https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2090

Okoth v ISL Kenya Ltd (Appeal E004 of 2023) [2026] KEELRC 2090 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEELRC 2090 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Machakos Appeal E004 of 2023 JW Keli, J July 17, 2026 Between Maurice Omondi Okoth Appellant and ISL Kenya Limited Respondent (Being an Appeal from the Judgment and Decree of the Hon. S. Jalang’o (SPM) delivered on 25th May 2023 in Mavoko ELRC No. 17 of 2019) Judgment 1.The Appellants herein, being dissatisfied with the Judgment and Decree of the Hon. S. Jalang’o (SPM), delivered on 25th May 2023 in Mavoko ELRC No. 17 of 2019 between the parties, filed a Memorandum of Appeal dated 22nd June 2023 seeking the following orders: -a)The appeal herein be allowed with costs to the appellant.b)The judgment delivered on 25th May 2023 be set aside. Grounds Of The Appeal 2.The Honourable Magistrate erred in law and fact by not holding that the claimant' s/appellant's termination was unlawful and unfair. 3.The Honourable Magistrate erred in law and fact by holding that the claimant did not prove that he was unfairly terminated yet the claimant had explained how on 3.10.2018 he attended work, worked till 4;00pm, was called by his supervisor one Mr. James Musyoki who told him that he had instructions from the Respondent's management not report to work the following day i.e. 4.10.2018. 4.The Honourable Magistrate erred in law and fact by not noting that the respondent had failed to call crucial witnesses e.g. Mr. Pius Munandi (H.R manager and author of the Show Cause Letter dated 4.10.2018) Mr. Okello (H.R manager) Mr. Raju, Dennis Waswa (security guard) and Mr. James Musyoki (super visor). 5.The Honourable Magistrate erred in law and fact by not noting the inconsistencies in the respondents documents i.e. the Show Cause Letter is dated 4.10.2018 giving the Appellant 48 hours (arithmetically calculated to be 2 days ending 6.10.2018) to respond failure to which disciplinary action would be taken but the dismissal/termination letter was written on 5.10.2028 (barely 1 day after the show cause letter). 6.The Honourable Magistrate erred in law and in fact by holding that the Appellant absconded duty on 2.10.2018 and 3.10.2018 yet the Respondent failed to produce any evidence like the daily attendance register or duty roster for 2.10.2018 and 3.10.2018. Background To The Appeal 7.The Claimant/Appellant filed a claim against the Respondent vide a memorandum of claim dated the 10th of January 2019 seeking the following orders: -a.A declaration that the termination of the Claimant’s employment was unlawful and unfair.b.A declaration that the Respondent’s calculation/tabulation of the Claimant’s terminal/final dues was inaccurate and erroneous.c.An order for the Respondent to pay the Claimant his due terminal benefits and compensatory damages as pleaded.d.Costs and interests of the suit.e.Any other relief that this Honourable Court may deem fit and just to grant.(pages 4-6 of Appellants’ ROA dated 29th October 2025) 8.The Claimant filed his list of documents dated 10th January 2019, along with the bundle of attached documents, witness statement of the same date, and list of witnesses of the same date (pages 8-13 of ROA). 9.The Respondent entered an appearance and filed a statement of defence dated 2nd April 2019 (pages 16-19 of ROA), which was later amended and dated 14th November 2019 (pages 40-44 of ROA). In support of their response, the Respondent also submitted a witness statement from John Okello dated 27th March 2019, a list of witnesses dated 2nd April 2019, and a supplementary list of documents dated 2nd April 2019 (pages 20-34 of ROA). Subsequently, the Respondent filed a revised list of witnesses dated 14th November 2019, an amended witness statement from John Okello dated 19th November 2019, and a supplementary list of documents dated 19th November 2019 (pages 44-56 of ROA). Furthermore, the Respondent submitted a supplementary list of witnesses dated 10th May 2022, a witness statement from Samuel Gicheru dated 10th May 2022, another supplementary list of witnesses dated 10th November 2022, and a witness statement from John Kamau dated 10th November 2022 (pages 57-64 of ROA). 10.The Claimant/Appellant’s case was heard on 11th May 2022, with the Claimant/Appellant relying on his filed witness statement as his evidence in chief, and producing his documents as exhibits. He was cross-examined by counsel for the Respondent, Mr Wambua. (Proceedings on pages 6 of supplementary ROA). 