Mwololo v Sana Industries Company Limited (Appeal E215 of 2025) [2026] KEELRC 2445 (KLR) (31 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **APPEAL NO. E215 OF 2025** **ROSEMARY SYIKONYO MWOLOLO APPELLANT** *VERSUS* **SANA INDUSTRIES COMPANY LIMITED RESPONDENT** **(Being an appeal from the Judgment of Hon. Joseph Were, delivered on 13 June 2025 in Ruiru MCELRC No. E290 of 2024)** **JUDGMENT** The appeal arises from the judgment delivered on 13 June 2025 in Ruiru MCELRC No. E290 of 2024. The appeal is on the grounds: 1. *The Honourable Magistrate erred in law and fact by failing to consider the appellant’s written submissions and documentary evidence adduced before the trial court in arriving at its conclusion* 2. *The learned Magistrate erred in law and fact in finding that the appellant failed to prove her case on the balance of probabilities on unlawful termination on account of redundancy* 3. *The learned Magistrate erred in law and fact in failing to consider that the appellant’s employment was terminated without a valid reason and in breach of the fair procedure provided under section 40 of the Employment Act, 2007, thereby arriving at a wrong finding* 4. *The learned trial magistrate erred in law and fact in failing to award the appellant terminal dues resulting from the unfair termination on account of redundancy* 5. *The learned trial magistrate erred in law and fact in failing to appreciate that the respondent failed to produce any documentary evidence in support of the allegations laid by it, hence arriving at a wrong conclusion.* The background of the appeal is the claim filed by the appellant. The appellant claimed that she was employed by the respondent on 10 July 2019 in the scaling department earning a salary of Kshs. 17,420 per month, stationed at Ruiru. She served the respondent until December, 2021, when she was unfairly, unlawfully, and unprocedurally dismissed on account of redundancy, without being paid her terminal benefits. The appellant claimed that several people, including her, were called out by the respondent's Human Resource Officer, who told them not to report for work the following day because of a work reduction, and consequently terminated their employment on the grounds of redundancy. The termination was unlawful as no notice of termination was issued to the appellant as required under section 40 of the Employment Act (the Act). There was no notice to the labour officer, no pay in lieu of notice, and insufficient notice; the respondent violated section 51 of the Act. The appellant prayed for the following: 1. A declaration that the appellant’s termination/dismissal on account of redundancy was unlawful, unfair and unprocedural 2. An order for the respondent to pay the appellant Kshs. 341,456 3. Certificate of service 4. Interest on (b) above 5. Costs of the claim In reply, the respondent averred that the appellant was employed as a casual worker sometime in June 2021, would work intermittently depending on the availability of work, and was earning a consolidated wage of Kshs. 672 paid bi-weekly depending on the number of days worked. The appellant reported to work on 1 December 2021 but sought permission to go and sought a bank issue. She never returned after the said date, and after about a week, the respondent sought to establish the appellant's whereabouts by formally issuing a notice to show cause dated 8 December 2021. The same was served upon the labour office and the union shop stewards, for dispatch to the appellant. The appellant failed to respond to the notice to show cause despite being required to do so. The respondent further required the appellant to return to her workstation vide a Return-to-Work Notice dated 15 December 2021, but the appellant failed to report to work. The respondent consequently organised a disciplinary hearing by way of the notice dated 11 April 2023 and informed the appellant. Neither the appellant nor her representative reported on the very date in question. The Respondent issued another disciplinary hearing notice dated 20 December 2021, but the appellant failed to attend. The respondent consequently terminated the appellant by issuing the termination notice dated 5 January 2022 for neglect and refusal to participate in the fair process as stipulated by the Act. The appellant’s salary included a house allowance, and there is no justification for the notice pay, since it was the appellant who failed to respond to the notice to show cause and to subject himself to the disciplinary process. According to the respondent’s policy, leave is always taken or paid, and no employee is allowed to carry over or carry forward pending leave. The respondent had duly settled all the outstanding sums payable. The respondent urged that the claim be dismissed with costs. The learned magistrate assessed the evidence and found that the appellant was a casual employee, as she was paid every two weeks for the number of days worked. There was no evidence of regular monthly payments as alleged in the sum of Kshs. 17,420. The court further found that the appellant, being a casual employee, was entitled only to a day’s notice of termination. Wages paid to a