https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1770

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** *(Before Hon. Lady Justice Monica Mbarũ)* **APPEAL NO. E222 OF 2025** **MARIETA MUMBE NYAMAI APPELLANT** *VERSUS* **DOROTHY NJERU RESPONDENT** **[Being an appeal from the judgment of Hon. Ruguru delivered on 20 December 2024 in Nairobi CMERLC No. E913 of 2022]** **JUDGMENT** The appeal arises from the judgment delivered on 20 December 2024 in Nairobi MCELRC No. E913 of 2022. The appeal is on two (2) grounds that the learned trial magistrate erred in law and fact in dismissing the appellant’s case and finding that there was no termination of employment but abandonment of work. The trial court erred in failing to apply the principles governing cases of desertion and abandonment and, hence, arrived at a wrong decision by ignoring sections 41, 43, 45, and 47 of the Employment Act. The remedies sought should be reassessed, and costs should be awarded. The appellant seeks to have the judgment of the trial court set aside. The background to the appeal is a claim filed by the appellant before the trial court. The case was that in November 2019, the respondent employed the appellant as a domestic worker on an oral contract at her residence in Lavington. The monthly wage was Ksh. 20,000 with accommodation. Work hours were 4am to 11pm, with a day off on Sunday, but no annual leave. In October 2021, the respondent asked the appellant to find someone to train in housework to allow her to retire. The appellant declined because the respondent had complained that other domestic workers would steal from her. On 6 October 2021, the respondent told the appellant that her car keys were lost and that the appellant had taken them, which was not true. The respondent directed the appellant to find the car keys or leave the house. At 4pm, the respondent asked if the keys had been found, but they were still missing. The respondent directed the appellant to leave the house, effectively terminating her employment without good cause. There was no hearing or justification. Terminal dues were not paid. The appellant claimed the following: 1. One month's notice pay Ksh. 20,000. 2. Annual leave of 21 days, Ksh. 16,153.84 3. 22 public holidays Ksh. 33,846.12 4. Overtime of 6336 hours Ksh. 1,152,835.20 5. Service for 30 days Ksh. 23,076.90 6. 12 months' compensation Ksh. 240,000. In reply, the respondent’s case was that the appellant was an employee, but the claims made are not correct. Employment began on 20 November 2019 as a domestic worker under an oral contract. The appellant had basic skills and was trained by the respondent, hence a general labourer whose pay was Ksh. 13,572 per the Wage Orders. However, the respondent agreed to pay Ksh. 14,000 plus accommodation in compliance with section 31 of the Employment Act. The wage was increased to Ksh. 20,000 as a consolidated package. This was to cover any overtime and the benefit of accommodation, food and water. Duties allowed included taking care of school-going children, hence long breaks within the day. Working hours were from 7 am to 6 pm, with a long break, and Sunday off. Chores outside the house, including gardening, were attended to by a different person and not the appellant. Each December, the family would travel out of the country and allow the appellant leave. In April 2020, the family moved from South B Estate to Lavington and bought new furniture. The appellant begged to be given various items, which she carried to her family resident in Mukuru. At the new workstation, work has decreased since the children went to boarding school. The family had a full-time driver responsible for car keys, not the appellant, as alleged. Her role was only to pick up the shopping from the car. In July 2020, the appellant requested one month's leave from 1 August to 30 August 2020. She requested an advance pay of Ksh. 20,000. She wanted to build a house in her rural area. The respondent donated floor tiles, timber and electrical installations. During public holidays, the applicant remained at home. All her wages were paid in cash, as she claimed she had Fuliza and that her pay would be consumed through the M-Pesa application. The respondent stated that in August 2021 she noticed a decline in the appellant’s work performance. The appellant was no longer able to complete her duties and had become irritable. She said she was tired and wanted to leave. She had become skeletal and visited various health facilities. She had chronic pelvic and back pain, as well as memory loss. Following discussions on 15 August 2021, there was mutual agreement to separate on the grounds of age. The appellant requested that her daughter be allowed to take over her duties from October 2021, but the respondent declined. It was thus agreed that she would retire at the end of October 2021. However, from 6 October 2021, the appellant absconded from duty without communication. The respondent paid September's salary because no notice was issued. She was treated fairly and paid above the minimum wage, and the claims should be dismissed. The learned magistrate heard the parties, analysed the claims, and held that there was an abscondment of duty and that the claim was without merit, except for service pay of Ksh. 10,000. On the appeal, the parties agreed to file written submissions. On appeal, the appellant submitted that the respondent directed her to retrieve the lost car key and, if she could not find it, to leave her premises. In **Moyo v Texas Alarms (K) Ltd [2025] KEELRC 1780 KLR,** the court held that where the employer asserts that the employee deserted duty, there must be evidence of