Kawimbi v Modern Coast Builders and Contractors Ltd (Cause E059 of 2018) [2026] KEELRC 2080 (KLR) (16 July 2026) (Judgment)

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MOMBASA ELRC CAUSE NO. E59 OF 2018 JARA EDWIN KAWIMBI ...................................................CLAIMANT **VERSUS** MODERN COAST BUILDERS AND CONTRACTORS LTD ........................................ RESPONDENT **JUDGMENT** **Background** 1. By an amended memorandum of claim dated 18th September 2020, the Claimant, Jara Edwin Kawimbi, sued the Respondent, Modern Coast Builders and Contractors Ltd, contending that his employment had been summarily and unfairly terminated on 13th January 2017. He sought a declaration that the termination was unfair; terminal dues comprising one month's salary in lieu of notice, in the amount of Kshs. 17,000 salary for 13 days worked in January 2017, in Kshs. 7,366.70, leave pay for five years of service computed at Kshs. 59,500, and compensation of twelve months' salary amounting to Kshs. 204,000 for unlawful termination; a certificate of service; costs and interest; and such other relief as the court might consider fit. 2. The Respondent resisted the claim through an amended memorandum of response and counterclaim dated 23rd June 2025. While admitting that the Claimant was its employee, it denied terminating his services and averred instead that he deserted his duties without permission or explanation. On that basis, it counterclaimed for a declaration that the Claimant's own conduct amounted to an unlawful and unfair termination of the contract of service, together with damages, notice pay, interest and costs. 3. The Respondent had earlier objected that the amended claim was time-barred. That objection was considered and determined in two rulings delivered in this cause, by Ndolo J. on 11th February 2021 and by Nzei J. on 4th July 2024, and no appeal was taken against either ruling. The significance of that procedural history is addressed under the first issue for determination below. 4. At the hearing, the parties adopted their respective witness statements as their evidence in chief and produced, as their documentary evidence, the documents contained in their respective lists of documents. **The Claimant's Case** 1. In his witness statement, the Claimant testified that he was employed by the Respondent as a glass fitter on 23rd August 2011, earning a monthly salary of Kshs. 17,000. He was not issued a written contract but received a staff card and monthly payslips. He stated that he routinely worked beyond his ordinary hours, at times until 10.00 p.m., and that he was never granted his statutorily required annual leave. 2. He testified that on 12th January 2017, after leaving his work station, his supervisor, Mr. Omondi, telephoned him and asked him to return for night duty. Having no transport fare, he asked Mr. Omondi to send him money; when none was sent, he arranged for a colleague, Abdalla, to stand in for him at the workshop, an arrangement he says Mr. Omondi accepted. 3. When he reported for work the following day, 13th January 2017, he was summoned to the Human Resources office, questioned about the arrangement he had made with Abdalla, and instructed to surrender his uniform because his employment had been terminated. He returned the uniform and asked for his terminal dues but was told he would be contacted later. According to him, no such contact was ever made, and he was paid neither his terminal dues nor his outstanding salary for January 2017. 4. Under cross-examination, the Claimant maintained that the Respondent, and not Shabir Brothers (for whom he had initially worked). He denied ever having taken his full annual leave entitlement, save for fourteen days he was permitted off duty following a bereavement, which he characterised as compassionate leave distinct from annual leave. He conceded that although his ordinary hours were 8.00 a.m. to 5.30 p.m., he sometimes worked beyond that schedule, and confirmed that the Respondent operated no clocking-in or clocking-out system. **The Respondent's Case** 1. The Respondent's sole witness, Gloriah Destiny Mlanya, its Human Resource Officer, testified that the Claimant was employed on 22nd August 2011 under a written offer of employment requiring him to comply with the Respondent's terms and conditions of service. She testified that the Claimant deserted his duty station and stopped reporting for work without permission or explanation, disrupting operations at the Respondent's workshop, and that the Respondent learnt that he considered his employment terminated only when it was served with the amended statement of claim. She denied that the Respondent had dismissed him and maintained that, had it intended to do so, it would have subjected him to a disciplinary process. She further denied that the Claimant had been called back to duty by Mr Omondi or anyone else, stating that this was not the Respondent's practice, and asserted that his conduct amounted to an unlawful abandonment of employment entitling the Respondent to judgment on its counterclaim for a declaration that the termination was illegal and unfair, damages of Kshs. 120,000, notice pay of Kshs. 10,000, interest and costs. 