https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2325

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **ELRC APPEAL NO. E004 OF 2025** *(Before D. K. N. Marete)* **JOSEPH SIANGWE OMOYA………………………………………………APPELLANT** **VERSUS** **GIANT PLUMBING LIMITED…………………………………...………RESPONDENT** **JUDGMENT** This matter was originated by way of a Memorandum of Appeal dated 19th December, 2024. It is an appeal from a judgment delivered on 29th November, 2024 at Milimani in Milimani CMELRC Cause No. E1725 of 2021: It comes out as follows; 1. *The Learned Magistrate erred in law and fact by finding the claim unmeritorious without proper consideration of the facts and the Appellant’s evidence.* 2. *The Learned Magistrate erred in law and fact by relying on the original Statement of Claim dated 26th August, 2021 to make his determination, as opposed to the Amended Memorandum of Claim dated 30th May, 2023.* 3. *The Learned Magistrate erred in fact by holding that the Appellant absconded duty hence there was no way the Respondent was going to conduct any disciplinary hearing yet the Respondent had the Appellant’s contact information.* 4. *The Learned Magistrate erred in law and fact by admitting the Respondent’s allegations that the Appellant absconded work without any evidence of the same on record.* 5. *The Learned Magistrate erred in law by failing to determine whether a notice of termination of services was issued before the Appellant’s termination of employment.* 6. *The Learned Magistrate erred in law by failing to determine whether the Respondent gave valid reasons and grounds for termination of the Appellant’s employment.* 7. *The Learned Magistrate erred in law by failing to determine whether the Appellant was paid his terminal dues including unutilized leave days, gratuity/service pay and salary in lieu of notice.* 8. *The Learned Magistrate erred in law and fact by failing to consider whether the Appellant was entitled to compensation not exceeding twelve months’ gross salary at the time of dismissal.* 9. *The Learned Magistrate erred in law and fact by not considering whether a Certificate of Service was issued to the Appellant upon separation.* 10. *The Learned Magistrate erred in law and fact by taking irrelevant considerations into account.* The Appellant prays for orders: 1. *The judgment and decree of the lower court delivered on 29th November 2024 in dismissing the claim with costs be set aside in its entirety.* 2. *This Honourable Court be pleased to enter judgment in favour of the Appellant as against the Respondent as prayed in the Amended Memorandum of Claim dated 30th May 2023.* 3. *The costs of this appeal and of the proceedings in the lower court be borne by the Respondent.* It is the Appellant’s case and submissions as presented before the trial court through the following documents, all of which form part of the Record of Appeal: a Memorandum of Claim dated 26th August 2021 together with a Witness Statement and List of Documents of even date; a Notice of Change of Advocates dated 11th April, 2022; an Application to Amend dated 14th September 2022 supported by the affidavit of Okullo George Odhiambo; an Amended Memorandum of Claim dated 30th May, 2023 filed pursuant to leave granted on the same date by Hon. Wendy Micheni (CM); a Claimant’s Response to Reply to Amended Statement of Claim dated 25th October, 2023; and Written Submissions dated 29th October, 2024. Before this Court, the Appellant filed Written Submissions dated 26th February, 2026 through ANO Advocates LLP. The Appellant’s case as presented before the trial court is as follows. On or about July, 2017 he was engaged by the Respondent as a shop attendant at a monthly salary of Kenya Shillings Eighteen Thousand (Kshs. 18,000.00), paid in cash. At the time of his engagement, the Respondent was operating under the name Hamidun Enterprises Limited which changed its name to Giant Plumbing Limited in the year 2020. Both entities belong to and are managed by one, Ali Hussein Mohammed. Throughout the duration of his employment, the Respondent remitted NHIF contributions in the Appellant’s name, first under Hamidun Enterprises Limited and then under Giant Plumbing Limited. The NHIF Member Data Summary produced in evidence and marked as Exhibit JSO1 confirms uninterrupted contributions from July, 2017 to July, 2021. The Appellant testified as PW1 before the trial court on 10th July, 2024 adopting his Witness Statement dated 26th August, 2021 and his Amended Memorandum of Claim dated 30th May, 2023. He confirmed that he had served the Respondent diligently from July, 2017 to 5th August, 2021, a period of approximately four years, without any record of warning, misconduct, or disciplinary action. No employment contract, payslips, or leave records were ever issued to him. On 5th August, 2021 his employment was verbally and unilaterally terminated by the Respondent’s supervisor. He received no notice, no explanation, and no hearing prior to the termination. In cross-examination, the Appellant acknowledged that on the material day, this being the period of the COVID-19 pandemic, he took his child to school and upon getting to the bus stage there was no vehicle available and he therefore travelled the following day. He maintained that he informed his employers