https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2341

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **APPEALS DIVISION** **APPEAL NO. E081 OF 2025** BETWEEN **JUSTUS KIOKO KAMAU……………….. …………………. APPELLANT** AND **PAEM COMPANY LIMITED……………………………RESPONDENT** ***(Being an appeal against the judgment and decree of the Chief Magistrate’s Court at Thika (Hon. Y.M. Barasa (PM) delivered on*** ***7th February, 2025 in CMELRC No. E027of 2025)*** JUDGEMENT *(Before Hon. Justice Abuodha Jorum Nelson)* 1. By a memorandum of appeal dated 4th August, 2025 the appellant appeals against the judgment and decree of the Chief Magistrate’s Court at Thika (Hon. Y.M. Barasa (PM) delivered on 7th February, 2025 in CMELRC No. E027of 2023 on grounds inter alia- 1. The learned trial magistrate erred in law and in fact in failing to adhere to the rules of drafting a judgment under Order 21 Rules 4 and 5 of the Civil Procedure Rules. 2. The learned trial magistrate erred in law and in fact in failing to analyze the totality of applicable provisions of the Employment Act. 3. The learned trial magistrate erred in law and in fact by finding that the Claimant was not unfairly terminated against the weight of evidence on record. 4. The learned trial magistrate erred in fact and in law by not putting sufficient weight and consideration to the Appellant’s evidence and submissions tendered hence arriving at a fundamentally flawed determination. 5. The learned trial magistrate erred in law and in principle in filling the gaps in the Respondent’s case hence drawing his own inferences that were not supported by the evidence tendered during trial. 2. Consequently, the appellant sought for orders that: * 1. The Appeal be allowed. 2. That the Judgment of the learned trial magistrate together with all other consequential orders therefrom be set aside, varied and/or reviewed. 3. That the Appellant be awarded costs of the case in the trial court and the costs of this Appeal. 3. The appeal was disposed of by written submissions **APPELLANT’S SUBMISSIONS.** 1. The appellant’s counsel Mr. Ochieng opened his submissions by setting out the background of the dispute as presented before the trail court that the appellant worked for the respondent as a General Worker from 1st July 2022 until 17th February 2023 at a bi-weekly salary of Kshs.9,000 equivalent to Kshs.18,000 per month and that on or about the 17th February 2023 the respondent summarily terminated the appellant’s employment as a result of injuries suffered by him on or about 9th July 2022 while working for the respondent. 2. According to counsel the appellant suffered a fractured hand and broken teeth among other injuries. The dismissal was not preceded by any show cause letter, investigations, and a disciplinary hearing and that the appellant had never gotten any warnings before and he never got an opportunity to appeal the dismissal. The respondent denied him annual leave, overtime, sick leave, house allowance, and off days. During his employment with the respondent, he was never issued with a contract of employment and payslips. The respondent also failed to remit NSSF and NHIF in his favour. Also, his final dues were not paid and he was not given certificate of service. 3. It was further submitted that the respondent defended the claim vide a response to the claim dated 13th February 2024 at page 28 to 31 of the Record where the Respondent denied that it unfairly terminated the appellant or discriminated against him or visited him with unfair labour practices. 4. Counsel identified 6 issues for determination being the 5 grounds of appeal and 1 more being whether the Appellant was entitled to the prayers sought in the Appeal on the issue whether the learned trial magistrate erred in law and in fact in failing to adhere to the rules of drafting a judgment under Order 21 Rules 4 and 5 of the Civil Procedure Rules Counsel submitted that the Employment and Labour Relations Court (Procedure) Rules, 2024 had no provisions for rules of drafting a judgment. In the absence of such provisions, the legal position as restated in the case of *Kaiga v Co-operative Bank of Kenya Ltd (Cause E141 of 2023) [2024] KEELRC 2218 (KLR)* is that the court was free to apply the Civil Procedure Rulles, 2010 to fill the lacuna. 5. Counsel reproduced **Order 21 Rules 4 and 5 of the Civil Procedure Rules on contents of a judgement where it is provided** as follows: *“4. Contents of judgment [Order 21, rule 4]* *Judgments in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.* *5. Court to state its decision on each issue [Order 21, rule 5]* *In suits in which issues have been framed, the court shall state its finding or decision, with the reasons therefor, upon each separate issue.* 1. Therefore, a judgment in a defended suit must contain concise statement of the case, points for determination and a decision on those points with reasons. That is if issues are framed, then the court is to state its finding or decision on each separate issue with reasons for the finding on each issue. At page 94 of the Record, the appellant framed three issues for determination namely, whether the Respondent unfairly terminated the service of the claimant, whether the claimant was entitled to the reliefs sought and whether the Respondent harassed and or discriminated against the claimant. 2. Mr. Ochieng further submitted that at page 154 of the Record, the respondent also framed 3 issues for determination as follows- * 1. Whether the Claimant had proved unfair termination, discrimination and harassment and unfair labour practices 2. Whether the Claimant was entitled to the reliefs sought. 