2. Under cross-examination by Counsel for the Claimant, however, the Respondent's witness made a series of concessions. She acceded that an employer-employee relationship existed between the parties. She could not state the specific date on which the Claimant allegedly deserted duty, and admitted that the Respondent had not placed before the court any document from which desertion could be discerned. She further admitted that no evidence had been adduced to show that the Respondent made any attempt to reach, trace, or recall the Claimant to duty after he allegedly stopped reporting for work, and confirmed that no letter of termination on the ground of desertion was ever issued to him. On the leave claim, she conceded that the only documentary evidence the Respondent could produce of leave taken by the Claimant during his entire tenure was five days in November 2016, five days in July 2016, and four days in August 2014 taken on account of a bereavement — a total of fourteen days over more than five years of continuous service. **The Claimant's Submissions** 1. Counsel for the Claimant submitted, first, that the Respondent's objection that the amended claim was time-barred had already been conclusively determined in the rulings of Ndolo J. and Nzei J., that no appeal had been taken against either ruling, and that the court could not sit on appeal over its own earlier decisions made in the same cause. 2. On the allegation of desertion, Counsel relied on sections 43(1) and 47(5) of the Employment Act for the submission that the burden lay on the Respondent to prove the alleged desertion and to justify any termination founded on it. Counsel submitted that the Respondent had produced no attendance registers, muster rolls, duty rosters or clock-in records to establish the Claimant's absence, and invoked section 74(1)(f) of the Act for the proposition that an employer's failure to produce such records ought to be construed against it. Counsel further submitted that no evidence had been led of any effort to trace or contact the Claimant — whether by telephone, letter, text message, email or a notice to show cause — and relied on Felistas Acheha Ikatwa v Charles Peter Otieno [2018] eKLR for the principle that an employer alleging abscondment must demonstrate the efforts it made to trace the employee and subject him to a disciplinary process before a bare allegation of desertion can succeed. Counsel added that the Respondent neither issued a termination letter citing desertion nor notified the Labour Office, omissions inconsistent with a genuine case of abandonment, and that the very leave records the Respondent produced — showing only fourteen days of leave over the entire employment period — corroborated rather than undermined the Claimant's account that he followed the established procedure whenever he required time off. Counsel accordingly submitted that the allegation of desertion was an afterthought, unproven on a balance of probabilities. 3. On unfair termination, Counsel relied on sections 43 and 45(2) of the Employment Act for the submission that the Respondent had proved neither a valid reason for termination nor a fair procedure, and on section 41 for the submission that the Claimant was never issued a notice to show cause, never invited to a disciplinary hearing, and never afforded the right to be accompanied by a fellow employee or a trade union representative. Counsel cited Mary Chemweno Kiptui v Kenya Pipeline Company Limited [2014] eKLR for the proposition that even where desertion is alleged, an employer must still show that it attempted to subject the employee to a disciplinary process, and Walter Ogal Anuro v Teachers Service Commission [2013] eKLR for the principle that a fair termination requires both substantive justification and procedural fairness, the absence of either being sufficient to render a termination unfair. Counsel submitted that instructing the Claimant to surrender his uniform and informing him that his services had been terminated, without more, amounted to summary dismissal without due process. 4. On the reliefs sought, Counsel submitted that the Claimant was entitled, under sections 35 and 36 of the Employment Act, to one month's salary in lieu of notice of Kshs. 17,000, based on payslips the Respondent did not dispute; to Kshs. 7,366.70 for thirteen days worked in January 2017, evidence of which was uncontroverted; to Kshs. 59,500 for leave accrued but unutilised over five years of service, calculated at twenty-one days per year; and to twelve months' compensation of Kshs. 204,000 for unfair termination, together with costs and interest. In all, the Claimant asked the court to award him a total of Kshs. 287,866.70. **The Respondent's Submissions** 1. Counsel for the Respondent submitted that the Claimant's testimony was inconsistent, pointing to discrepancies concerning his name, his denial of a signature appearing on the employment contract, and his admission in cross-examination that he had previously been granted leave despite having pleaded that he was never permitted to take any. Counsel further submitted that the Claimant's account of sending Abdalla to work in his place was implausible, that an employee could not lawfully delegate his contractual duties without his employer's authority, and that the Claimant's failure to call either Mr. Omondi or Abdalla to corroborate his account left his allegation of dismissal unsupported. 