11.The Respondent’s case was heard on 18th January 2023 where John Kamau testified as DW1 and was cross-examined by counsel for the claimant, Mr. Mutavi (pages 10-11 of supplementary ROA). 12.Following the hearing, the trial court gave directions on the filing of written submissions, and the parties complied. 13.The Trial Magistrate Court delivered its judgment on 25 May 2023, dismissing the Claimant’s case in its entirety, with costs (judgment on pages 83-89 of ROA). Determination 14.The appeal was canvassed through written submissions. Both parties filed. Issues for determination 15.In his submissions dated 10th February 2026, the Appellant identified the following issues for determination:-i.What was the time/date of employment of the Appellant by the respondent?ii.Whether the termination from employment was unfair/unlawful or whether the Appellant absconded duty.iii.Whether the Appellant is entitled to the reliefs sought. 16.On their part, the Respondent outlined the following issues for determination in their submissions dated 23rd April 2026.i.Whether the learned Magistrate erred in finding that the Appellant did not prove unfair termination.ii.Whether the Respondent complied with the provisions of the Employment Act.iii.Whether the appeal meets the legal threshold to disturb the findings of the trial court. 17.The court discerned that the issues placed before it for determination in the appeal were as follows-i.Whether the learned Magistrate erred in fact and law in finding that the Appellant did not prove unfair termination.ii.Whether the appellant was entitled to relief sought in the claim. Whether the learned Magistrate erred in fact and law in finding that the Appellant did not prove unfair termination. 18.The grounds of appeal were as follows-a.The Honourable Magistrate erred in law and fact by not holding that the claimant' s/appellant's termination was unlawful and unfair.b.The Honourable Magistrate erred in law and fact by holding that the claimant did not prove that he was unfairly terminated yet the claimant had explained how on 3.10.2018 he attended work, worked till 4;00pm, was called by his supervisor one Mr. James Musyoki who told him that he had instructions from the Respondent's management not report to work the following day i.e. 4.10.2018.c.The Honourable Magistrate erred in law and fact by not noting that the respondent had failed to call crucial witnesses e.g. Mr. Pius Munandi (H.R manager and author of the Show Cause Letter dated 4.10.2018) Mr. Okello (H.R manager) Mr. Raju, Dennis Waswa (security guard) and Mr. James Musyoki (super visor).d.The Honourable Magistrate erred in law and fact by not noting the inconsistencies in the respondents documents i.e. the Show Cause Letter is dated 4.10.2018 giving the Appellant 48 hours (arithmetically calculated to be 2 days ending 6.10.2018) to respond failure to which disciplinary action would be taken but the dismissal/termination letter was written on 5.10.2028 (barely 1 day after the show cause letter)e.The Honourable Magistrate erred in law and in fact by holding that the Appellant absconded duty on 2.10.2018 and 3.10.2018 yet the Respondent failed to produce any evidence like the daily attendance register or duty rooster for 2.10.2018 and 3.10.2018. 19.This being a first appellate court, it was held in Selle v Associated Motor Boat Co. [1968] EA 123 that:- “The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has 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 demeanor of a witness is inconsistent with the evidence in the case generally.” The court stands guided as it proceeds with the appeal. The appellant’s submissions 20.The Appellant contended that he was unfairly terminated. He stated that on 31.3.2017, he went to work but was stopped at the Respondent's gate by the Respondent's security guard, Mr Dennis Waswa, who said that he had instructions from the Respondent's manager not to allow him into the company. In June 2018, he was reinstated. On 3.10.2018 he reported to work as usual and worked in the day shift (till 4:00pm) but he was called by his supervisor one Mr. James Musyoki who told him (Appellant) that he (the supervisor) had instructions from the Respondent's management that the Appellant should not report to work the following day ie. 4.10.2018. The supervisor gave no explanation for that decision. The Appellant returned the following day, 4.10.2018 , but was denied entry access to the company by the Respondent's security guards who had instructions from the Respondent's management. His plea to get into the company and get an explanation bore no fruits. 