of his circumstances and they agreed. He denied that he simply decided not to go to work. He further stated that following the termination, when he demanded his dues, the Respondent’s manager sent him Kshs. 10,000.00 via MPESA marked as Exhibit JSO2 which he contended was not his terminal dues, his salary having been paid monthly and not weekly. He confirmed he had been fired for no reason. In re-examination, the Appellant confirmed he worked normally until he was dismissed. He had no warning letter. He clarified that the Kshs. 10,000.00 was paid to him much later when he had rent issues and after he had made a demand, and that he was not called back to work thereafter. A formal demand letter dated 11th August, 2021 was dispatched by his then-advocates Omondi, Omeri & Mwasaru demanding terminal dues. The Respondent did not respond to it. In his written submissions before the trial court dated 29th October, 2024 the Appellant submitted that the Respondent failed to follow the mandatory provisions of section 41 of the Employment Act, 2007, which requires notification and hearing before termination on grounds of misconduct. Besides, the Respondent failed to discharge its burden under section 43(1) to prove the reason for termination; and that the termination was accordingly deemed unfair under section 45. The Appellant relied on **Walter Ogal Anuro v Teachers Service Commission [2013] KLR** for the dual requirement of substantive justification and procedural fairness. He further relied on **Alphonce Maghanga Mwachanya v Operation 680 Limited (Cause 146 of 2012) [2013] KEHC 3275**, **KLR** and **Noor v Lake Oil Limited (Cause 2 of 2019) [2024] KEELRC 2732**, **KLR** on quantum. He sought payment of unutilized leave days Kshs. 90,000.00, gratuity Kshs. 45,000.00, one month’s salary in lieu of notice Kshs. 18,000.00, and twelve months’ compensation for unfair termination Kshs. 216,000.00, all totaling Kshs. 369,000.00 as well as a Certificate of Service and costs. The Respondent’s case and submission was presented before the trial court through a Reply to Claim dated 3rd November, 2021 a Reply to Amended Statement of Claim dated 19th October, 2023 and a witness statement of Ali Hussein Mohammed dated 13th June, 2022. Before this court, the Respondent also filed written submissions dated 23rd February, 2026. In his Witness Statement dated 13th June, 2022 and adopted at trial as DW1 on 16th October, 2024 Ali Hussein Mohammed described himself as a Director and manager of Giant Plumbing Limited. He stated that on 5th August 2021 the Appellant reported to work having failed to report from a prior period. He asked the Appellant for an explanation for his absence but the Appellant refused, left the job and only later sent a demand letter. He maintained the Appellant was never dismissed. He expressed the view that the claim should be dismissed and confirmed the company did not wish to pursue a counterclaim. In cross-examination, DW1 confirmed he is both a Director and manager, and that there are two directors, with his co-director having given him authority to appear in court. He stated he would need to look at the employment contract to confirm when the Appellant started working, estimating the service at 2 to 3 years. He confirmed the salary was Kshs. 16,000/= per month, paid in cash without any signing record, with advances given on the 15th of each month. He confirmed his advocates held the NHIF records. He acknowledged having no leave records, describing leave as oral. He confirmed he had given the Appellant four days to go to the village, but that instead of returning on the agreed Tuesday, the Appellant came back on Thursday, and when he asked for an explanation, the Appellant left. In re-examination, DW1 confirmed the Appellant agreed he had paid his NSSF contributions. He described the Appellant as a casual worker and stated that the Respondent only took an ID card copy and did not keep records. He then offered the following: “I had given him 4 days off but he added 2 that’s when we disagreed when I asked time I think he had gotten another job the following day, he didn’t come.” In its Written Submissions dated 23rd February, 2026 the Respondent submitted that this being a first appeal, the court’s responsibility is to rule on the evidence on record and not to introduce extraneous matters. It relied on **Kenya Ports Authority v Kuston (Kenya) Limited (2009) 2 EA 212** in this regard. On the principal issue, the Respondent submitted that the Appellant absconded duty, relying on his cross-examination admission that he did not report to work on the material day. It argued the Appellant never communicated to the employer in writing, never returned to explain himself, and showed no interest in the employment. It invoked section 44(4) of the Employment Act, 2007 and relied on **Banking Insurance and Finance Union (Kenya) v Barclays Bank of Kenya Limited [2014]** for the proposition that being away from work without communication amounts to absconding and a negation of the contract of employment. The Respondent further invoked **Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others [2014] eKLR** for the proposition that parties are bound by their pleadings. It prayed for dismissal of the appeal with costs. The issue for determination therefore are; 1. Whether the trial court erred by proceeding on the basis of a superseded pleading. 