2. Relying on section 47(5) of the Employment Act, Counsel submitted that the Claimant bore the initial burden of proving that the Respondent terminated his employment, and that he had produced no termination letter, no documentary or oral evidence of dismissal, no grievance or demand letter, and no contemporaneous complaint. Counsel submitted that the Respondent's evidence was, by contrast, consistent and supported by documentary records including the employment contract, the Claimant's identification documents, signed leave forms and a doctor's letter, and that the Respondent's code of conduct required an employee unable to report for duty to notify his employer, a procedure the Claimant did not follow. Counsel maintained that after the Claimant stopped reporting for work, the Respondent made several attempts to reach him through the contact details in its employment records, but that he remained unreachable. 3. On limitation, Counsel relied on section 90 of the Employment Act to submit that the amended claim was filed outside the applicable three-year period, the alleged termination or abandonment having occurred on 13th January 2017 and the amended memorandum of claim having been filed on 18th September 2020. Counsel cited Mbithi v Pride Inn Hotels & Investment Limited & Another, Cause E028 of 2025, [2025] KEELRC 2675 (KLR); Onziga v Mara Leisure Camp, Cause E028 of 2024, [2025] KEELRC 319 (KLR); Kazungu v Kenya Ports Authority, Miscellaneous Application E002 of 2025, [2025] KEELRC 982 (KLR); Maria Machocho v Total Kenya Limited [2013] eKLR; and Divecon Ltd v Samani [1995-1998] 1 EA 48, for the proposition that the limitation period governing claims founded on a contract of service is mandatory, and that the court has neither jurisdiction nor discretion to extend it once it has expired. 4. On desertion, Counsel relied on section 44(4)(a) of the Employment Act for the submission that unexplained absence from work without leave or lawful cause constitutes gross misconduct, and on Guardian Coach Limited v Kebasi, Appeal E078 of 2024, [2025] KEELRC 1308 (KLR) and Anyona v Transline Classic Limited, Cause 459 of 2017, for the proposition that an employer need only take reasonable, not exhaustive, steps to trace an employee who has deliberately made himself unreachable, and that the Claimant's own disappearance made completion of a disciplinary hearing impracticable. Counsel further relied on Stanley Omwoyo Onchweri v Board of Management, Nakuru YMCA Secondary School [2015] eKLR for the proposition that desertion requires both absence and an intention not to return, an intention that may be inferred from the length of absence, the absence of communication, the effect on the employer's operations and the nature of the employee's duties. 5. Counsel submitted, in conclusion, that the amended claim was time-barred, that the Claimant abandoned his employment without notice or lawful cause, and that he was consequently not entitled to a declaration of unfair termination, notice pay, compensation or any terminal benefit contingent on proof of an employer-initiated termination; and that the Respondent was instead entitled to judgment on its counterclaim for the losses said to have been occasioned by the Claimant's unexplained abandonment of duty. **Issues for Determination** Having considered the pleadings, the oral and documentary evidence, and the parties' respective submissions, four issues arise for determination: (a) whether the Claimant’s claim is time-barred; (b) whether the Claimant deserted duty or was terminated by the Respondent; (c) whether the termination, if established, was unfair; and (d) whether, and to what extent, the parties are entitled to the reliefs sought in the claim and in the counterclaim. **Analysis and Determination** **(a) Whether the claim is time-barred** 1. The Respondent's objection that the amended claim offends the three-year limitation period prescribed by section 90 [now section 89] of the Employment Act was raised, argued and determined in two separate rulings delivered in this very cause — by Ndolo J. on 11th February 2021 and by Nzei J. on 4th July 2024 — and neither ruling was appealed. It is a well-established principle that a court cannot, at a later stage of the same proceedings, revisit and overturn a point already settled between the same parties by an earlier ruling in that cause; to do so would offend the doctrines of *res judicata* and **functus officio** and would amount to this court sitting on appeal over its own earlier decisions. The limitation objection is accordingly not open for reconsideration at the judgment stage. 2. In any event, and for completeness, the objection would not have succeeded on its merits. The employment relationship ended, on either party's case, on 13th January 2017. The original memorandum of claim was filed on 6th February 2018, comfortably within the three-year period prescribed by section 89 of the Employment Act for suits founded on a contract of service. Its subsequent amendment on 18th September 2020 introduced no new cause of action; it merely particularised and quantified the same claim for unfair termination and terminal benefits already pleaded, and therefore relates back to the date of the original filing. The authorities relied upon by the Respondent correctly state that the limitation period is mandatory and cannot be extended once it has expired, but they do not assist the Respondent here, since on the facts of this cause the period had simply not expired when suit was first instituted. **(b) Whether the Claimant deserted duty or was terminated** 1. It is common ground that the parties stood in an employer-employee relationship. What is contested is the manner in which that relationship came to an end. The Claimant's account is that he reported for duty on 13th January 2017, was summoned to the Human Resources office, questioned over the arrangement he had made with Abdalla, and directed to surrender his uniform because his services had been terminated. The Respondent's account is that the Claimant simply stopped reporting for duty and deserted his post without explanation. 