the efforts made to trace the employee and address such misconduct. It is not sufficient to cite desertion of duty. Continued absence from work is gross misconduct, but the employee must be issued notice, and the employer must formalise the termination of employment. The respondent failed to formalise the alleged desertion of duty by the appellant. This was because the respondent sent the appellant away because of the lost car key. On the reliefs, the appellant submitted that the issue of notice is well settled in the Act under sections 35(1)(c) and 36, which deal with payment in lieu of notice. There was no valid reason for termination, as no due disciplinary process was followed under section 41 of the Act. The appellant should have been awarded maximum compensation under section 49(1) of the Act. There are no submissions on record for the respondent. **Determination** This being a first appeal, the court is required to review the record, reason the findings and make a conclusion. However, consider that the trial court had the chance to hear the witnesses and hence make this provision. The gist of the appeal is the trial court's finding that the appellant had absented himself from duty; hence, the claim that the termination of employment was unlawful and unjustified is in error. The respondent also asserts that, following a mutual agreement between the parties that the appellant would retire at the end of October 2021, she failed to attend work from 6 October 2021, thereby terminating employment without notice. Payment of due wages for September 2021 was made, and the claims made are without merit. Indeed, the learned magistrate analysed the facts and held that an employer who advances desertion as a ground must be mindful of the legal requirements for proving desertion. In **Stanley Omwoyo Onchweri v Board of Management Nakuru YMC Secondary School [2015] eKLR,** the court held that desertion is not the same as taking leave without permission. Desertion is done without the intention of returning to work. In this case, the learned magistrate held that the appellant had left her workstation after being blamed for losing the car keys. She packed her clothes and left. Despite being called by the respondent, she could not be traced. She did not have a smartphone or email, and she had indicated that she no longer wanted to work. On this basis, the learned magistrate held that there was desertion of duty. The appellant terminated her employment. The respondent had, on humanitarian grounds, increased her wages to Ksh. 20,000 as a gesture of kindness, but the application had taken the route of ungratefulness. In employment relations, the employer has the legal duty to keep work records. This is an imperative under section 10(3), (6) and (7) together with section 74 of the Employment Act (the Act). Whereas the Act allows the employer to commence the employment relationship through an oral contract, such must be reduced to writing two months after the commencement of employment pursuant to section 10(3) of the Act. The employer must issue the employee with written terms and conditions of service. The written employment contract is not solely for the benefit of the employee. It serves the employer as well. Under it, the employer is insulated. The written contract becomes the foundation of the employment relationship. In **Safina Transporters Limited v Onyango [2024] KEELRC 2623 (KLR),** the court held that where employment commences through oral terms, the employer is required under Section 10(3) to reduce such oral terms into writing within two months. Where there is no compliance, the employee's word is taken as correct. A written contract of employment not only protects the employee but also the employer. Under the written agreement, the court can discern the parties' intentions. In the case of [**Caroline Gathoni Gikonyo v Kenya Association of Investment Groups**](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/37)**[2015] eKLR,** the court held that: *… A written contract is the fodder for an employment relationship. Such a written document enables each party to the employment relationship to know the terms and conditions of such employment. So important is such a document that sections 9 and 10 of the Employment Act are fully dedicated to the subject of what should go into an employment contract.* In [**Elly Ayieko Gwara v Evans Sunrise Medical Center**](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/962) **[2020] eKLR,** the court emphasized this fact and held that: *Written communication between an employer and employee is the fodder of fair labour relations. Such assistance is available to the court where there is a dispute, as herein. It is also a legal requirement that all instructions to the employee by the employer which touch on the terms and conditions of employment be made through written notice pursuant to the provisions of section 10(1) and (7) of the Employment Act, 2007.