casual employee include a house allowance. Casual employees are not entitled to leave and cannot seek to recover the same from the employer. As the appellant deserted her employment, she had no recourse to the reliefs claimed. The appellant submitted that under section 74 of the Act, it is the employer's responsibility to keep employment records; hence, the failure to produce them reasonably leads to the conclusion that whatever the employee says is most probably true. The appellant served from 10 July 2019 to 1 December 2021, a period of over 2 years. The respondent has not produced any evidence to confirm that the appellant was not in regular and continuous employment. In **Empire Feeds Ltd versus King’ou [2022] KEELRC 1501 (KLR),** the court held that employment was permanent, as there was no other evidence, aside from the day-shift casual payroll, that the claimant was not in its employment regularly and continuously. The respondent employed the appellant as a permanent employee earning a basic salary of Kshs. 17,420 per month, and this assertion was not challenged. The appellant submitted on the redundancy that no notice was issued to the appellant and the labour officer, as the appellant was not a member of a trade union in compliance with section 40(1)(b) of the Act, and the termination did not abide by the conditions laid down under the Act. The appellant further submitted that section 41 of the Act was not complied with before the termination on the grounds of misconduct. In **Nicholus Muasya Kyula v Farmchem Limited Industrial Cause 1992 of 2011 [2012] LLR 235 (ICK),** the court held that it is insufficient for the employer to allege misconduct against the employee. The employer is required to have internal systems and processes to conduct administrative investigations and verify the occurrence of misconduct before deciding to terminate. In **Walter Ogal Anuro vs Teachers Service Commission versus Walter Ogal Anuro [2013] eKLR**, for termination of employment to pass the fairness test, there must be both substantive and procedural fairness, and substantive justification has to do with the establishment of a valid reason for the termination, while procedural fairness addresses the procedure adopted by the employer in effecting the termination. The appellant submitted that assuming that there was misconduct as alleged, there was no fair hearing. No notice to show cause was issued. There is no evidence of service. Hence, the trial court failed to address and consider the appellant's oral submissions and documentary evidence in arriving at its conclusion. The appellant urged the court to allow the appeal and set aside the trial court’s decision in its entirety. The respondent, on its part, submitted that the appellant absconded work as correctly found by the trial court, leading to the initiation of disciplinary proceedings. The appellant had the burden of proof that she was terminated on account of redundancy. This is because redundancy is a specific statutory mode of termination and cannot be assumed from a bare allegation of a work reduction or of a supervisor telling her to go home. In **Komu v Sana Industries Limited [2025] KEELRC 75 (KLR)**, the court held that redundancy is a highly regulated separation process under section 40 of the Act which requires notices to be issued to the union of the individual non-unionised employee and the area labour officer. The appellant pleaded redundancy but did not produce any redundancy notice, termination letter, notice to the labour officer, list of affected employees, restructuring memo or any document showing that her position would become superfluous. The appellant cannot invoke section 40 without first proving that the employment relationship ended through redundancy. In **Hassanath Wanjiku v Vanela House of Coffees [2018] eKLR,** the court held that where an employee is not declared redundant, the issue of severance pay does not arise. The respondent also submits that notice pay is payable only where termination by the employer is proved, and no notice or payment in lieu of notice was given. Since the appellant failed to prove unfair termination, the claim for notice pay collapsed. The claim for house allowance was not proved, as the appellant pleaded a global figure but did not provide a contract, wage order analysis, pay slip computation, or legal basis showing that the allowance was payable separately. On the unpaid leave, in **Rogoli Ole Manadiegi v General Cargo Services Limited [2016] KEELRC 1607 (KLR),** the court held that an employee claiming overtime, public holidays or similar employment dues must show the specific days or hours claimed and justify the computation which applies to the appellant’s case. **Determination** This is a first appeal. The court is required to review the record, reassess the findings, and reach a conclusion. However, take into account that the trial court had the chance to hear the witnesses testify and hence make this provision. On the nature of employment, the respondent asserts that the appellant was a casual employee earning a daily wage paid bi-monthly. Under section 2 of the Act, a casual employee is one whose employment starts and ends each day. Payment is made at the close of the day. Any continuous work beyond the defined casual employment is protected under section 37 of the Act as held in [**Kenyatta University v Maina [2022] KECA 1201 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1201/eng%402022-11-04)**.