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Mombassa Apparel [EPZ] Ltd v Mwanyale (Appeal E178 of 2025) [2026] KEELRC 1707 (KLR) (11 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1707 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Appeal E178 of 2025 K Ocharo, J June 11, 2026 Between Mombassa Apparel [Epz] Limited Appellant and Christine Chizi Mwanyale Respondent (Being an appeal from the whole judgment and decree of Hon. J.B. Kalo – CM delivered on the 29th day of August 2025 at Mombasa Chief Magistrate’s Court in Cause No. E162 of 2024) Judgment Background 1.Through a Memorandum of Claim dated 8th March, 2024, the Respondent sued the Appellant in the above-stated suit, seeking a declaration that her employment was unfairly terminated by the Respondent, and as such, she was entitled to the various monetary reliefs set out in her Memorandum of Claim. 2.Upon being served with summons to enter appearance, the Appallent filed a Memorandum of Appearance, and subsequently, a Response to the Claimant’s Memorandum of Claim dated 18th April 2024. It denied the Respondent’s cause of action against it and her entitlement to the reliefs sought. 3.After hearing the parties on their respective cases and considering their evidence, the learned trial Magistrate, in his Judgment delivered on the date mentioned above, allowed the Claimant’s case to a very limited extent. The Appellant challenges the limited success in this Appeal. 4.Directions were taken in this matter. This Court directed that the appeal be canvassed by way of written submissions. The parties complied. Their submissions are on record. The Respondent’s Case Before the Lower Court. 5.It was the Respondent’s case that she was first employed by the Respondent on 5th September, 2014, and that she worked for the Respondent until 25th July, 2023, when the Appellant unlawfully and unprocedurally terminated her employment without due regard for the law. 6.The contended that her employment contract was oral. She served the Appellant as a mass-production machinist at the Appellant's premises in Mombasa County. 7.On 25 July 2023, she reported for work at 8 a.m., as usual, and met the Appellant’s Human Resources Manager, Miss Beatrice Anyango, who informed her that she should not report for work again, as no further work was available due to a downturn in the Appellant’s business activity. Her inquiries about why she was being dismissed without the requisite notice and/or a hearing elicited no response from the Manager. The Manager insisted that her instructions were final. She had no option but to oblige the instructions. 8.She contended that throughout her tenure of employment, she was never permitted by the Respondent to take leave. 9.She further claimed that at separation, the Appellant refused to pay her statutory contributions, which had been paid into her NHIF and NSSF accounts, despite her having worked for the Appellant for over eight years. 10.Before her dismissal, the Respondent never provided her with any justifiable or valid grounds/ reasons for the dismissal, a proper notice of termination or any valid grounds and/ or proof of my termination 11.The Appellant, upon unlawfully terminating her services, never issued her a certificate of service. 12.Having worked for the Appellant for over eight years, she was entitled to one month in lieu of notice, gratuity, house allowance, compensation for unlawful termination, and unpaid leave days. The Appellant’s Case Before the Lower Court. 13.The Appellant called one witness, Ms Beatrice Anyango Otieno, its Human Resources Manager, who presented their case before the trial Court. 14.The witness gave evidence that the Appellant is a textile EPZ industry operating in Mtwapa, Kilifi County. The Respondent was employed by the Appellant as a mass-production machinist from 6th February 2017 to 25th July 2023 under various fixed-term contracts. Her final fixed-term contract ran from 3rd January 2023 to 25th July 2023. 15.On 15th July 2023, the witness caused a notice to be issued to the Respondent, titled END OF CONTRACT, informing her that her contract would end on 25th July 2023 and that it would NOT be extended. 16.She further stated that at all material times, the Respondent was paid the minimum wage as stipulated by law, together with a house allowance, leave, overtime payments, and other benefits, all of which were deposited into her Co-operative Bank Account. Statutory deductions, such as NHIF and NSSF, were duly remitted. 17.She further contended that the Respondent’s salary for July 2023, together with all pending arrears and statutory payments, was paid, and the Respondent was issued a pay slip accordingly. 18.She vehemently asserted that the Respondent’s employment was not terminated in the manner she described and in an unfair manner, as she alleged. Her employment came to an end by effluxion of time. The Judgement of the Lower Court. 19.After considering the parties’ respective cases and submissions, the learned trial Magistrate determined that the Respondent, at all material times, employed the Appellant under various fixed-term contracts, and that their employee-employer relationship came to an end upon the expiry of her last contract. He consequently dismissed her claim for unfair termination. 20.By reason of the foregoing, the learned trial Court declined to award the reliefs sought, such as compensation for unfair termination and notice pay, which were directly dependent on the claim for unfair termination. He further rejected the other reliefs for various reasons, save for the claim for underpayments, for which he awarded the Respondent KShs. 145, 802.35. The Appeal Before this Court. 21.The Appellant, being dissatisfied with the judgment, impugns the same on the following grounds;a.That the Learned Magistrate erred in Law and fact in finding that the Claimant was entitled to any of the reliefs sought in the Memorandum of claim.b.That the Learned Magistrate erred in fact and Law by failing to appreciate and/or consider at all the evidence adduced by the Respondent. The Appellant’s Submissions 22.Counsel for the Appellant submits that the instant appeal turns on one issue: whether the Respondent had discharged her burden of proof and /or was entitled to the relief of underpayment awarded by the trial court. 