3. Who was to bear the cost of the suit. 3. According to counsel contrary to the requirements of drafting a judgment the trial magistrate only framed two issues for determination at page 229 of the Record as follows- 1. Whether the claimant was unfairly terminated from his employment 2. Whether the claimant is entitled to the prayers in the claim Counsel contended that looking at the issues presented for determination by parties at trial against those determined by the trial court it would be noticed that the trial magistrate failed to make a finding on whether the claimant was harassed and discriminated, and whether the claimant proved unfair labour practice. Mr Ochieng therefore submitted thatthe learned trial magistrate fell in error by failing to adhere to the rules of drafting a judgment. To this end, the appellant was hopeful that this court shall make a determination on the two issues and give reasons for the finding based on evidence and submissions tendered before the trial court. 1. Regarding whether the learned trial magistrate erred in law and in fact in failing to analyze the totality of applicable provisions of the Employment Act counsel submitted that the Appellant’s claim before court revolved around unfair termination, discrimination, harassment, unfair labour practice and certificate of service. The applicable provisions are the Constitution of Kenya under Article 41(1) and (2) on fair labour practices and the Employment Act under Section 5 on discrimination, Section 37 on conversion of casual employment to term contract, Section 40 on redundancy, Section 41 on notification and hearing before termination on grounds of misconduct, Section 43 on proof of reason for termination, Section 44 on summary dismissal, Section 45 on unfair termination and Section 51 on certificate of service among other provisions. However, at page 229 of the Record the only provision cited by the trial magistrate in determining whether or not the appellant was unfairly terminated was Section 45(2) of the Employment Act. Counsel further submitted that even after citing section 45(2) of the Employment Act, the trial magistrate’s analysis did not resonate with the provision quoted. This provision strictly demands proof from an employer that reasons for termination were valid, fair and termination done in accordance with fair procedure. The trial magistrate just took the reason given by the respondent’s witness for truth even though no proof was produced. At the last paragraph of the judgment on pages 229 to 230 of the Record, the trial court simply stated that the reason for termination was the respondent’s witness’ evidence that the department in which the appellant was, had low production hence production stopped and all workers were sent home thus the appellant was not unfairly terminated. The court never considered that there was no proof tendered by the respondent that the reason was valid, fair and done in accordance with fair procedure as required under **Section 45(2).** 2. Mr. Ochieng further submitted that faulted the appellant for not producing termination notice or state that he was terminated orally and that the appellant only stated that he was never served with a show cause letter and a disciplinary hearing was not conducted. This was notwithstanding the appellant’s testimony that he was summarily dismissed without notice due to his injuries which his Supervisor Immaculate, saw caused him to not sweep well hence poor performance. Further, if the trial court also read Section 37 of the Employment Act it could have found that the appellant’s employment had converted from casual to term employment by operation of law entitling him to terms and conditions of service as he would have been entitled to under the Act. Counsel also submitted that had the trial magistrate also read Section 40 of the Act, he could still have seen that the procedure for redundancy was never followed even if the court believed the respondent’s version of what led to appellant’s loss of employment. 3. By reading Section 43 of the Employment Act emphasizing proof of reason for termination, the honourable trial magistrate could have arrived at a different finding as there was no proof for the reasons for the layoff. Had he also read Sections 41 and 44(1) of the Employment Act on notification and hearing before termination and summary dismissal, he would not have faulted the appellant for not producing termination notice or lamenting that no show cause letter or hearing was given bearing in mind that the appellant’s testimony was that he was summarily dismissed. This was because Section 41 demanded for notification and hearing before termination on poor performance and Section 44(1) stated that summary dismissal happens where no notice or less notice is issued in which case there would be no termination notice to be produced by the appellant. 4. Concerning whether the learned trial magistrate erred in law and in fact by finding that the Claimant was not unfairly terminated against the weight of evidence on record, counsel submitted that the trial magistrate reasoned that since the respondent’s witness indicated that the appellant was a casual employee and the department in which the appellant was had stopped production due to low production hence all workers were sent home, hence there was no unfair termination. According to counsel, the reasoning failed to consider evidence on record and the law. No documentary evidence was tendered by the respondent to prove that there was low production in the Production Department and that employees in that department including the appellant were informed of such with indication that they would be recalled or that they were ever recalled. Even though the respondent’s witness denied that the respondent summarily dismissed the appellant, she admitted that the appellant was indeed stopped from work and the reason she gave was that at the time they had stopped production hence they sent workers home and that they informed the appellant. 