https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1706

Kimanthi v Shah (Appeal E009 of 2024) [2026] KEELRC 1706 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1706 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Appeal E009 of 2024 NJ Abuodha, J June 19, 2026 Between Mrs. Tabitha Kimanthi Appellant and Mr. & Mrs Sushma Nimish Shah Respondent (Being an appeal from the Judgment of Honourable P.K. Rotich delivered on 15th December, 2023 at Nairobi in Milimani ELRC Case No. 1807 of 2018) Judgment 1.Through the Memorandum of Appeal dated 11th January, 2024, the Appellant appeals against whole of the Judgment of Honourable P.K. Rotich delivered on 15th December, 2023 at Nairobi in Milimani ELRC Case No. 1807 of 2018 on grounds inter alia:a.The learned magistrate erred in law and fact by allowing the respondent’s claim as contained in the judgment.b.The learned magistrate erred in law and in fact in allowing the claim of Kshs.670,553.84/= for 8463 hours weekdays for overtime worked without evidence.c.The learned magistrate erred in law and in fact in allowing the claim of Kshs.258,810.25/= for 3256 hours weekly resting days overtime without evidence.d.The learned magistrate erred in law and in fact in allowing the claim of Kshs. 78,692/= for 990 hours of public holidays overtime worked without evidence.e.The learned magistrate erred in law and fact in finding that the Respondent was unfairly dismissed while she absconded.f.The learned magistrate erred in law and in fact in allowing the claim of Kshs. 9,600/= for 63 days annual leave in 3 years while there is evidence that the claimed leave was not owed.g.The learned magistrate erred in law and in fact in allowing the claim for severance pay of Ksh. 32,192.30 while the Respondent was not declared redundant.h.The learned magistrate erred in law and in fact in granting 12 months’ salary compensation for unfair termination which was excessive in the circumstances.i.The learned magistrate erred in law and fact in dismissing the Appellant’s counterclaim. 2.The Appellant consequently prayed that the appeal be allowed and the judgment and decree of the Magistrates court in Milimani ELRC Case No. 1807 of 2018 be set aside and substituted by an order of dismissal of the suit with costs and further that judgment be entered for the appellant on the counterclaim with costs. 3.The Appeal was disposed of by written submission Appellant’s Submissions 4.The Appellant’s Advocate, Mr. Ogutu submitted among others that the respondent absented herself from duty and was never unfairly terminated. This according to counsel, was tantamount to absconding duty hence was never unfairly terminated as alleged. According to counsel, absconding duty was gross misconduct under section 44 of the Employment Act hence the dismissal of the respondent was valid. In this respect, counsel relied on the case of Ngagaya v. Securitas Kenya Limited [2025]KEELRC, where the court found that the claimant had absconded duty and this amounted to gross misconduct hence was liable for summary dismissal. Similarly, the respondent in this case absconded duty and cut off all communication with the appellant and that the appellant tried to reach her without success. Counsel further submitted that the appellant produced before the trial a letter dated 5th August, 2019 addressed to the local labour office and that the letter detailed the particulars of the respondent’s failure to resume work with evidence of her salary payments and loan advancements however the trial court ignored this crucial evidence. In this regard, the appellant relied on the case of Charo v. Shreeji Enterprises Limited [2025]KEELRC 2684(KLR) where the appellate court dismissed an employee’s appeal against the lower court’s decision that upheld the dismissal over prolonged absence after an alleged road accident. 5.On the question whether proper procedure was followed in terminating the service of the respondent, counsel submitted that where an employee absconds duty and cannot be traced, the matter cannot be handled through handled through the internal channels but has to be reported to the labour office which the appellant did. In this respect, counsel relied on the case of Central Furniture Shop Ltd v. Alfani Mohoammed [2025] where counsel submitted that the court rules that desertion of duty was a unilateral act and could not simply operate to close a contract of service. Counsel further submitted that this was a special case since the respondent was a domestic servant taking care of the appellant’s sickly mother, she could not be left alone and therefore the appellant had to replace the respondent immediately once they could not reach her. 6.Regarding the question of whether the respondent was entitled to the reliefs sought, counsel submitted regarding service pay that since the respondent claim was not based on redundancy the trial court was right in rejecting the claim. Concerning the award for overtime counsel submitted that this was a special damage claim and had to be specifically pleaded and particularised with clarity and strictly proven by evidence. According to counsel, the respondent did not plead the specific rest days and public holidays when he allegedly worked overtime. The respondent further did not present evidence that she worked extra hours. According to counsel, the appellant testified that the respondent used to work from 8:00 a.m to 5:00 p.m with one hour lunch break and from 7:00 p.m to 8:00 p.m from Monday to Saturday and that she was off duty on Sundays. Her duties were mainly to prepare breakfast for the appellant’s mother and serve her lunch and supper. She would then clean dishes and that this was not disputed by the respondent. 