3rd grievant voluntarily resigned from employment. 17. In Mutunga Nyamai v Chancery Restaurant Limited t/a China Plate(supra), the court held that it is the responsibility of the employer’s duty to prove resignation. ELRC APPEAL NO. E037 OF 2023 JUDGMENT 9 | P A G E 18. Section 47(5) of the Employment Act provides as follows: “For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer.” 19. In this appeal case, the Respondent was employed by the Appellant as a machine operator. On 3rd June 2022, the Respondent was involved in an accident, sought medical treatment, and remained away from work with permission. However, on 5th July 2022, he was verbally informed that his employment had been terminated without notice. The Appellant, on the other hand, contends that the Claimant voluntarily resigned without notice through a resignation letter dated 30th July 2022, and therefore seeks one month’s gross salary in lieu of notice by way of counterclaim. It is further the Respondent’s position that the company was only incorporated on 15th October 2020, and did not previously exist as Janvil Limited, with the ELRC APPEAL NO. E037 OF 2023 JUDGMENT 10 | P A G E employment contracts between the parties being verbal in nature. The trial magistrate held that the Appellant had been unfairly terminated and awarded him the reliefs sought. 20. In law, he who alleges must prove, and this principle is codified under sections 107, 108 and 109 of the Evidence Act. In this case, the Appellant alleged that the Respondent voluntarily resigned. There is a resignation letter dated 30th July 2022 confirming he resigned from this job and it was up to the Respondent to avail evidence that he was coerced to resign. The resignation letter does not indicate constructive dismissal or termination at all. The court sees no documents or even oral evidence to demonstrate that the Respondent was terminated. The concrete evidence if anything is the resignation letter by the Respondent. There is no satisfactory justification why the trial Magistrate concluded the Respondent was terminated. Indeed, in the judgment she states that since there is no evidence why the Claimant was terminated, it would be implied that termination was on medical grounds. The court ELRC APPEAL NO. E037 OF 2023 JUDGMENT 11 | P A G E therefore finds there is no proof from the pleadings or at all that the Respondent was unfairly terminated. The trial Magistrate relied on presumption. The Claimant resigned from his employment and although he recants his resignation letter, there was no expert evidence to prove otherwise. It was upon Respondent indeed to prove his signature was forged. The court would be guilty of presuming the Respondent was unfairly terminated and yet there is no evidence to prove the same. The court therefore agrees with the Appellant that he did not unfairly terminate the Respondent but Respondent resigned from his employment. The Appeal therefore succeeds. 21. In view of the foregoing, the court finds the Respondent is not entitled to: (a) 12 months compensation as he resigned from his employment. (b) He is not entitled to salary in lieu of notice. (c) Overtime and off duties are also not proved by the Respondent and are not awarded. ELRC APPEAL NO. E037 OF 2023 JUDGMENT 12 | P A G E (d) The award the court finds the Respondent is entitled to is house allowance as awarded by the trial court being Kshs.53,244/=. (e) The prayer for counterclaim was well handled by the trial court and stands dismissed. (f) Each party will bear their costs for the trial court proceedings and for the appeal. (g) Interest will apply from date of Judgment of this court till full payment at 14% per annum. Orders accordingly. Dated, Signed and Delivered virtually at Nakuru this 24th Day of July, 2026. ANNA NGIBUINI MWAURE JUDGE ORDER In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April ELRC APPEAL NO. E037 OF 2023 JUDGMENT 13 | P A G E 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE ELRC APPEAL NO. E037 OF 2023 JUDGMENT 14 | P A G E