5. In the absence of cogent proof that the respondent sent workers home due to low production in accordance with fair procedure by producing layoff notices or memos listing names of workers sent home or recall letters it could not be said that the respondent proved that it temporarily terminated employees including the appellant because of valid and fair reason or that a fair procedure was followed. The finding by the trial magistrate based on mere words of the respondent’s witness with no proof whatsoever was contrary to Section 45(2) of the Employment Act which the trial court cited and the procedural requirements under Section 40 of the Act in case an employee loses employment through no fault of their own. In this regard counsel relied on the case of Nation *Media Group Limited v Munene [2025] KECA 114 (KLR)* where *the* appellant had terminated the respondent’s employment citing reason that it had decided to reorganize operations in the editorial department hence affecting the respondent’s position. The Court of Appeal held that: - *“…The appellant did not dispute that this letter was handed over to the respondent on March 4, 2016, the very same day he was required to vacate his office. There was also no evidence provided by the appellant of the reorganization of the operations in the editorial department alluded to in the letter of redundancy, of the particular class of employees affected by the redundancy, and the basis of selection with regard to seniority, skill, ability and reliability as required by section 40 of the Employment Act. In the absence of this crucial evidence, which evidence ought to have come from the appellant under section 43 of the Act, we have no basis for faulting the learned Judge of the ELRC in finding that the appellant failed to show that there existed valid grounds to declare the respondent redundant****.”*** 1. Further in the case of ***Joseph R Matoka v Severin Sea Lodge 2016KEELRC1271(KLR)*** the court was faced with a near similar situation as the present case. The Claimant was a casual employee and the respondent laid him off among other employees due to low business low business due to insecurity caused by Terror threats. At paragraph 17 of the judgment the Honourable Justice Onesmus Makau found the reason to have been valid but faulted the procedure and also held that the casual employment had converted to regular employment as follows- *“ The termination of the claimants’ services was through lay off. The reason was valid because the court takes judicial notice that during the year 2014, Hotel business in the Country suffered serious losses due to insecurity caused by terror threats. It is therefore understandable that the managers of the respondent in their managerial prerogative had all the right to decide to lay off all or part of the staff. However such managerial prerogative was subject to the legal procedure and safeguards which shield employees from unfair termination. After considering the evidence before it, the court finds that the termination of the claimants’ services was procedurally unfair. Having found herein above that the contract of employment of the claimant had converted to regular employment, and that the termination was through lay off, the court further finds that the layoff was done in breach of the procedure laid down under section 40 of the Employment Act and clause 11 of the CBA.”* 1. Mr. Ochieng’ further submitted that the appellant testified that at the time he was dismissed he had been assigned work as a compound cleaner/sweeper. He denied that he worked in the production section which was where the respondent claimed it sent workers home due to low production. The appellant stated that his position as a sweeper was never rendered redundant. He pointed out that he was dismissed by one Immaculate, the Compound Supervisor, because he was not sweeping well due to his injuries. Counsel contended that even if the trial magistrate did not want to believe the appellant’s testimony, he ought to have considered that the respondent’s witness confirmed at examination in chief that indeed after the appellant got injured, he was moved to compound cleaning from nut washing at the production department. The witness admitted that they never reached compound cleaners which included the appellant since he was a compound cleaner. The appellant’s stoppage was a dismissal since his work as a sweeper was not affected. **RESPONDENT’S SUBMISSIONS** 1. Counsel for the respondent Ms. Chemutai submitted among others the trial court properly analysed the provisions of Section 45(2) of the Employment Act hence this ground of appeal was baseless. The same argument also applied to ground 3 of the memorandum of Appeal. Concerning grounds 4 and 5 of the appeal, counsel submitted that it was the Claimant’s burden to prove the allegations he raised on unfair termination, discrimination and harassment and unfair labour practices. The Respondent was able to prove during trial and in evidence that the allegations were not true, and hence satisfied the Court’s mind on those issues. 