7.Concerning the issue of untaken leave days, counsel submitted that the respondent did not demonstrate under section 47(5) of the Employment Act that she was entitled to untaken leave. The appellant however demonstrated through evidence that the respondent had utilised all her leave days and that indeed that when she deserted work, she had come from leave. The trial court therefore lacked the basis for granting this relief. On the award of one month’s salary in lieu of notice counsel submitted that summary dismissal under section 44 of the Act disentitles an employee an award of salary in lieu of notice and on the issue of the award of 12 months’ salary as compensation for unfair termination, counsel submitted that the respondent’s dismissal was fair hence not entitled to the award. Further, the trial court awarded the maximum award with taking into considerations provided under section49(4) of the Act. The respondent was awarded maximum compensation yet there was clear evidence of misconduct. Respondent’s Submissions 8.Counsel for the respondent Ms. Njenga on the other hand submitted among others that the memorandum of appeal dated 11th January, 2024 was defective in that it purported to challenge and impeach a judgment delivered in Milimani Cause No. 1807 of 2018 delivered onn 15th December, 2023 which judgment did not exist. However, the supplementary record of appeal tendered a judgment delivered on 30th November, 2023 which was not under challenge in these proceedings. Counsel submitted that the decision of the lower court which was delivered on 30th November, 2025 was well grounded in the principles of law and evaluation of oral testimony and documentary evidence. 9.Regarding the merits of the appeal, counsel submitted that termination of employment was provided for in the Employment Act under sections 43 and 45 which required that an employer proves a valid and fair reason for the termination of service on an employee and that a fair procedure is followed in the process. According to counsel, the appellant grossly failed to comply with the law in that regard. The respondent on the other hand demonstrated that she was terminated without reason and that the respondent failed to follow the prescribed procedure in terminating her service. The appellant failed to provide evidence at the trial that they complied with the law while terminating the respondent’s service. Consequently, the trial court correctly found that the respondent’s oral testimony remained unchallenged and uncontroverted. In this regard counsel relied on the case of Daniel Mburu Muriu v. Hygrotech East Africa Ltd [2021]eKLR and David Gichana Omuya v. Mombasa Maize Millers Ltd [2014] eKLR and Walter Anuro v. TSC [2013] eKLR. 10.Ms. Njenga further submitted that from the appellant’s witnesses during the trial at the lower court, they admitted that the respondent was neither issued with notice to show cause or a notice for disciplinary hearing and none was conducted before the termination. The contention by the appellant that the respondent absconded and switched off her phone was not persuasive and the appellant did not tender any evidence demonstrating attempts made to reach the respondent. The lower court therefore correctly found that the respondent’s employment was unfairly and unlawfully terminated 11.Regarding overtime counsel submitted that in disputing this claim, the appellant’s were shifting the burden of proof to the respondent yet from the record the claims were pleaded by the respondent, oral evidence tendered and that these were never controverted by the appellants and further that the appellants’ evidence was that the respondent worked the whole day without off and long hours because of the nature of the work she was doing which was taking care of the appellant’s old mother. Further, the appellant never tendered any employment records to dispute the respondent’s claims as required by law. 12.According to counsel, overtime are hours worked in excess of statutory 8 hours per day and is payable at 1.5 hourly rate per every hour worked in excess. Counsel in conclusion submitted that the appellant had not demonstrated any reason why the trial court’s judgment should be interfered with by this court. Determination 13.The court has considered the grounds in the Memorandum of Appeal, the Record of Appeal and the submissions filed by the parties herein and authorities relied on and would as usual state that it is now settled law that the duty of the first appellate court is to re-evaluate the evidence presented before the subordinate court both on points of law and facts and come up with its own findings and conclusions as was held in Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, where it was stated that:-“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” 14.The Judgment of the trial court was that the respondent’s claim was allowed and the trial court awarded her a consolidated sum of Kshs. 1,300,48/- itemised in the judgement and costs of the suit. 15.The appellant feeling aggrieved by the finding of the trial court, brought the present appeal against the entire judgment of the trial court and urged that the same be set aside in its entirety and be replaced with a judgment allowing the appeal and dismissing the suit in the court aquo. 16.As observed above concerning the role of this court as a first appellate court, its primary role is to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial court are to stand or not and give reasons either way. The Court as an appellate court is further reminded not to replace its own opinion of what could have been a better interpretation and ultimate finding on the facts before the trial court if those facts and evidence, align with reasonable conclusions over the issues in dispute and are supported by law. 17.The appellant has urged this court to overturn the finding by the trial court that the termination of the respondent’s service was unfair and argued that the respondent having absconded duty hence the appellant justified to summarily dismiss her. On the issue of valid reasons for termination, the trial court stated that the respondent did not prove reasons for the termination in that the appellant did not produce any tangible evidence that she tried to contact the claimant to find out where she was. From the proceedings, the respondent stated as follows:“…on 23rd July, 2019, my boss brought another employee, a lady and told me the following day 24th July, 2023(sic) and I left. My boss also told me to go back and resume duties on 1st August, 2019 on coming back, my employer the respondent Mr & Mrs. Shushma Nimishi Shah told me there was no work and I left not paid terminal benefit. I was not paid advance of Kshs. 10,000/-On the same issue, the appellant’s witness testified as follows:“…I sent the claimant on leave on 17th July, 2019 to 1st August, 2019, reported to work on 1st August, 2019 and stated she had gone to see her brother and will start work the following day. The plaintiff came back on 5th August, 2019 picked her belongings and left. I called her but could not reach her on phone. Went to the Labour Office made a calculation and took her cheque for terminal dues to the Labour Office. 