21.Conversely, the respondent maintained that the Appellant absconded from duty on 2.10.2018 and 3.10.2018 without prior permission from his supervisor. On 4.10.2018 he was issued with a Show Cause Letter (R Exh. 1-page 50) which he failed to respond and was on 5.10.2018 issued with a termination letter (R Exh. 2- page 51) The appellant submitted that RW I's evidence is simply not credible. First, the Show Cause letter (R. Exh 1) is dated 4.10.2018 and authored by Plus Manandi who was not called as a witness. The letter bore no respondent's letter head or stamp. It gave the Appellant 48 hours (calculated to be 2 days ending 6.10.2018) to respond failure to which disciplinary action would be taken but the Letter of Termination of services was written on 5.10.2018 (barely 24 hours after the show cause letter and even before the 48 hours stipulated in the show cause letter lapsed). The respondent stated that the Appellant absconded duty on 2.10.2018 and 3.10.2018 while the Appellant stated that he was on duty on the said two days. Nothing would have been easier than for the respondent to produce the daily attendance register or duty rooster for 2.10.2018 and 3.10.2018 for the court's perusal. Further, the no prove that the Appellant ever received the Show Cause Letter (R Exh. 1) and Letter of Termination of services (R Exh. 2) because, RW I stated (in paragraph 8 of the witness statement-page 64) that the respondent's H.R manager called the Appellant advising him to come and pick the said show cause letter but he refused/ neglected to do so. R'W 1 stated (in paragraph 10 and 11 of the witness statement- page 59) that the Appellant never picked the Letter of Termination of services (R Exh. 2) and that the same was forwarded to the area labour officer, Athi River, needless to state that the same bears no stamp or signature by the labour officer. 22.The appellant relied on the decision In Mariita v Leading Locks & Access System 12022] KEELRC 1194 (KLR) where the court held (in par. 45) that;’ Desertion of duty is a grave administrative offence which if proved would render an employee liable to summary dismissal as held in the Ronald Nyamba Duudi vs Tornado Carriers Limited Cause No 236 of 2016..... an employer alleging desertion against an employee and putting them on notice that termination of employment on this ground is under consideration must show efforts made towards reaching out to the employee and making it clear that termination is being considered on that ground.’ DW 1 only said that the HR manager called the Appellant advising him to come and pick the said show cause letter but he refused neglected to do so. The said H.R was not called as a witness. The DW 1's evidence is just but hearsay.The respondent should have sought the help of the court to have Mr Pius Munandi, Mr Okello, Mr Raju, Dennis Waswa and the Claimant's supervisor summoned to court to give their side of the story. The Respondent's daily attendance register or duty roster for 2.10.2018 and 3.10.2018 should have been filed to confirm whether or not the Appellant absconded duty on the alleged dates. Section 43 (1) of the Employment Act, 2007 provides that:(43)(2) In any claim arising out of termination of a contract, the employer shall be required to prove the reason are reasons for the termination and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of Section 45. 23.The appellant submitted that labour and employment rights are now anchored in the Bill of Rights and are protected under Article 41 of the Constitution of Kenya, 2010. An employer cannot therefore, at the spur of the moment, tell an employee not to report to work today or tomorrow, or even order the security guards to deny him entry into the premises. Such knee-jerk decisions have no place in the employment law. On this score therefore, the appellant asserted that the termination of the respondent's employment by the Appellant without giving him a notice, the valid reasons and affording him an opportunity to be heard, was unfair within the meaning of Section 45 of the Employment Act, 2007,. The Respondent’s submissions 24.Burden of Proof- The Respondent submitted that Section 47(5) of the Employment Act places the burden of proof on the employee to establish unfair termination. This position was affirmed in the case of Indoshi v Kangari [2023] KEELRC 2799 (KLR), where the Court dismissed a claim and stated section 47(5) of the Employment Act states that, in any complaint of unfair termination of employment, or wrongful dismissal, the