2. The Respondent’s witness testified extensively that the department in which the Claimant worked stopped operations and had not resumed up to date because of the nature of the Respondent’s business which was seasonal. Ms Nyaboke testified that the macadamia nuts business had seasons in which there were no nuts and therefore the casual laborers were not needed and would only be called when the nuts business was back on. She testified that all workers in the department were affected and all of them stopped working including the Claimant. In the support of the submission, counsel relied on the Supreme Court of Kenya case of **Gichuru v Package Insurance Brokers Ltd (Petition 36 of 2019) [2021] KESC 12 (KLR)** which adopted the following definition of discrimination: *“In equal measure, we adopt the definition of discrimination in* ***the High Court case of Peter K Waweru v Republic [2006] eKLR*** *as follows-* *“Discrimination means affording different treatment to different persons attributable wholly or mainly to their descriptions by race, tribe, place of origin or residence or other local conviction, political opinions, colour, creed, or sex, whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description. Discrimination also means unfair treatment or denial of normal privileges to persons because of their race, age, sex* *a* *failure to treat all persons equally where no reasonable distinction can be found between* *those favoured and those not favoured.”* 1. The Respondent during the hearing also established that the Company complied with the Employment Act by granting the Appellant sick leave and off days whenever he needed. The Respondent also issued pay slips and remitted NSSF and NHIF for the Appellant throughout their engagement. Because of these reasons, the Appellant failed to prove harassment and discrimination by the Respondent. 2. Concerning whether the Appellant discharged the burden of proof at the Trial Court, Ms Chemitei submitted that the facts showed that while the Appellant alleged unfair termination and discrimination, he admitted during cross-examination that he was paid all dues, that he was aware of the casual nature of his employment, and that the Respondent facilitated his medical treatment. According to counsel section 47(5) of the Employment Act places the burden on the employee to prove the fact of unfair termination, after which the employer must justify the reasons. The Court of Appeal in affirmed this in **Ol Pejeta Ranching Limited -vs David Wanjau Muhoro (2017) Eklr** where the court held: - *“Further, fairness requires that people doing similar work should receive equal pay”. Similar work is not the same as work of equal value as a claimant in a case of equal work the claimant has to prove the equal value.”* 1. Applying the law, the Appellant failed to establish the foundational elements of his claim and the Respondent provided credible and consistent evidence explaining the cessation of work. The trial court properly evaluated this evidence in coming up with its conclusion. It therefore followed that the Appellant failed to discharge the burden of proof on a balance of probabilities and the Trial Court rightly arrived at its conclusion in dismissing the Claim. The facts demonstrated that the trial court considered the evidence presented by both parties and made findings based on that evidence. There was no indication that the court ignored relevant evidence or misapplied the law. 2. Concerning the role of this court as an appellate court, counsel submitted that the guiding principle was set out in ***Selle & Another Vs Associated Motor Boat Co. Ltd. & Others [1968] EA 123 at 126*** which stated that; *“An appeal to this court from a trial by the High Court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound to follow the trial judge’s findings of fact if it appears that either he clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence on the case generally. (Abdul Hameed Saif –Vs- Ali Mohamed Sholani (1955) 22 EACA 270)”* Applying this principle, the findings of the trial court were supported by evidence, including admissions by the Appellant and testimony from the Respondent’s witness. There is no demonstrated error or misdirection. It therefore followed that there was no basis for this Honourable Court to interfere with the trial court’s decision. **DETERMINATION** 1. The court has considered the grounds of appeal, the record of appeal and submissions filed by the both parties herein and notes that the Judgment of the trial court was that the appellant did not produce sufficient proof to show he was unfairly terminated. The trial court therefore held that he was not entitled to the prayers sought. 2. From the proceedings, the brief evidence by the appellant was that he was employed by the respondent as a casual worker on 1st July, 2022 and worked until 17th February, 2023. His monthly salary was Kshs. 18,000/- and further that his regular duties were washing nuts and loading them into driers. He got injured at some point and according to him he was dismissed as a result of his injuries and that he was never taken through any disciplinary process and not assisted in the treatment for his injuries and further that he was never compensated. He however stated during cross-examination that the respondent paid him during the period he was away injured and that he was paid some Kshs. 4,050 and that it was money given for the week and further that he was assigned light duties after one week. 3. The respondent’s witness on the other hand stated that the claimant was not summarily dismissed and that the respondent stopped operations as the crop the respondent was dealing with was seasonal which is why they hired seasonal workers. 