https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1825

 REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT KILIFI COUNTY COURT NAME: MALINDI ELRC CASE NUMBER: ELRCA/E019/2025 SALIM MUNGA VS ASSOCIATED CONSTRUCTION CO. (K) LIMITED JUDGMENT Background 1. The Appellant, Salim Munga, was the Claimant before the Principal Magistrate’s Court at Kaloleni in MCELRC No. E094 of 2024. He filed the suit against the Respondent, Associated Construction Co. (K) Ltd, by a Memorandum of Claim dated 1st July, 2024. The claim arose from an alleged unfair and unlawful dismissal from duty, and non-payment of terminal dues and contractual benefits. The Appellant sought a declaration that the Respondent unlawfully and unfairly, summarily terminated his employment, and further sought the following liquidated reliefs: a) 1 month’s salary in lieu of notice of… KShs 9,800.00 b) Salary arrears……………………………………KShs. 19,600.00 c) Leave allowance for 6 years……… …. KShs. 47, 491.92 d) House allowance………………………………..KShs. 105.840.00 e) Public Holidays worked ………………………KShs. 22,615. 20 e) Overtime compensation………………………KShs. 88, 189.92 1. NSSF deductions not remitted………………KShs. 800.00 2. Compensation for unfair termination……... KShs. 117,00.00 3. The Respondent opposed the claim by a Response to the Memorandum of Claim dated 27th January, 2025. The Respondent denied the Appellant’s cause of action against and entitlement to the reliefs sought. 1. After hearing the parties on their respective cases and considering their evidence and submissions, the trial Court allowed the Appellant’s case only to a very limited extent. The Appellant’s Case before the Lower Court 1. It was the Appellant’s case before the trial Court that he first entered the employment of the Respondent on 1st July 2016 as a Mason, at a monthly salary of KShs. 9,800 until 15th June 2022, when the Respondent summarily terminated his services. 2. He stated that on 15th June, 2022, as he was leaving work, one Mr Harrison Wachira instructed him not to report for work the following day. According to him, Mr Harrison told him that he would be called later to resume work, but he waited for the call, and it never came. 3. The Appellant further stated that he was not given notice of termination and was not paid in lieu of notice. He also stated that he never took leave during his employment with the Respondent. He worked more than the 8 hours stipulated by law; he was not paid a house allowance during his employment, and he worked on public holidays without compensation. 4. He further stated that the Respondent failed to pay him his salary for February and March 2022. 5. He further alleged that at all material times the Respondent deducted NSSF contributions from his salary but failed to remit them to the relevant Authority in some months, contrary to sections 20 and 21 of the Employment Act, 2007. 6. The Appellant argued that the termination of his employment was without justification and adherence to the procedural requirements of the Employment Act. The Respondent’s Case before the Lower Court 1. The Respondent called one witness, KipKosgei James Snow, the Respondent’s Project Administrator, to give evidence before the lower Court. The witness stated that the Appellant was not employed by the Respondent on 1st July 2016. Contrary to the Appellant’s allegation, he was employed from 21st September 2021 to 15th June 2022 as a Mason at the Respondent’s road construction site for the Jomvu Kuu–Jitoni–Rabai road in Kilifi County. He earned an all-inclusive salary of KShs. 10,400. 1. He stated that the Respondent’s contract for the road construction project was temporarily suspended by the Government due to insufficient funds. This led the Respondent to temporarily release the Appellant from his employment. Once the Government allocated funds for the project, the Appellant was to be advised to resume his duties. The Appellant was notified of the situation and the Respondent’s decision through the letter dated 15th June 2022. 2. He further asserted that the Appellant never worked on public holidays or weekends. Additionally, the Appellant’s NSSF statement showed that the monthly deductions had been remitted. As the Appellant had not worked for a continuous period of twelve months, he did not qualify for annual leave. Judgment of the Lower Court 1. After hearing the parties and considering their respective evidence and submissions, the learned trial Magistrate found that the Appellant failed to prove his case for unfair and unlawful termination of employment. She declined all the reliefs sought, save for two months’ salary arrears and the issuance of a certificate of service. The Appeal before this Court. 19. Dissatisfied with the whole judgment, the Appellant appealed against the decision on the following grounds: 1. The Learned Magistrate erred in law and fact in holding that the Appellant was not employed from June 2016 to June 2022, despite the Appellant adducing an NSSF provisional Member Statement of Account confirming continuous working engagement with the Respondent since July 2016. 