burden of proving that unfair termination or wrongful dismissed has occurred, shall rest on the Employee. The burden of justifying the grounds of termination shall rest on the Employer. The Claimant has not presented evidence before the Court, and has not discharged her evidential burden under section 47(5) of the Employment Act. The Respondent has presented her evidence, and discharged her evidential burden under section 47(5) of the Employment Act. The learned Magistrate correctly found that the Appellant failed to discharge this burden. The Respondent demonstrated that the Appellant was initially engaged as a casual employee and only later engaged under terms commencing July 2018. Section 2 of the Employment Act defines a casual employee as one paid at the end of each day and not engaged for longer than twenty-four hours at a time. The Appellant did not prove continuous service prior to July 2018 sufficient to convert the engagement under Section 37 of the Employment Act. The Respondent further submits that the trial court properly evaluated the evidence and made a factual finding that there was no proof of permanent employment prior to July 2018. 25.Further it's the Respondent's submission that Section 43 of the Employment Act requires the employer to prove the reason for termination. The Respondent demonstrated that: i. The Appellant absented himself from duty without lawful cause; ii. He was issued with a Notice to Show Cause; iii. He failed to respond satisfactorily; iv. His conduct amounted to gross misconduct. The Respondent submits that Absenteeism without lawful cause is recognized as valid ground for summary dismissal under Section 44(4)(a) of the Employment Act. The Respondent therefore discharged its obligation under Section 43. The Appellant was issued with a Notice to Show Cause and given an opportunity to respond. The essence of Section 41 is notification and opportunity to be heard. This position was emphasized by the Court of Appeal in Postal Corporation of Kenya v Andrew K. Tanui by stating; 'The onus was really on the appellant to show that the dismissal was justifiable after the response made by the respondent both in his documentary and oral evidence. In the case of Pius Machafu Isindu vs Lavington Security Guards Limited [2017] eKLR this Court had the following to say on the burden of proof:-"There can be no doubt that the Act, which was enacted in 2007, places heavy legal obligations on employers in matters of summary dismissal for breach of employment contract and unfair termination involving breach of statutory law. The employer must prove the reasons for termination/dismissal (section 43); prove the reasons are valid and fair (section 45); prove that the grounds are justified (section 47 (5), amongst other provisions. A mandatory and elaborate process is then set up under section 41 requiring notification and hearing before termination." The Respondent submits that it complied with the statutory procedural safeguards. The Learned Trial Magistrate erred in law and in fact in failing to appreciate that absenteeism without lawful cause constitutes gross misconduct warranting summary dismissal. Section 44(4)(a) of the Employment Act 2007 expressly provides that absence from work without leave or other lawful cause entitles an employer to summarily dismiss an employee. The evidence on record demonstrated that the Respondent absented herself from duty without explanation and failed to resume work or offer any justification for such absence. In line with the holding in Mary Chemweno Kiptui v Kenya Pipeline Company Limited [2014] KEELRC 905 (KLR) absenteeism without cause amounts to gross misconduct, and an employer cannot be faulted for terminating employment in such circumstances. The trial court therefore misdirected itself in finding the termination unfair, despite the Respondent's clear desertion of duty, which fundamentally breached the contract of employment and justified summary dismissal. The Court stated that; 'Summary dismissal on the other hand is largely at the instance of an employer. The standard applicable therefore are of a higher nature as this process is prone to abuse as the employer is in a more superior position than an employee. Summary dismissal can take place when an employer terminates the employment of an employee without notice or with less notice than that which the employee is entitled by any statutory provision or contractual term. However, even in cases of serious breach of a contract as under section 44(3) or on committing acts as outlined under section 