Mini Bakeries (NBI) Ltd v Ndeto (Employment and Labour Relations Appeal E359 of 2024) [2026] KEELRC 1994 (KLR) (15 July 2026) (Judgment)

Mini Bakeries (NBI) Ltd v Ndeto (Employment and Labour Relations Appeal E359 of 2024) [2026] KEELRC 1994 (KLR) (15 July 2026) (Judgment) Neutral citation: [2026] KEELRC 1994 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Appeal E359 of 2024 DKN Marete, J July 15, 2026 Between Mini Bakeries (NBI) Limited Appellant and James Malu Ndeto Respondent Judgment 1.This matter was originated by way of a Memorandum of Appeal dated 16th December, 2024. It is an appeal from a judgment delivered on 18th November, 2024 at Nairobi in Milimani MCELRC No. 608 of 2019. 2.The Memorandum of Appeal sets out the following grounds:1.The learned magistrate erred in law in failing to determine the objection to jurisdiction on account of limitation and to find that the claim was time-barred.2.The learned magistrate erred in law and fact proceeding on the assumption that the Appellant did not tender any evidence, thus failing to consider the evidence tendered by the Appellant.3.The learned magistrate erred in law and fact in concluding that the Respondent had proven that his employment had been terminated by the Appellant.4.The learned magistrate erred in law and fact in awarding compensation which was not pleaded and for which no justification whatsoever was provided. 3.The Appellant prays for orders that;a.This appeal be allowed with costs both here and in the trial court.b.The judgment and decree of the trial court made on 18th November 2024 be set aside in part and be substituted with an order dismissing the entire suit with costs. 4.The Appellant's case before the trial court was presented through a Memorandum of Response dated 19th June, 2019, a Witness Statement of Mr. James Masinde Okello dated 12th January, 2021 a List and Bundle of Documents, and Written Submissions dated 4th September, 2023. Before this Court, the Appellant filed Closing Submissions dated 11th February, 2025 and Further Submissions dated 11th June, 2025. 5.The Appellant's case is that the Respondent was employed as a casual labourer and that his employment ended on 19th April, 2016 when he last reported to work, as confirmed by the muster roll produced in evidence. The Appellant denies that it constructively dismissed the Respondent. Its witness, one, James Masinde Okello, who occupied a comparable position to the Respondent’s testified that 19th April, 2016 was the Respondent's last day at work and that the alleged meeting of 28th April, 2016 never occurred. The Appellant points further to the Respondent's own letter of 21st April, 2016 in which the Respondent requested payment of his dues as a casual labourer as evidence that the employment had already ended on or before that date. 6.On limitation, the Appellant submits that the trial court was obliged to first determine the jurisdictional question before proceeding to the merits. The Appellant on this relies on the authority of Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] KECA 767 (KLR) and MRWN v SJN [2023] KECA 457 (KLR). Given that employment ended on 19th April, 2016, the claim filed on 26th April, 2019 was filed eight days outside the three-year limitation period under section 90 of the Employment Act, 2007 and the trial court lacked jurisdiction to in any way entertain it. 7.On evidence, the Appellant submits that the trial court's finding that the Appellant led no evidence is contradicted by the Record. Mr. Okello testified and produced four documents in evidence on 12th October, 2021. The subsequent recall order of 8th April, 2022 re-opened cross-examination of the Respondent only and did not wipe out the preceding proceedings including the Appellant's evidence. 8.On the issue of termination, the Appellant submits that the Respondent pleaded both constructive dismissal and redundancy but proved neither. Requiring an employee to produce documents for conversion from casual to permanent employment is not a repudiatory breach of contract. There is no evidence of redundancy. The Respondent did not discharge the burden placed on him by section 47(5) of the Employment Act, 2007 of establishing a case of unlawful and unfair termination of employment as was provided in the authority of Francis Makori v Bob Morgan Services Limited [2021] KEELRC 65 (KLR.) 9.The Appellant advances two objections on the issue of compensation. Firstly, compensation under section 49 of the Employment Act, 2007 was not pleaded in the Respondent's Memorandum of Claim and the trial court had no jurisdiction to award a relief not sought. This is as observed in the authority of Bernard Njoroge Kibaki t/a Njowa Njemu Enterprises v Equity Bank Limited & another [2020] KEHC 2086 (KLR). Secondly, the maximum twelve months' award was unjustified in that the trial court's sole reason for so dealing was length of service all without engagement with the section 49(4) factors in tandem with the observation and finding in Kiambaa Dairy Farmers Co-Operative Society Limited v Rhoda Njeri & 3 others [2018] eKLR. 10.The Respondent's case before the trial court was presented through a Memorandum of Claim dated 26th April, 2019, a Witness Statement of James Malu Ndeto dated 26th April, 2019, a List and Bundle of Documents, and written submissions dated 14th November, 2021. The Respondent also filed written submissions dated 9th May, 2025 before this court. 