2. Whether the Appellant’s employment was unfairly and unlawfully terminated. 3. Whether the Appellant is entitled to the reliefs sought and in what measure. On the standard of review, a first appellate court must reconsider the evidence, evaluate it independently and arrive at its own conclusions, while bearing in mind it did not observe the witnesses testify. Interference is warranted where the trial court misdirected itself in law, misapprehended the evidence, took irrelevant factors into account, ignored relevant ones, or reached a conclusion that the evidence cannot support. This is the position in the authorities of **Selle and Another v Associated Motor Boat Co. Ltd [1968] EA 123** and **Peters v Sunday Post Limited [1958] EA 424**. On the 1st issue for determination, that is whether the trial court erred by proceeding on the basis of a superseded pleading, the legal position is clear beyond argument. Once a court grants leave to amend a pleading and the amendment is duly filed, the original pleading is spent and ceases to have any legal life. The court is thereafter bound by the amended document as the sole expression of the party’s claim. This follows from section 100 of the Civil Procedure Act and Order 8 Rule 3 of the Civil Procedure Rules, and has been consistently reaffirmed at the highest levels of judicial authority as provided in the authority of **Raila Amolo Odinga & Another v IEBC & 2 Others (2017)**. The record of appeal shows that on 30th May, 2023 the trial court granted an unopposed application to amend the Memorandum of Claim, directing that the claim be amended within 14 days. The Amended Memorandum of Claim dated 30th May 2023 was duly filed and adopted as the operative pleading. From that moment, the original Statement of Claim dated 26th August 2021 ceased to exist as a live document. The trial court’s judgment of 29th November, 2024 opened by framing and disposing of the claim by reference to the original Statement of Claim — the one filed on 26th August, 2021 seeking terminal dues of Kshs. 153,000.00. That document had long since been superseded. The court adjudicated a claim that was not before it and dismissed a pleading that had no legal existence. This is a fundamental misdirection of law and this ground succeeds. On the 2nd issue for determination, that is whether the Appellant’s employment was unfairly and unlawfully terminated, the central question is whether, on the balance of probabilities, the Appellant was terminated on 5th August, 2021 or whether he absconded duty. The Respondent carries the burden under section 43(1) of the Employment Act, 2007 of proving the reason for termination. This court has carefully evaluated the evidence. The Appellant’s evidence was consistent throughout. He was verbally dismissed on 5th August, 2021. He communicated the circumstances of his absence on the material day to his employer and they agreed. He denied he simply decided not to go to work. He received no warning letter before or at the time of the so-called separation. The NHIF Member Data Summary (Exhibit JSO1) tells its own story: uninterrupted monthly contributions at Kshs. 300/= from July 2017 through July 2021, first under employer code 89582 (Hamidun Enterprises Limited) and then under employer code 494395 (Giant Plumbing Limited). An employer who genuinely regards an employee as having abandoned the employment relationship does not continue remitting statutory contributions on that employee’s behalf month after month without interruption. The Respondent’s case, examined honestly, collapses under the weight of its own evidence. DW1 acknowledged he kept no leave records and no employment records beyond an ID copy. He confirmed the Appellant agreed he had paid his NSSF. When asked in re-examination to explain what had actually happened, the best DW1 could offer was: “I think he had gotten another job the following day, he didn’t come.” That is not evidence of absconding. It is speculation. An employer with a genuine absconding case writes to the employee, issues a show cause, commences a disciplinary process, and completes it. DW1 did none of that. No show cause letter, no disciplinary notice, no AWOL record, no termination letter was produced. This is consistent with what the Respondent said in its own pleadings: that the Appellant was guilty of “persistent absentism” — yet not a single piece of documentation was produced to support this allegation. The authority of **Banking Insurance and Finance Union (Kenya) v Barclays Bank of Kenya Limited [2014]** upon which the Respondent relies addresses a sustained, documented pattern of deliberate unexplained absence. The cross-examination admission here was a single day’s absence during the COVID-19 period, with a communicated reason and an agreed arrangement. That does not meet the threshold of absconding duty within the meaning of section 44(4) of the Act. The trial court’s reasoning is, with respect, circular. Having noted the Appellant’s cross-examination admission, the court concluded that he had absconded, and then proceeded to hold that “there is no way the Respondent was going to get him to conduct any form of disciplinary hearings.” The