2. The learned Magistrate erred in law and fact in failing to acknowledge that the Appellant was unfairly terminated from employment, was never issued with any valid reason for termination, or any notice of temporary suspension of the Respondent’s operation. 3. The Learned Magistrate erred in law and fact in failing to appreciate that the Respondent did not produce work records for the period August 2017 to confirm that indeed the Claimant was not part of the Respondent’s employees when the project is stated to have commenced. 4. The Learned Magistrate erred in law and fact in arriving at the conclusion that the Appellant was undeserving of his sought reliefs, including overtime allowance, off days and holidays allowance, despite there being overwhelming evidence in support of the same. 5. The Learned Magistrate erred in law and fact in failing to find that the termination of the Appellant’s employment was unlawful for the reason that the Appellant was not granted a hearing as contemplated under the mandatory provisions of section 41 of the Employment Act. 6. The Learned Magistrate erred in law and fact in failing to award the Appellant service pay for unremitted NSSF deductions from his salary despite the NSSF extract showing there were no remittances by the Respondent for months, but the same were being deducted. Analysis and Determination 1. I have carefully considered the record of appeal, the grounds of appeal, the judgment of the lower court, and the parties’ submissions filed in this appeal. The following issues arise for determination: whether the learned trial Magistrate erred in law and fact in finding that the Appellant’s employment was not terminated; and whether the Appellant was entitled to the reliefs sought. 2. This being a first appeal, this Court is required to reconsider and re-evaluate the evidence on record and draw its own conclusions, bearing in mind that it neither saw nor heard the witnesses testify. 3. Was the Appellant’s employment terminated? The Appellant’s case was that on 15th June, 2022, Mr Harrison Wachira informed him not to report to work the following day, citing a lack of further work and assuring him that he would be contacted later to resume his duties. While acknowledging that the Appellant was released from work on that date, the Respondent contended that the release was temporary, pending the resumption of the road construction project, which the Government had temporarily halted due to a lack of funds. 4. This Court notes that, in fact, a letter dated 15th June 2022 addressed to the Appellant, captioned ‘Unpaid Leave’, explicitly spoke to the Respondent’s situation and the decision to release the Appellant temporarily. 5. In my view, after carefully considering the evidence of the Appellant and that of the Respondent, there appears to be a clear convergence between the Appellant’s version of events and that advanced by the Respondent on one critical aspect: the separation from employment on the said date was never intended by either party to constitute a final termination of the employment. The evidence pointed to a mutual understanding that the separation was temporary and occasioned by the suspension of the road construction project, with the expectation that the Appellant would resume duty once the project recommenced. 1. In light of the foregoing premise, the Appellant could not properly and successfully argue that her employment was terminated by the Respondent on the said date. What occurred was not a termination of employment in its proper sense. 2. To anchor a claim for unfair termination on the 15th June 2022 would be to disregard the common understanding of the parties at the time and to assign a finality to the separation that neither party contemplated. The Appellant would not be allowed to appropbate and reprobate; she cannot, on the one hand, acknowledge that the separation was temporary, and on the other hand, contend that the same amounted to outright termination of employment. The law demands consistency with the facts of the case, and those facts do not support a finding that termination occurred on that day. 3. Section 47[5] of the Employment Act establishes a reverse system of burden of proof. It places a duty on the employee to first establish that an unlawful termination of employment or wrongful summary dismissal occurred, after which the evidential burden shifts to the employer to justify the termination or summary dismissal. Where the employee does not discharge this initial burden, their case would collapse at that hurdle. 4. Having found, as I have hereinabove, that what occurred on the date stated above was not a termination of employment but a temporary release of the Appellant from his service for the stated reason, I find that the Appellant did not discharge his legal burden under Section 47[5] of the Employment Act. The trial Court did not err in finding the claim for unfair termination unproven. 