11.The Respondent then raises a preliminary objection that the appeal is incompetent. The firm of Muriu Mungai & Company Advocates LLP, which filed and conducted this appeal, was not the firm on record before the trial court. This was A.M. Kimani & Co. Advocates. The Respondent submits that the incoming firm was required to obtain leave of court or consent of the outgoing advocate pursuant to Order 9 Rule 9 of the Civil Procedure Rules before coming on record and that failure to comply renders the appeal incompetent. The Respondent relies on the authorities of Isuzu East Africa Limited (Formerly General Motors East Africa Limited) v RAA (Minor suing through her father and next friend AA) & 2 others [2023] KEHC 20079 (KLR) and Sospeter Mwangi Muchina v Lawrence Okoth & another [2021] eKLR to sustain this proposition. 12.On the issue of limitation, the Respondent maintains that his employment ended on 2nd May, 2016 when he was constructively dismissed. Time therefore started running from this date, and the claim filed on 26th April, 2019 was within the three-year limitation period. The Respondent further relies on the continuing injury proviso to section 90 of the Employment Act, 2007 and the decision in Bhogals Garage Limited v Shukhwinder Singh Jutley Purporting to Trade as Sukako Transporters Limited and/or Sukako Limited & 2 others (2017) eKLR to submit that time begins running afresh at every moment a continuing breach persists. 13.On termination, the Respondent submits that the trial court was justified in finding constructive dismissal. He relies on Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] eKLR for the principles governing constructive dismissal. He submits that the Appellant's conduct in changing the manner of conversion from casual to permanent employment and requiring him to produce documents which he had previously provided without being converted constituted a repudiatory breach. 14.On compensation, the Respondent submits that the maximum twelve months' award was justified given his approximate seventeen years of service and the manner of the termination. He relies on the authority of Titus Muriuki Ndirangu v Beverly School of Kenya Limited [2022] eKLR and urges the court to uphold the trial court's findings. He prays that the appeal be dismissed with costs. 15.The issues for determination therefore are:1.Whether there is a competent appeal before this Court.2.Whether the trial court erred in failing to find that the suit was time-barred.3.Whether the trial court erred in failing to consider the evidence tendered by the Appellant.4.Whether the trial court erred in finding that the Respondent was unlawfully dismissed.5.Whether the trial court erred in awarding compensation which was not pleaded or justified.6.Who bears the costs of this appeal. 16.On the 1st issue for determination is whether there is a competent appeal before this court. The Respondent has raised a preliminary objection on the basis that Muriu Mungai & Company Advocates LLP came on record without obtaining leave of court or consent of the previous advocates, A.M. Kimani & Co. Advocates, contrary to Order 9 Rule 9 of the Civil Procedure Rules. The two authorities cited by the Respondent, Isuzu East Africa Limited v RAA [2023] KEHC 20079 (KLR) and Sospeter Mwangi Muchina v Lawrence Okoth & another [2021] eKLR both concerned situations where advocates changed record within the same cause while proceedings in the trial court were still ongoing after judgment. An appeal to this court is not a continuation of the proceedings in the trial court. It is a fresh set of proceedings before a superior court. As was held in Kenya Pipeline Company Limited v Lucy Njoki Njuru [2014] KEHC 5103 (KLR), an appeal is a different ball game altogether and a party is at liberty to retain any advocates of their choice to conduct it without the formalities prescribed by Order 9 Rule 9. The preliminary objection fails. There is therefore a competent appeal before this Court and this answers the 1st issue for determination. 17.The 2nd issue for determination is whether the trial court erred in failing to find that the suit was time-barred. Section 90 of the Employment Act, 2007 provides that no civil action or proceedings based or arising out of the Act or a contract of service shall lie or be instituted unless commenced within three years after the act, neglect or default complained of, or in the case of a continuing injury, within twelve months after cessation. It is settled law that a court must first satisfy itself that it has jurisdiction before proceeding to the merits of any matter as enunciated in the authority of Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] KECA 767 (KLR). A judgment that fails to isolate and determine each issue including the jurisdictional issue is a nullity. This is the finding in MRWN v SJN [2023] KECA 457 (KLR). 18.The moot issue and question is when the Respondent's employment ended. The Appellant's evidence, the muster roll, the testimony of Mr. James Masinde Okello and the Respondent's own letter of 21st April, 2016 establishes 19th April, 2016 as the last recorded day of work. That letter is particularly significant: the Respondent was requesting payment of his dues as a casual labourer on 21st April, 2016 and in cross-examination he admitted that he had already been stopped from going to work by his manager before writing that letter. This is inconsistent with his pleaded case that dismissal only occurred on 2nd May, 2016. An employee who has already been stopped from going to work on or before 21st April, 2016 and writes requesting his dues on that date cannot credibly claim that he continued to be employed until 2nd May, 2016. The claim was filed on 26th April, 2019, eight days after the three-year limitation period expired on 18th April, 2019. 