44(4) of an employee being absent from work, being intoxicated, negligence, abusive, failure to obey lawful orders, criminal arrest or charges, suspect in a criminal case, all these serious acts, such an employee is subject to be treated as under section 41 of the Employment Act with regard to being accorded a hearing. Whether the Magistrate erred in law or fact, the Respondent submits that the learned Magistrate: Properly evaluated the evidence; Correctly applied Sections 2, 35(1), 41, 43, and 44 of the Employment Act; Correctly found that the Appellant failed to prove unfair termination. The Appellant failed to: Prove continuous employment prior to July 2018; Prove unfair termination; Demonstrate non-compliance with statutory procedure; Establish any misdirection by the trial court. The trial court's judgment was sound in law and fact. The Respondent respectfully prays that: a) The Appeal be dismissed in its entirety; b) The Judgment of the Magistrate's Court be upheld; Decision 26.The trial court held that the appellant was employed as a casual hookman by the respondent in February 2013 . This is not an issue in the grounds of appeal. The trial court applied section 47(5) of the Employment Act and held that the appellant did not prove the respondent had terminated his contract unfairly. The trial court stated that it believed that the respondent proved that the appellant absconded, was issued with show cause dated 4th October 2018 and failed to respond and thus his employment was fairly terminated on 5th October 2018.The threshold for determination of fairness of termination of employment is according to the provisions of section 45 (2) of the Employment Act to wit:- ‘45(2) A termination of employment by an employer is unfair if the employer fails to prove—(a)that the reason for the termination is valid(b)that the reason for the termination is a fair reason—(i)related to the employees conduct, capacity or compatibility; or(ii)based on the operational requirements of the employer; anda.that the employment was terminated in accordance with fair procedure.’’ To pass the fairness test the termination must pass the substantive (in terms of reasons pursuant to section 43 of the Employment Act) fairness and the procedural fairness under section 41 of the Act. 27.The appellant stated in his claim that his employment had been terminated on 31st March 2017 without terminal dues being paid to him, but he learnt his colleagues had been paid Kshs. 10,000. 28.The appellant stated that in June 2018 he was re-employed by the respondent till 3rd October 2018 when his supervisor told him not to report to work on the 4th October 2018. That he was denied access /entry on 4th October 2018 to the company by the security under instructions of management (paragraph 5 and 6 of the claim , page 4 of ROA). The appellant stated he was not subjected to any procedural fairness. Conversely, the respondent stated that the appellant was engaged as casual, stated that if the alleged dismissal occurred, which they stated is denied, the appellant was paid all due terminal benefits and compensatory damages. 29.The court perused the witness statement of John Fredrick Okelo dated 27th March 2019, and it only referred to the termination of employment on 31st March 2017. The defence was amended and as relates to the termination as follows- ‘8. The Respondent denies the contents of paragraph 7 of the Memorandum of Claim in particular that the Claimant was unfairly dismissed from employment by the Respondent and puts the Claimant to strict proof thereof. The Respondent further denies the contents of Paragraph 7 of the Memorandum of Claim but in the alternative and strictly without prejudice to Paragraph 3 above, the Respondent shall contend at the hearing hereof that if the alleged dismissal occurred at all, which is denied, the Claimant was paid all due terminal benefits and compensatory damages the same was done and due process was regarded with plausible reasons given to the Claimant before the decision to dismiss him was reached. In response to paragraphs 7 of the Memorandum of Claim, the Respondent avers that it has never summarily terminated the Claimant's employment and that the said employment was terminated when the Claimant absconded duty on the 2nd of October, 2018 without prior permission. In further response to paragraphs 7 and 8 of the Memorandum of Claim, the Respondent avers that thereafter on 4th of October of 2018, the Claimant reported back to work and was issued a show cause letter. The Claimant refused to take the letter and