4. Section 37 of the Employment Act which deals with conversion of casual employment to term contract provides that: “…Notwithstanding any provisions of this Act, where a casual employee— (a) works for a period or a number of continuous working days which amount in the aggregate to the equivalent of not less than one month; or (b) performs work which cannot reasonably be expected to be completed within a period, or a number of working days amounting in the aggregate to the equivalent of three months or more, the contract of service of the casual employee shall be deemed to be one where wages are paid monthly and section 35(1)(c) shall apply to that contract of service. (2) In calculating wages and the continuous working days under subsection (1), a casual employee shall be deemed to be entitled to one paid rest day after a continuous six days working period and such rest day or any public holiday which falls during the period under consideration shall be counted as part of continuous working days. (3) An employee whose contract of service has been converted in accordance with subsection (1), and who works continuously for two months or more from the date of employment as a casual employee shall be entitled to such terms and conditions of service as he would have been entitled to under this Act had he not initially been employed as a casual employee. (4) Notwithstanding any provisions of this Act, in any dispute before the Employment and Labour Relations Court on the terms and conditions of service of a casual employee, the Employment and Labour Relations Court shall have the power to vary the terms of service of the casual employee and may in so doing declare the employee to be employed on terms and conditions of service consistent with this Act. 1. Whereas under section 2 of the Act a casual employees is defined as: "casual employee" means a person the terms of whose engagement provide for his payment at the end of each day and who is not engaged for a longer period than twenty-four hours at a time…” The industry practice is that workers in this category more often than not work more than the prescribed aggregate period and usually prefer to be paid either weekly or fortnightly. This practice as juxtaposed with the provisions of section 37 of the Employment Act continues to prove problematic to the Employment and Labour Relations Court especially when it comes to dealing with seasonal workers. 1. ILO convention on Employment Promotion and Protection against Unemployment Convention, 1988 (C. 168) provides under Article 2 that: - “…Each Member shall take appropriate steps to co-ordinate its system of protection against unemployment and its employment policy. To this end, it shall seek to ensure that its system of protection against unemployment, and in particular the methods of providing unemployment benefit, contribute to the promotion of full, productive and freely chosen employment, and are not such as to discourage employers from offering and workers from seeking productive employment…” 1. Due to the special characteristics and conditions of seasonal work in certain activities, this law regulates a simplified way of hiring persons and paying taxes and contributions for work on jobs of a seasonal nature in certain activities determined in accordance with this law in the sector of agriculture, forestry and fishing. (hereinafter: seasonal jobs), in accordance with the regulation prescribing the classification of activities. 2. There is therefore urgent need by the social partners in the world of work to iron out the dilemma and risk that potential employers face in engaging casual workers on terms which have gained ground as industry practice with the concurrence of those workers themselves on one hand and the risk of facing law suits claiming that casual work or seasonal work is after all just like any other employment. The spirit as captured in the ILO convention on Employment Promotion and Protection against Unemployment Convention, 1988 is that each Member state should take appropriate steps to co-ordinate its system of protection against unemployment and its employment policy. To this end to ensure that its system of protection against unemployment, and in particular the methods of providing unemployment benefit, contribute to the promotion of full, productive and freely chosen employment. 3. In the case before me, it is clear that the appellant was hired as a seasonal worker and that he was not summarily dismissed as he purports to claim. How can an employee summarily dismissed be paid allowance during the period he claimed to be off work recuperating and suddenly return and be assigned light duties? The Court tends to believe the respondent that the appellant like his colleagues were seasonal workers hired to clean nuts when in season and it would have been unreasonable to burden the respondent with an avoidable and unproductive wage bill. 4. **From the analysis of the evidence before the trial court and the observation made herein, I am inclined to state that doing justice is not always about entering judgement for or against a party before the court but balancing the scales of justice for the protection of social good. Therefore, in order to align with the principle underpinning the ILO convention on Employment Promotion and Protection against Unemployment Convention, 1988 (C. 168). That is to say, to encourage Member states to take appropriate steps to co-ordinate its system of protection against unemployment by ensuring protection and promotion of full, productive and freely chosen employment, it would not be wise for me to disturb the finding of the trial and will therefore dismiss this appeal but with no order as to costs.** 5. **It is so ordered**. **Dated at Nairobi this 28th day of July, 2026** **Delivered virtually this 28th day of July, 2026** **Abuodha Nelson Jorum** **Presiding Judge-Appeals Division**