23.Counsel submits that the trial court erred in law and fact by awarding relief for underpayment and failing to appreciate that the parties are bound by their pleadings, by awarding Kshs. 35, even though the Respondent pleaded for Kshs. 67,983.50/= 24.It is further submitted that at no time during the subsistence of the Respondent’s contracts of service, nor in the course of her employment with the Appellant, did she raise any complaint or seek clarification regarding the alleged underpayment. Equity aids the vigilant, not the indolent; by acquiescing to the terms without protest, the Respondent is estopped from approbating and reprobating at this late stage. 25.It is further submitted that the learned trial Court erred in law and in fact by awarding the Respondent underpayment based on the Regulations of Wages General Amendment Order 2022, Legal Notice No. 125 of 2022, while misinterpreting the applicable geographical classification. The Court erroneously applied the wage rates prescribed for urban areas; however, the Appellant's enterprise is located in Mtwapa, Kilifi County, which is statutorily classified under "all other areas." 26.Counsel submits that the specific fact of the geographical area of operation by the Appellant was specifically pleaded by the Appellant. Further, a fact was admitted by the Respondent during trial and during cross-examination. 27.As such, the learned trial Magistrate erred in not concluding that the Appellant, at all material times, faithfully paid the Respondent in line with the applicable wage order Regulation of Wages (General) (Amendment) Order, 2022 Legal Notice No. 125 under the ALL OTHER AREAS (column 4) in the monthly category, which stipulates a monthly basic salary of Kshs. 12,995.25/ = to which the Appellants paid Kshs.12,996.00/=. 28.The underpayment award, therefore, was based on a clear misdirection as to the law, resulting in the imposition of an unjustified liability on the Appellant. The Respondent was employed at the Appellant’s plant in KILIFI throughout and, as such, was entitled to a minimum wage of Kshs.12, 996.00. The amount of KShs. The award of 145,802.35 by the learned trial Magistrate was unjustified. 29.To buttress these submissions, Counsel places reliance on John Ashirunga Mjengo v Roy Collins Karnau [20191 eKLR - Cause 386 of 2016 where the court held:. A general labourer employed at Nakuru in the year 2016 under the applicable wage orders, Regulation of Wages (General) (Amendment) Order, 2015, and shall be deemed to have come into operation on the 1st May, 2015, had a minimum wage of KShs. 10,107.10 per month, and previously in the year 2014/2015, the wage due was Ksh. 9,024.15. Where the claimant was paid Ksh. 9,100.00 per month and Ksh. 12,000.00 at the time employment terminated, there was no underpayment.” The Respondent’s submissions 30.Counsel for the Respondent submitted that the Respondent pleaded that she was assigned duties by the Appellant within the Appellant's premises in Mombasa County. The Appellant did not controvert this averment in its pleadings. It cannot be available to the Appellant to allege at this stage that its premises were in Kilifi County. 31.It is further submitted that the Respondent’s claim was properly anchored on the provisions of Section 48(2) and (3) of the Labour Institutions Act, 2007, and the trial Court correctly granted the same. The section provides as follows;2.) An employer who fails to—a.pay to an employee to whom a wages regulation order applies at least the statutory' minimum remuneration; orb.provide an employee with the conditions of employment prescribed in the order, commits an offence3.If an employer is found guilty of an offence under subsection (2), the court may, in addition to any other penalty, order the employer to pay the employee the difference between the amount which ought to have been paid in terms of the wages order and the amount which was actually paid. Analysis and Determination 32.The Appeal herein raises only one central issue, namely whether the learned trial Magistrate erred in law and fact in awarding the Respondent KShs. 145, 802.35 under the head of “underpayments”. 33.Before I delve further into assessing the merits of the appeal herein, I find it imperative to recognise the role of this Court as the first Appellate Court in this appeal. 34.In the case of Prudential Assurance Company of Kenya Ltd v Sukhwinder Sigh Jatley and Another [2007] eKLR, the Court of Appeal stated;“As a first Appellate Court, it is our duty to treat the evidence and the material tendered before the superior court to a fresh scrutiny and draw our own conclusion bearing in mind that we have not seen or heard the witnesses and giving due allowance for this.” 35.Undeniably, the Respondent pleaded in paragraph 2.0 of his Memorandum of Claim that she was, at all material times, an employee of the Respondent stationed at its premises in Mombasa. The Respondent’s Counsel submits that the Appellant did not deny the Respondent’s averment at any point during the trial and is therefore estopped from asserting on this appeal that the Respondent’s place of work was in Kilifi County rather than Mombasa County. 36.The assertion by Counsel is unfounded. In her witness statement, which the trial Court adopted as her evidence in chief, the Appellant’s witness was categorical that the Appellant’s operations are situated at Mtwapa, Kilifi County. This Court notes that, in her evidence under cross-examination, the Respondent admitted that the Appellant Company’s operations were based in Mtwapa. 37.In light of the foregoing, I am convinced by the Appellant’s Counsel’s submissions that, first, the learned trial Magistrate did not duly consider all the evidence on record. Otherwise, this vital piece of evidence, as emerges from the Appellant’s Counsel’s witness statement and from the Respondent’s cross-examination, would not have escaped his attention. Second, that, as a consequence of failing to consider the evidence, the learned trial Magistrate applied a minimum wage that was not applicable to the Respondent, since she was stationed at Kilifi County and not at Mombasa, as she had averred in her pleadings. 38.As correctly pointed out by the Appellant, the applicable minimum wage order for the Respondent was Kshs. 12,995.25. As pleaded by the Respondent, her monthly salary was Kshs. 12,000. As such, she was not underpaid. 39.In the upshot, I hold that the Respondent was not entitled to any compensation for the alleged underpayment. Had the learned trial Magistrate considered the relevant evidence mentioned above, the claim could have failed. The appeal herein is allowed. The award by the learned trial Magistrate for the sum of KShs. 145,802.35 is hereby set aside. 40.Each party to bear its own costs of the Appeal. READ, SIGNED AND DELIVERED THIS 11TH DAY OF JUNE 2026.OCHARO KEBIRAJUDGE