protested leaving the company premises. The Respondent avers that he called the Claimant back to pick the letter but he refused/neglected to do so. The Respondent further avers that following the Claimant's refusal to respond on the letter to show cause, he was issued a letter of termination of service dated 5th of October, 2018. The Claimant was requested by the Respondent to avail himself for clearance but he refused/neglected to do so. The Respondent avers that it proceeded to forward the letter of termination of service addressed to the Claimant to the labor officer, Athi River who then requested the Claimant to go and pick the said letter. The Respondent denies the contents of paragraph 8 of the Memorandum of Claim but in alternative and strictly without prejudice to paragraph 3 above, the Respondent shall contend at the hearing hereof that if the alleged wrongful’(page 41 of ROA). Mr Okelo then swore another witness statement dated 19th November 2019 as follows- ‘3. THAT Claimant herein was a casual employee in the cutting section of the Respondent's factory earning a daily rate of Kshs. 700.00/= only. The Claimant's weekly wages were payable once a week. The amount payable weekly depended on the number of days which the Claimant turned up for work during the week. That the Claimant was employed at the Respondent's factory on the 16/07/2018 and only worked in there for two (2) months in the company under a temporary contract. THAT the Claimant has never been admitted into the Respondent's service as a term employee. That on the 2/10/2018, the Claimant absconded duty without prior permission from his supervisor, he also did not attend duty on 3/10/2018. That the Claimant was issued with a show cause letter by the Respondent dated the 4/10/2018. (Find attached on the Respondent's supplementary list of documents the show cause letter dated 4th October, 2018). That the Claimant refused to take the letter and protested leaving the company premises, thus the Claimant refused/neglected to respond to the show cause letter as to why disciplinary action should not be taken against him. That the Claimant was called back by the Respondent to pick the Letter to show cause' but the Claimant refused/neglected to do so. That the Claimant was issued a letter for termination of service dated 5/10/2018 for absconding duty without prior permission from his supervisor thus showing disrespect to the management and company policies on attendance. (Find attached on the Respondent's supplementary list of documents the termination letter dated 5th October, 2018).The Respondent reached out to the Claimant requesting him to come undertake clearance, but the Claimant never showed up. The Claimant's letter of termination was then forwarded to the area labor officer, Athi River.’ 30.The court agreed with the appellant that the burden of proving unfair termination is as per section 47(5) of the Employment Act, which states – ‘(5)For any complaint of unfair termination of employment or wrongful dismissal, the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer.’ The termination was not in dispute. What is in dispute is whether it was fair, and how the termination happened. I do find the appellant discharged his burden as he proved his employment was terminated, he alleged it was unfair and explained. The burden then passed to the respondent to provide evidence of a valid reason for termination (section 43 of the Employment Act) and to prove procedural fairness (section 41 of the Employment Act). 31.The Respondent produced a show cause letter dated 4th October 2018 to effect that the appellant absconded duty on 2nd October 2018 and it asked him to show cause within 48 hours of receipt. The letter had a side note that the appellant refused to respond to the show-cause letter. The appellant stated in his claim that on 3rd October 2018 he worked, and at the end of the day he was informed by the supervisor not to report back. However, he said he reported on 4th October 2018 and was denied entry/access to the company premises. The respondent further filed a witness statement of John Kamau dated 10th November 2022. He was the procurement manager. He stated that the appellant was employed on 16th July 2018 and only worked for 2 months. That he absconded duty on 2nd October 2018 and was not on duty on 3rd October 2018. That he was issued with a show cause letter on 4th October 2018 and refused to take the letter, protesting by leaving the company premises. The respondent’s human resource manager called the appellant to pick up the show cause, but he refused. He was issued with a termination letter dated 5th October 2018 for absconding duty. (see pages 62-64 of ROA). Who was telling the truth? 