5. If, as the Appellant contends, the Respondent thereafter failed to recall him to work within a reasonable period, or failed to communicate its intentions regarding the continuation of the employment relationship, the gravamen of his complaint would not be an unfair termination occurring on 15th June 2022. Rather, his cause of action, if any, would arise from the Respondent’s subsequent conduct, which effectively demonstrated an intention not to be bound by the employment contract. 1. In the circumstances, the more legally sustainable claim would be one founded on constructive dismissal. The alleged wrong could therefore stem not from the temporary separation itself, but from the Respondent’s subsequent conduct, which, measured against the legal threshold, could be said to have repudiated the contract and rendered continued employment untenable. 2. This Court notes that the Appellant sought two categories of relief before the lower court. The first relates to the claim for unfair termination, including notice pay under section 35 of the Employment Act, read together with section 36, and compensation for unfair termination pursuant to section 49[1][c] of the Employment Act. The second comprised reliefs not dependent on that claim, such as compensation for house, unpaid house allowance, compensation for leave days earned but not utilised, and compensation for public holidays worked but not paid for. 3. Having concluded that the claim for unfair termination was rightly dismissed by the learned trial Magistrate, it is not difficult to conclude that the remedies for compensation for unfair termination and notice pay were likewise rightly dismissed. 4. The Appellant claimed what he termed ‘Overtime’. The learned trial Magistrate declined the claim on the basis that it was, in nature, a continuous injury claim and, as such, ought to have been filed within twelve months of the cessation of the injury, per the stipulations of section 89 of the Employment Act. The learned trial Magistrate was right in viewing the Claim as a continuing injury claim, which was time-barred by dint of the stated provision. See German School Society vs Helga Ohany [2017] KECA 112 [KLR]. 5. I further hold that the learned trial Magistrate’s rejection of the claim for compensation for the alleged work done on public holidays was well-founded. The claim, as pleaded, was a continuing injury claim. It was supposed to be filed within twelve months of the alleged date of cessation, but it was not. 6. Further, although the learned trial Magistrate did not consider it from this angle, the claim could still fail, as the Appellant failed to specify which public holidays were worked. This Court takes judicial notice that, despite the Constitution providing for specific public holidays, additional holidays are normally declared by the relevant Cabinet Secretary, outside those set out in the Constitution. As such, it cannot be asserted that we have the same number of public holidays each year. 7. In James Orwaru Nyaundi vs Kiligoris Sacco Limited [2022] eKLR, this Court stated; “78. The claim for overtime and public holidays worked compensation has just been thrown in court. This Court has incessantly urged that this practice must come to a stop. It is not enough for a Claimant to just give figures to the court, asserting that he or she is entitled to them, cross his or her fingers hoping that the Respondent does not place documents before the Court, and as a consequence of the failure, say ‘behold, the claim is proved, the employer has not tendered in evidence any documents.’ The Claimant must, if he or she has to succeed in the claim, be specific on the days when he worked overtime, the specific public holidays, when he worked and was not paid.” 1. The reason upon which the learned trial Magistrate declined to grant the relief sought, namely compensation for earned but unutilised leave days and house allowance, was well- founded in law, and, more particularly, in light of the provisions of section 89 of the Employment Act. 2. Although the award of costs in a legal proceeding is discretionary, it is well-established law that costs follow the event. This fundamental principle is explicitly articulated in Section 27 of the Civil Procedure Act. Consequently, when a Court opts not to award costs to a victorious party, it is required to provide reasons for deviating from the general rule. I observe that the learned trial Magistrate considered the limited success of the Appellant’s claim and subsequently declined to award costs to the Appellant, ordering that each party bear its own costs. Indeed, the extent of a party’s success can be a pertinent factor in the exercise of discretion regarding the award of costs. Therefore, I conclude that the learned trial Magistrate did not improperly exercise her discretion. 3. In the upshot, I find the Appellant’s appeal lacking in merit. It is hereby dismissed. Each party shall bear its own costs. Read, Signed and Delivered this 23rd Day of June 2026. SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. MR. JUSTICE OCHARO KEBIRA** Malindi ELRC Employment and Labour Relations Court Date: 2026-06-23 22:44:37