* In this case, the lack of written terms of employment extended to the maintenance of employment. The applicant asserts that the respondent, her employer, directed her to find the lost car keys or leave the workplace. The respondent, as the employer, asserts that there was a mutual separation agreement at the end of October, but on 6 October 2021, the applicant absconded from duty. Efforts to trace her were fruitless. Without any written terms or notices terminating employment, the court must believe the employee. The rationale is section 10(3) of the Act. The employer must issue written terms of employment under the law. The employer must issue a written notice terminating the employment relationship under section 18 of the Act. With regard to the alleged desertion of duty, this goes to the heart of the employment relationship. It becomes a fundamental breach of the employment contract. Indeed, in **Ronald Nyambu Daudi v Tornado Carriers Limited [2019] [2019] KEELRC 2150 (KLR),** the court held that Desertion of duty is a grave administrative offence, which, if proved, would render an employee liable to summary dismissal. In **Evans Ochieng Oluoch v Njimia Pharmaceuticals Limited [2016] eKLR***,* the court held that it is not enough for an employer to state that an employee has deserted duty. The law is that an employer alleging desertion against an employee must show efforts to reach out to the employee and to put them on notice that termination of employment on this ground is under consideration. See [**Ableey v Kenya Airports Authority [2024] KEELRC 1410 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1410/eng%402024-03-20) where the court emphasised that an employer who terminates the services of an employee on grounds of abscondment or desertion has to demonstrate and prove that the employee had no intention of resuming work. In this case, the appellant alleges that she did not have a smartphone through which she could be reached or to which an email could be sent, and the respondent did nothing. The alleged calls to the appellant have no record. Ultimately, where the employee deserts duty without notice, the employer has a legal duty to end the employment relationship formally. This is a legal imperative under section 18(5) (b) of the Act. The employer who cannot trace the employee alleged to have deserted duty, despite making all efforts, including issuing notice through the address contemplated under section 10(3) of the Act, must serve notice upon the Labour Officer to this effect. See [**Ayub Kombe Ziro v Umoja Rubber Products Limited [2022] KEELRC 141 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/141/eng%402022-04-04)**.** In this regard, without proof of efforts taken to address the alleged gross misconduct of desertion of duty, the respondent failed to secure its rights, if at all, and hence unlawfully terminated the appellant's employment. Without adherence to the due process envisaged under sections 41 and 44 of the Act, employment was terminated unfairly. The claim for notice pay and compensation is justified. The appellant worked for the respondent without any written record of misconduct from November 2019 to October 2021. For the two complete years of service, a compensation of two months is hereby found appropriate at the wage of Ksh. 20,000, the appellant is entitled to Ksh. 40,000. Notice pay is due to Ksh. 20,000. Regarding the claim for service pay, the trial court addressed it well and allocated Ksh. 10,000 based on the lack of any record and payment of statutory dues. Regarding the claim for 21 days of annual leave, taking annual leave is indeed a right under section 28 of the Act. The employer must keep the work records of the leave days taken. Without any records of the alleged dates the appellant took her annual leave, the claim is justified at Ksh. 16,153.84. Regarding the claim for 22 public holidays, these are special days. The Minister gazettes each. The employee who works on such a day must particularise each day accordingly. It cannot form a general claim. In her overtime claim, the appellant asserted that she would work from 5 am to 11 pm. The respondent stated that work would start at 7 am, with intermittent breaks until 6 pm. Going back to the need for work records, the court must believe the employee. However, a claim that one was to work continuously from 5 am to 11 pm is an exaggeration. It is not humanly possible or practical that for over two years, the appellant was on her feet working for the respondent for such long periods. Indeed, she admitted she took a day off each week. Equally, the respondent's admission that work would start at 7 am and end at 6 pm suffices to confirm that, for 11 hours, the appellant was at the duty station and available to work. The intermittent breaks are a workplace accommodation, but for time at work. The appellant remained in the employer's service. Each of the 5 days per week, the appellant worked 3 extra hours. Overtime claims are, in their nature, continuing injuries under section 89 of the Act. Such should be claimed within 12 months upon occurrence, as held in [**Bichanga v Mount Kenya University [2024] KEELRC 985 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/985/eng%402024-04-11) and in **The German School Society & another v Ohany & another (Civil Appeal 325 & 342 of 2018 (Consolidated))[2023] KECA 894 (KLR) (24 July 2023) (Judgment)****.** In this regard, the overtime is only due for the last 12 months of employment. For the 5 days each week, the total hours of overtime are 780 x 121.30, the hourly rate pursuant to the applicable Wage Orders. Total due is Ksh. 94,614 in overtime pay. On costs, the appeal addressed above, the dues owing to the appellant assessed, each party should meet its costs for the appeal and trial court. **Accordingly, the judgment of the trial court is hereby reviewed in the following terms:** 1. **There was unfair termination of employment.** 2. **Compensation Ksh. 40,000.** 3. **Notice pay Ksh. 20,000.** 4. **Service pay Ksh. 10,000.** 5. **Overtime pay ksh. 94,614.** 6. **Leave pay Ksh.16, 153.84.** 7. **Taking these tabulations into account, each party should meet its costs.** **Delivered in open court this 29th day of June 2026** **M. MBARŨ** **JUDGE** **In the presence of:** **Court Assistant: Samuel Maruga** ……………………………………………… and ………………….…………………………..