32.During cross-examination, the appellant told the court that on 3rd October 2018 he was told not to report to work; he was stopped at the gate by security and denied entry to the company premises. The appellant told the court that he was not issued with a show cause letter. He also called the office, including Mr. Okello, the HR, but they did not respond. He told the court that the employer had not provided records to prove he was absent from duty. 33.The representative’s witness was John Kamau, who stated he joined the company in August 2018. He did not produce the attendance register to prove the appellant was not at work on 2nd and 3rd October 2018 when he claimed the appellant had absconded. He noted that the show-cause notice was valid for 48 hours and had expired on 6th October 2018, yet the termination took place on 5th October 2018. He also observed that the show-cause had a written note stating the appellant had refused to respond. The court noted that the note was dated 4th October 2018. The witness told the trial court that the letter was served to the labour officer, but there was no stamp. The court concluded that it was more probable than not that the show-cause letter was never served on the appellant for the following reasons: there was no evidence that the appellant had access to the respondent’s premises on 4th October 2018; nothing would have been easier than the respondent producing the attendance record or calling a witness who interacted with the employee. The witness's evidence was hearsay as he alleged that the HRM called the appellant but provided no evidence. The notice was for 48 hours to respond, yet the letter contained a note stating the appellant did not respond, dated the same day as the show cause. The 48-hour period expired on 6th October 2018, and the termination letter was dated 5th October 2018. The court finds, on the balance of probabilities, that the claimant proved he was unfairly terminated without a valid reason; thus, the trial court erred in fact and law in failing to find unfair termination. The trial court's decision is set aside, and in its place, a decision is entered that the termination was unlawful and unfair. Whether the appellant was entitled to relief sought in the claim. 34.The appellant explained he was called by Mr. Raju to return to work on 2nd June 2018. This was re-employment post termination in 2017. This testimony was not contested at the hearing. The witness statement of RW1 stated that the appellant was re-employed on 16th July 2018, but no evidence was produced. The employer had an obligation under sections 9 and 10 of the Employment Act to draw a contract, failed to do so and even failed to produce records to contradict the claim of employment by Mr Raju on 2nd June 2018. The RW1, Kamau, was not in the employment of the respondent in June 2018. He testified that he joined the respondent in August 2018. (see proceedings at page 11 of the supplementary ROA) RW1 would thus have no personal knowledge of the employment of the appellant. The court found the position of the appellant of re-employment was not controverted. It was not in dispute that the appellant had previously been in employment from February 2015 to 3rd March 2017, when the respondent terminated the services on the basis of financial reasons. The appellant stated he was not paid terminal benefits for the employment ending in 2017. The trial court, in its decision, did not decide on the relief sought. The court proceeds to do so.(Selle decision applied) 35.The appellant sought for the following relief-i.One month's salary in lieu of notice-Kshs. 18,200/=ii.Unpaid/untaken leave for the entire duration of service (Kshs. 18,200/= *2years*21/30)-Kshs. 25,480/=iii.Unpaid house allowance for the entire period of service (15/100*18,200/=*12months*2years)-Kshs. 65,520/=iv.Unfair termination- 12 month's salary (12* 18,200/=)-Kshs. 218,400/=V.Service/gratuity pay for the entire period of service(18/30*18,200/=*2years)-Kshs. 21,840/=(paragraph 8 of the claim page 5 of ROA). 36.The Respondent’s witness stated that the respondent was contributing to NSSF and relied on annexed documents under the list of 19th April 2021, and further, that at termination, the appellant had exhausted leave and had not worked on public holidays. 