2. Section 47(5) of the Employment Act places the initial burden on an employee to prove the fact of termination, whereupon the burden shifts to the employer to justify the reason for, and the procedure adopted in, the termination. The Claimant discharged that initial burden through direct and consistent testimony that he was instructed, in explicit terms, to surrender his uniform and that his services had been brought to an end. The burden accordingly shifted to the Respondent to establish, on a balance of probabilities, that the true cause of the parting of ways was desertion and not termination. 3. The Respondent did not discharge that burden. This is not merely a case of the Claimant's word against the Respondent's; it is a case in which the Respondent's own witness, under cross-examination, conceded the very facts that defeat the defence of desertion. She could not state the date on which the alleged desertion occurred. She admitted that no document existed from which desertion could be discerned. She admitted that no evidence had been placed before the court of any attempt by the Respondent to reach, trace or recall the Claimant to duty. And she confirmed that no letter of termination on the ground of desertion was ever issued to him. Each of these was an admission made by the party bearing the burden of proof, against its own case, and each is fatal to the defence of desertion. 4. These admissions align with the settled position on what an employer alleging desertion must establish. In **Felistas Acheha Ikatwa v Charles Peter Otieno [2018] eKLR**, the court held that “the law is ... *well settled that an employer claiming that an employee has deserted duty must demonstrate efforts made towards getting the employee to resume duty. At the very least, the employer is expected to issue a notice to the deserting employee that termination of employment on the ground of desertion is being considered.*” Similarly, in **Stanley Omwoyo Onchweri v Board of Management, Nakuru YMCA Secondary School [2015] eKLR**, the court explained that desertion requires proof both of absence and of an intention not to return, and that the employer must additionally show that it made reasonable inquiries as to the employee's whereabouts and issued an ultimatum requiring him to resume duty. **Guardian Coach Limited v Kebasi [2025] KEELRC 1308 (KLR)** and **Anyona v Transline Classic Limited, Cause 459 of 2017**, on which the Respondent relied, do not lower this threshold; they confirm only that the steps expected of an employer need be reasonable, not exhaustive. Here, the Respondent's own witness conceded that it took no steps at all. 5. The Respondent's further assertion that it learnt of the termination only when it was served with the amended claim sits uneasily with its statutory obligation, under section 74 of the Employment Act, to maintain employment records and to account for an employee's continued absence. An employer that genuinely believed a long-serving employee had vanished without trace, yet kept no record of the fact, took no step to investigate it, and issued no communication about it for years thereafter, cannot be said to have discharged the burden the law places upon it. 6. On a balance of probabilities, the Respondent has failed to prove that the Claimant deserted his employment. The court finds, on the totality of the evidence, that the Claimant's employment was terminated by the Respondent on 13th January 2017. **(c) Whether the termination was unfair** 1. Sections 41, 43 and 45 of the Employment Act require an employer to establish both a valid and fair reason for termination and a fair procedure leading to it. In **Walter Ogal Anuro v Teachers Service Commission [2013] eKLR**, the court held that a fair termination must satisfy both substantive justification and procedural fairness, and that the absence of either is sufficient to render a termination unfair. **Mary Chemweno Kiptui v Kenya Pipeline Company Limited [2014] eKLR** likewise confirms that even where desertion or misconduct is alleged, the employer must still show that it attempted to subject the employee to a disciplinary process before terminating his services. 