18.From the foregoing witness testimony, it is more probable than not that the lady the respondent claimed was brought by the appellant on 23rd July, 2019, was her reliever while on leave since it was not a strange coincidence that the following day the respondent left and claimed she was told to return to work on 1st August, 2019. Further, whereas the respondent claimed that she returned on 1st August, 2019 as was told by the appellant, she did not come clear on whether her leaving on the 24th when she claimed the appellant brought another employee, was out of protest or was proceeding on leave. 19.According to the appellant however, she sent the respondent on leave on 17th July, 2019 to return on 1st August, 2019 but when the respondent returned on 1st she claimed she was tired and needed a rest and that she would go to see her brother start work the following day. The appellant further stated that the respondent came back on 5th August, 2019 picked her belongings and left. If it is correct that the respondent was released to go on leave which she never denied and according to the appellant she was to proceed on leave on 17th, the only reasonable conclusions from the respondent’s claim that she left on 24th after the appellant brought another employee, is that she either left on 24th in protest or she was not being truthful about her testimony that she came back on the 1st and was told by the appellant that there was no work. 20.The appellant’s statement that the respondent came back from leave on 1st as requested but asked that she resumes work the next day and, in the meantime, visit her brother therefore becomes more plausible more plausible than the respondent’s statement. Further, the appellant’s statement that the respondent did not return the next day (2nd) was more credible than the respondent’s statement that she was told that there was no work. In the circumstances there was sufficient evidence that it was more probable than not that the respondent absconded duties than that she was terminated unfairly. 21.The appellant sated before the trial court that after the respondent came to her home, packed her things and left, the appellant was unable to reach her, however the respondent got know that her issue had been reported to the labour office. Which leads to only two reasonable conclusions that the respondent was deliberately avoiding communication with the appellant but was aware that the appellant was looking for her and had even reported her case to the Labour Office which she became aware of. 22.In a defence of absconding duties, the employer is required to demonstrate that efforts were made to reach the employee without success. In this particular case the appellant reported the disappearance from work by the respondent to the Labour Office which the respondent had conceded she was aware of. The trial court’s finding that there was no tangible evidence that the appellant tried to contact the respondent was therefore erroneous. 23.The Court having found that there was sufficient evidence that the appellant was justified in terminating the respondent’s service on account of absconding duties, the issue of procedural fairness does not arise since the respondent was never there to be subjected to such process. The trial court’s finding on this issue is also found as flawed. 24.Concerning the reliefs sought and granted by the trial court, it would seem the trial granted the same as prayed without interrogating the rationale or otherwise of such claims. For instance, in domestic work of a in-person house-help, computation overtime can be problematic. This a worker who lives in his or her place of work like part of the family. The routine work could be waking up early to prepare breakfast and where there are school going children, prepare and assist them to leave for school and later on receive them back from school. For those returning over lunchtime the house-would be expected to prepare lunch or a snack. In cases where there is an infant, the house help would be expected to attend to the infant including bathing, feeding and putting them to sleep as babies mostly do throughout the day and night. In the evening, the house-help maybe involved in the preparation of meals for the family. When the tasks mentioned are done, the house-help will be involved in. general cleaning of the house and most times laundry. 25.It is conceded that the work may be a lot but not in every case does a house-help work nonstop the aggregation of which would all the time result in working overtime. A claim for overtime work cannot be ruled out for domestic help but just like in other cases where overtime is claimed, must be justified by calling upon the house-help to lead evidence on his or her daily routine for the court to be able to see thereby that such routine could not be accomplished without working overtime. Domestic work is critical and an essential driver of our economy by providing backroom support in our homes when out there working or doing business to earn income that end up providing for their salaries to support their livelihood and those who depend on them. It would therefore be inimical to their own chances of work if employing them would open a can of worms for huge and unjustified claims for overtime. 26.In this particular case, apart from routine work of a house-help, the respondent was taking care of the appellant’s mother. There was no evidence led before the trial court that this was intensive and non-stop, the aggregation of which would entail working more than eight hours per day and every day. They trial court appeared to have proceeded more on assumption than evidence. 27.Regarding the award for 12 months’ salary as compensation for unfair termination, the court having found that the respondent absconded duty, this award was not merited and is hereby set aside. 28.In conclusion, this court finds and holds that the appeal is merited and hereby sets aside the orders of the trial court that the respondent was unfairly terminated and consequential orders on compensation, and substitutes the same with an order dismissing the suit with no order as to costs due to the circumstances of this case and the relationship between the parties prior to their separation. For avoidance of doubt, the respondent will be entitled to collect her terminal dues as calculated and deposited with the labour office if not collected already. 29.It is so ordered. DATED AT NAIROBI THIS 19TH DAY OF JUNE, 2026DELIVERED VIRTUALLY THIS 19TH DAY OF JUNE, 2026ABUODHA NELSON JORUMPRESIDING JUDGE-APPEALS DIVISION