court thus used the absence of a disciplinary process — which section 41 of the Act obligates the employer to conduct — as further evidence against the Appellant. This inverts the statutory obligation. Section 41 places the duty on the employer to explain the proposed reason for termination and to hear the employee’s representations before taking any decision. The employer’s failure to comply with section 41 cannot be converted into proof of the employee’s guilt as is in **Walter Ogal Anuro v Teachers Service Commission [2013] KLR**. The termination of the Appellant’s employment was both substantively and procedurally unfair and unlawful within the meaning of sections 41, 43 and 45 of the Employment Act, 2007. This ground succeeds. On the 3rd issue for determination, that is whether the Appellant is entitled to the reliefs sought and in what measure, the Appellant’s salary is in dispute: he stated Kshs. 18,000/= per month; DW1 said Kshs. 16,000.00. Both agree on cash payment without any paper record. Section 74 of the Employment Act, 2007 obliges employers to maintain employment records. The Respondent kept nothing — no payslips, no contracts, no cash payment records. DW1 himself conceded: “We only take ID copy I don’t keep records.” That failure is the Respondent’s own making. The Appellant’s sworn evidence on salary stands uncontroverted by any document. This Court accepts his salary as Kshs. 18,000.00 per month. The Appellant served from July, 2017 to 5th August, 2021 a period of four years and one month. The terminal awards due to him are assessed as follows: One month’s salary in lieu of notice section 36, Employment Act, 2007….... Kshs. 18,000.00 Unutilized annual leave – 21 working days per year x 4 years……………….Kshs. 50,400.00 Compensation for unfair termination – 6 months’ gross salary (section 49(1)(c))……………………………………………………………………...Kshs. 108,000.00 Less: MPESA payment already received (Exhibit JSO2)…………………..Kshs. 10,000.00 **Total of award**……………………………………………………………..**Kshs. 166,400.00** On leave, section 28 of the Employment Act, 2007 entitles an employee to twenty-one (21) working days of annual leave with full pay for every twelve consecutive months of service. Four complete years of qualifying service are established. Computed at 21/30 of the monthly salary of Kshs. 18,000.00, the entitlement is Kshs. 12,600.00 per year, giving Kshs. 50,400.00in all. On service gratuity, the claim cannot be sustained. Section 35(6) of the Employment Act, 2007 excludes service pay where the employee was, during the period of employment, a member of the National Social Security Fund, and the evidence on record, including DW1’s own confirmation in re-examination that the Appellant’s NSSF contributions were paid, establishes such membership. The 15 days’ salary per year formula applied in **Noor v Lake Oil Limited (Cause 2 of 2019) [2024] KEELRC 2732 (KLR)** is accordingly unavailable to the Appellant, and the claim for service gratuity is declined. On compensation under section 49(1)(c), the ceiling is twelve months’ gross salary. The relevant factors under section 49(4) have been weighed: four years of service with a clean disciplinary record; a termination that was wholly without process, without notice, and without any stated reason; a modest monthly wage; and the Appellant’s evident willingness to work as demonstrated by his demand letter and continued pursuit of this claim. Six months’ compensation is fair and appropriate in the circumstances. The Kshs. 10,000.00 remitted by MPESA (Exhibit JSO2) is set off as a partial payment already received. The Appellant shall also be issued with a Certificate of Service as required by section 51 of the Employment Act, 2007. This is a statutory obligation on the employer that is not contingent on the circumstances of the separation. Having considered the Record of Appeal, the evidence adduced at trial, the written submissions of both parties, and the applicable law, I find merit in this appeal. The judgment and decree of the lower court cannot stand. The finding that the Appellant absconded duty is unsupported by the evidence and is set aside. A finding of unfair and unlawful termination is substituted in its place. I am therefore inclined to allow the appeal with the following orders; 1. The judgment and decree of the trial court delivered on 29th November, 2024 in Milimani CMELRC Cause No. E1725 of 2021 is set aside in its entirety. 2. A declaration be and is hereby issued that the termination of the Appellant’s employment by the Respodnent with effect from 5th August, 2021 was unfair and unlawful. 3. The Respondent shall pay the Appellant the sum of Kshs. 166,400.00 being terminal dues and compensation for unfair termination. 4. This award shall accrue interest at court rates from the date of this judgment until payment in full. 5. The Respondent shall issue the Appellant a Certificate of Service within thirty (30) days of this judgment. 6. The costs of this appeal and of the proceedings in the trial court shall be borne by the Respondent. Delivered, dated and signed this **29th** day of **July** 2026. **D. K. Njagi Marete** **JUDGE** Appearances: 1. Mr. Okulo instructed by ANO Advocates LLP for the Appellant. 2. Mr. Maina instructed by R. M. Njiraini & Co. Advocates for the Respondent.