2. Having throughout maintained that it never terminated the Claimant's employment at all, the Respondent advanced no alternative case that, if the termination were found to have occurred, it was justified as one for misconduct or otherwise procedurally sound. Yet the evidence establishes that a termination did occur. On the Claimant's uncontroverted account, he was questioned informally about the arrangement he had made with Abdalla and, without further inquiry, was directed to surrender his uniform. He was not issued a notice to show cause, was not invited to a disciplinary hearing, and was not afforded an opportunity to be heard or to be accompanied by a fellow employee or a trade union representative, as required by section 41 of the Employment Act. No valid reason for the termination was articulated to him at the time, still less established before this court. The termination therefore fails both limbs of the test in Walter Ogal Anuro and was unfair within the meaning of sections 43 and 45 of the Employment Act. **(d) Reliefs** 1. **Notice pay**: Having found that the Claimant was terminated without notice, he is entitled under sections 35 and 36 of the Employment Act to one month's salary in lieu of notice. His payslips, which the Respondent did not dispute, place his salary at termination at Kshs. 17,000, and he is awarded that sum. 2. **Compensation for unutilised leave**: The Respondent's own witness conceded, under cross-examination, that the only documentary evidence of leave taken by the Claimant throughout more than five years of service was five days in November 2016, five days in July 2016, and four days in August 2014 taken on account of a bereavement — a total of fourteen days. Even treating all fourteen days as annual leave, and measured against a statutory entitlement of twenty-one days for each of the five years worked, being one hundred and five days in total, the Respondent's own evidence falls far short of accounting for, still less discounting, the balance of leave the Claimant is shown to have earned and left unutilised. The burden of proving that leave has been granted and taken rests on the employer, who is obliged by section 74 of the Employment Act to maintain leave records; where, as here, the employer's own records confirm rather than rebut the employee's claim, the claim cannot be discounted. Nor is the claim barred by limitation: it forms part of the terminal benefits arising from a termination that occurred on 13th January 2017 and was pleaded in the original memorandum of claim filed on 6th February 2018, well within the three-year period prescribed by section 90 of the Employment Act. The Claimant is accordingly awarded Kshs. 59,500, as pleaded and sought, being compensation for earned but unutilised leave. 3. **Compensation for unfair termination**: Section 49(1)(c) of the Employment Act empowers the court to award compensation not exceeding the equivalent of twelve months' wages or salary, that ceiling representing the maximum, and not the ordinary, measure of compensation. Section 49(4) directs the court, in fixing the amount, to have regard to factors that include the length of the employee's service and the opportunities available to him for alternative employment. The Claimant served the Respondent for approximately five and a half years, a period of moderate rather than extended tenure, and did not adduce evidence that he sought, or was unable to secure, alternative employment following the termination of his services — a factor that weighs against an award at the statutory maximum. Weighing these considerations against the unfairness of the termination and the absence of any valid reason or fair procedure, the court finds that compensation equivalent to seven months' gross salary, being Kshs. 119,000 (7 x Kshs. 17,000), represents a fair and proportionate award under section 49 of the Employment Act. 4. **Interest and costs**: The sums awarded above shall attract interest at court rates from the date of this judgment until payment in full. As the Claimant has substantially succeeded in his claim, the costs of the suit shall follow the event and are awarded to him. 5. **Salary for 13 days worked in the month of January,2017**: The Claimant asserted, and the assertion was not discounted at all, that he was not paid for the 13 days he worked in January 2017. I find no difficulty in awarding him the sought KShs. 7,366.70. 6. **Certificate of service**: A certificate of service is a statutory right for any employee who has left their employer's employment, regardless of how. There is no evidence that the Claimant was issued with one. I direct that he be issued with one within 30 days of this Judgment. **The Counterclaim** 1. The Respondent's counterclaim rests entirely on its allegation that the Claimant deserted his duty and thereby unlawfully terminated the employment contract. Having failed to establish desertion, as I have found above, the Respondent's counterclaim fails. **Disposition** 1. For the foregoing reasons, judgment is entered for the Claimant against the Respondent in the following terms: (a) A declaration that the termination of the Claimant's employment by the Respondent was unfair. (b) The Respondent shall pay the Claimant one month's salary in lieu of notice, being Kshs. 17,000. (c) The Respondent shall pay the Claimant compensation equivalent to seven months' gross salary for unfair termination, being Kshs. 119,000. (d) The Respondent shall pay the Claimant Kshs. 59,500 as compensation for earned but unutilised leave days. (e) Salary for 13 days worked in January 2017: KShs. 7,366.70 (f) The sums in (b), (c), (d) and (e) above shall attract interest at court rates from the date of this judgment until payment in full. (g) The Respondent's counterclaim is dismissed. (h) The Respondent shall bear the costs of the claim and of the counterclaim. Dated, signed and delivered at Mombasa this 16th day of July, 2026. **OCHARO KEBIRA** **JUDGE**