37.The court found the NSSF payment receipt with respect to July 2018. The court determined that the evidence covered 2018. During the hearing, the respondent's witness said he had not stated that the appellant was paid Kshs. 10,000 on termination in 2017. The court found the claim related to 2 employment periods, all claims within the three years(section 89 of the Employment Act). 38.The evidence presented by the respondent was that the appellant was a casual employee. The court found that having worked continuously for more than 2 months, the employment converted to term contract under section 37 of the Employment Act, to wit—‘37. Conversion of casual employment to a term contract(1)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.’ The conversion to term contract is confirmed by fact that the respondent issued show cause. A casual worker as defined under the Employment Act does not need to be issued with a show cause. A casual worker 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;’’ (section 2 of the Employment Act) The court holds the engagement of the appellant as casual had converted to term contract. The appellant was entitled to notice before termination under section 35 of the Employment Act, he was entitled to procedural fairness under section 41 of the Employment Act, and all the provisions on fairness. The court found that the show cause produced before court was not given to the appellant , the termination happened before the notice of 48 hours under the said letter thus the termination was unfair. The court on appeal held the termination as unlawful and unfair. 39.The notice payment is awarded as sought under section 35 of the Employment Act, Kshs. 18200 at a rate of 700 per day, the pay having been admitted by the respondent. 40.The engagement as casual having converted to term contract, the court found that the leave due under the employment, for the period ended on 31st March 2017, was due and is awarded- Kshs. 25,480 (section 28 as read with section 37 of the Employment Act). 41.On claim of unpaid housing allowance, the applicant was treated as a casual and paid a daily wage of Kshs. 700. On conversion to a term contract, he was entitled to all statutory rights of employees, including housing under section 30 of the Employment Act, to wit – ‘31. Housing (1)An employer shall at all times, at his own expense, provide reasonable housing accommodation for each of his employees either at or near to the place of employment, or shall pay to the employee such sufficient sum, as rent, in addition to the wages or salary of the employee, as will enable the employee to obtain reasonable accommodation.’ The regulation of wages orders provides a rate of 15 % of wages as housing. The claim is allowed being 15% x (700x26)18200x 12 x 2 thus Kshs. 65, 520. 42.The claim for compensation for unfair termination. The claimant did specify which of the 2 employment periods, he sought compensation. The court found that it could only work with the later employment of 2018, where the appellant was engaged on 2nd June 2018 until 4th October 2018. The court found that the claim of maximum compensation was excessive, taking into account the period of work of 4 months. The appellant did not contribute to the termination and there was no record of misconduct at work. (section 49 (4) of the Employment Act). The court awards the appellant the equivalent of 1 month's salary compensation, besides the notice pay also awarded. 43.On the service gratuity claim, the employer produced evidence of NSSF for the 2018 employment only. The court then finds the appellant was entitled to gratuity for the period from February 2015 to 31st March 2017, which is 2 complete years, and it is awarded as sought at the rate of 15 days worked per complete year. Thus, Kshs. 18,200. In conclusion 44.The appeal is allowed. The Judgment and Decree of the Hon. S. Jalang’o (SPM) delivered on 25th May 2023 in Mavoko ELRC No. 17 of 2019 is set aside and substituted as follows:- The termination is held as unlawful and unfair. Judgment is entered for the claimant against the respondent as follows –a.Notice payment for Kshs. 18,200b.Compensation for unfair termination equivalent of 1 month's salary KShs 18,200c.Untaken leave KShs 25, 480d.Housing in liue - KShs. 65, 520e.Service pay KShs 18,200Total sum of KShs.145, 600f.costs of the suit with interest on sum awarded from date of judgment of the trial court. 45.The appellant is awarded costs of the appeal. 46.Stay of 30 days granted. 47.It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 17TH DAY OF JULY, 2026.JEMIMAH KELI,JUDGE.In The Presence Of:Court Assistant: OtienoAppellant –absentRespondent –Ms. Kiama