19.The trial court, while setting out the text of section 90, did not expressly resolve the factual dispute on the date of termination and did not explain why the primary termination claim was treated as within time. That is a misdirection on a matter going to the root of the court's jurisdiction. On the balance of evidence, the suit was time-barred and the trial court lacked jurisdiction to entertain it. 20.On the 3rd issue, whether the trial court erred in failing to consider the evidence tendered by the Appellant, the trial court held that the Appellant had adduced no evidence and on that basis treated the Respondent's evidence as uncontroverted. This is plainly wrong on the face of the Record. On 12th October, 2021, the Appellant's witness Mr. James Masinde Okello testified and produced four documents in evidence. The order of 8th April, 2022 recalled the Respondent for further cross-examination only; it did not set aside or invalidate the prior proceedings. A court that fails entirely to consider evidence submitted by one of the parties violates the rules of fair hearing and its decision must be set aside. This is as enunciated in the authority of Kiambu Unity Finance Co-operative Union Ltd v Warwathe & another [2024] KECA 663 (KLR.) 21.The 4th issue for determination is whether the trial court erred in finding that the Respondent was unlawfully dismissed. Section 47(5) of the Employment Act, 2007 places the burden of proving that an unfair termination has occurred on the employee as in Francis Makori v Bob Morgan Services Limited [2021] KEELRC 65 (KLR.) The Respondent pleaded two inconsistent causes of action: constructive dismissal and redundancy. He was required to prove at least one of these. 22.On constructive dismissal, the test requires the employee to establish a repudiatory breach of the contract of employment by the employer, conduct so fundamental as to indicate that the employer no longer intended to be bound by the essential terms of the contract. See Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] eKLR. The only conduct relied upon by the Respondent was the Appellant's requirement that he provide documents for conversion from casual to permanent employment. That is not a repudiatory breach. Requiring documentation for regularisation of employment status is consistent with an employer's legitimate interest in managing its workforce. It cannot, at law, sustain a claim of constructive dismissal. 23.On the ground of redundancy, there is no evidence that the Respondent's position was ever declared redundant. The Appellant was in fact attempting to convert his employment to permanent status which is a clear opposite of redundancy. Neither of these pleaded grounds was established or proved t any degree. 24.The trial court's finding of unlawful termination, resting on a bare reference to unspecified "uncontroverted facts" without engaging with either of the applicable legal tests, is not sustainable or supported on the evidence. 25.On the 5th issue, whether the trial court erred in awarding compensation which was not pleaded or justified, two objections arise. First, compensation under section 49 of the Employment Act, 2007 was not a relief specifically pleaded in the Respondent's Memorandum of Claim. Courts are bound by the pleadings before them and may not award reliefs that have not been sought. This is set out in the authority of Bernard Njoroge Kibaki t/a Njowa Njemu Enterprises v Equity Bank Limited & another [2020] KEHC 2086 (KLR). Secondly, even if it had been properly pleaded, the award of the maximum twelve months was unjustified. The trial court's only stated reason was the Respondent's approximate sixteen years of service, without any engagement with the factors prescribed in section 49(4) of the Employment Act, 2007. The Court of Appeal in Kiambaa Dairy Farmers Co-Operative Society Limited v Rhoda Njeri & 3 others [2018] eKLR made it clear that the statutory maximum is reserved for the most egregious cases involving blatant and contumelious disregard for the rights and dignity of the employee and that an unjustified maximum award amounts to a capricious exercise of discretion that invites appellate interference. 26.On the 6th issue, who bears the costs, the appeal has succeeded in its entirety, however, being in mind the circumstances of the case, the golden rule of costs following the event does not suffice. Parties shall bear their costs of this appeal. 27.I am therefore inclined to allow the appeal and order as follows;i.The Judgment and Decree of the trial court dated 18th November, 2024 in Milimani MCELRC No. 608 of 2019 are hereby set aside in their entirety.ii.An order be and is hereby issued and substituted dismissing the Respondent's claim in its entirety.iii.Each party shall bear their costs of the appeal. DELIVERED, DATED AND SIGNED THIS 15TH DAY OF JULY 2026.D. K. NJAGI MARETEJUDGEAppearances:Mr. Kangere instructed by Muriu Mungai & Company Advocates for the Appellant.Mr. Wachira instructed by Waiganjo Wachira & Copany Advocates for the Respondent.