** The court held that it is an unfair labour practice to keep an employee on and off work or to pay for days worked, even though the nature of the employment is not casual. Where the intention is to have the employee for seasonal work, the employer has the legal duty to issue a written contract under such terms and definitions. In [**Kenyatta University v Thomas & 25 others [2025] KECA 1014 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1014/eng%402025-05-30)**,** this position was reiterated. In this case, the appellant was not paid daily but bi-monthly. The nature of work was not aligned with the day. She reported every morning and was assigned duties. She became a protected employee under section 37 of the Act, with rights and benefits thereunder. However, the daily wage of Ksh.672 in Ruiru in 2021 was higher than the legal minimum. 600 per day. The daily wage includes a house allowance. The appellant asserts that she reported to work on 1 December 2021 with several others and was called by the human resources manager, who told them that work had been reduced and that they should not report to work. The respondent asserts that the appellant reported to work, was asked to visit the bank, and then absconded from duty. Several notices were issued, including a disciplinary hearing notice, but she failed to attend the hearing, resulting in her termination. Indeed, as submitted by the appellant, under section 10(6) and (7) of the Act and section 74 thereof, the employer has the legal duty to produce work records in an employment dispute. Where the appellant reported to work and asked for time off to go to the bank, there is no evidence of such matter at all. Absence from the shop floor must then be at the respondent's instance. The information shared by the human resource manager stands correct. However, the motions of reduced work as submitted by the respondent must abide by the provisions of section 40 of the Act. Notice must be issued, and the Labour Office informed. The notice terminating employment in this regard can be written or oral, as held in [**Africa Nazarene University v David Mutevu & 103 others [2017] KECA 381 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2017/381/eng%402017-07-28)**.** Where the employer intends to terminate employment for operational reasons, notices to employees must be issued, and a personal notice to the affected employee must be served, as held in [**Barclays Bank of Kenya Ltd & another v Gladys Muthoni & 20 others [2018] KECA 718 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2018/718/eng%402018-03-16)**.** In this case, there is no notice to the appellant of any redundancy. The assertion by the respondent that she absconded duty after attending at the bank is also unsupported by evidence. The respondent filed various notices, alleged to have been issued to the appellant, for absconding from duty. The notice dated 4 November 2024 regarding alleged abscondment of duty has no forwarding address for the appellant. If the alleged abscondment began on 1 December 2021, issuing a notice on 4 November 2024 is way out of time. The notice dated 8 December 2021 also does not include the appellant's forwarding address. The notice dated 15 December 2021, calling the appellant back to work, was sent internally through the Wing G Section. The logic of these notices is lost. The alleged abscondment of duty could not have been addressed through internal notices to the appellant. The facts stated by the appellant, namely that the human resources manager sent her and her colleagues away on 1 December 2021, are correct. The due process for an employee protected under section 37 of the Act was not observed. Notice, reasons and justification for termination of employment were necessary in this case, as held in [**Isindu v Lavington Security Guards Ltd [2017] KECA 225 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2017/225/eng%402017-11-03). In this regard, the employment was wrongfully and unfairly terminated. There was no due process or justification. Under sections 45 and 49 of the Act, the appellant is entitled to compensation. The appellant worked from July 2019 to December 2021, a period of 2 full years. Compensation at three months is hereby found sufficient. On the daily wage of Ksh. 672 x 30 x 3 = Ksh. 60,480. The appeal is therefore found with merit. Costs for the trial court and the appeal are justified. **Accordingly, the judgment in Ruiru CMELRC E290 of 2024 is hereby set aside. Judgment is entered for the appellant in the following terms:** 1. **Employment terminated wrongfully and unfairly.** 2. **Compensation KSh. 60,480.** 3. **Costs of the appeal and the trial court proceedings.** **Delivered in open court this 31st day of August 2026** **M. MBARŨ** **JUDGE** **In the presence of:** **Court Assistant: Kemboi** **……………………………………………… and …………………………………..………**