https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1815

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MALINDI APPEAL NO. E018 OF 2025 IBRAHIM MUPE MWABAYA......................................APPELLANT VERSUS ASSOCIATED CONSTRUCTION CO. (K) LIMITED..........................................................RESPONDENT ***(Being an Appeal against the judgment of Hon. Rita Amwayi – PM delivered on 8th July 2024 at Kaloleni MC – ELRC No. E095 of 2024).*** **JUDGMENT** **Background** 1. The Appellant, Ibrahim Mupe Mwabaya, was the Claimant before the Principal Magistrate’s Court at Kaloleni in MCELRC No. E095 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. 2. By his Memorandum of Claim dated 1st July 2024, the Appellant sued the Respondent, seeking judgment against it for the following remedies; 3. An order directing it to pay his terminal and contractual dues amounting to KShs. 450,507.77. 4. Costs of this claim and interest thereon at Court rates. 5. A declaration that his dismissal from employment was unfair and unlawful. iv. That he be issued with a certificate of service. 1. Any other or further relief as this Court may deem fit. 2. The claim was particularised as follows: a) 1 month’s salary in lieu of notice of KShs……… 10,800.00 b) Leave allowance for 5 years……… KShs. 43, 614.90 d) Pro-rata leave …………………………………Kshs. 4,361.49 e) Overtime compensation………………………KShs. 133, 642.08 f) Unpaid house allowance……………………... Kshs. 106,920.00 g) Compensation for Public holidays worked, Kshs. 20, 769.00 h) NSSF deductions not remitted, KShs. 800.00 i) Compensation for unfair termination, KShs. 129,000.00 j) Any further entitlement and/or order that this Honourable Court may deem fit. 1. The Respondent challenged the claim by a Response to the Memorandum of Claim dated 27th January, 2025. The Respondent stated that the Appellant was employed as a General Labourer from 7th September 2021 until 15th June, 2022 at the Respondent’s road construction project site. However, it denied that the Appellant was unfairly and unlawfully dismissed. Further, his entitlement to the reliefs sought. 2. After hearing the parties on their respective cases and considering their evidence and submissions, the trial Court largely dismissed the Appellant’s case, allowing it 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 came into the employment of the Respondent on 5th January 2017, as a general labourer from January, 2020, earning a monthly salary of KShs. 10,800, until 5th June, 2022, when the Respondent summarily terminated his services. 2. He stated that on 15th June, 2022, as she was leaving work, one Mr. Harrison Wachira instructed her 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 she 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 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. 5. The Appellant argued that the termination of his employment was without justification and conformity with the procedural requirements of the Employment Act. **The Respondent’s Case before the Lower Court** 1. The Respondent called one witness, Kip Kosgei James Snow, the Respondent’s Project Administrator, to testify on its behalf before the lower Court. The witness stated that the Appellant was not employed by the Respondent on 16th August 2017, contrary to the Appellant’s allegation. Instead, he was employed from 7th September 2021 to 15th June 2022 as a General Labourer at the Respondent’s road construction site for the Jomvu Kuu–Jitoni–Rabai road in Kilifi County. 2. He stated that the Respondent’s contract for the road construction project was temporarily suspended by the Government due to a lack of funds. This compelled the Respondent to temporarily release the Appellant from her employment. Once the Government allocated funds for the project, the Appellant was to be advised to resume his duties. 3. He further stated that the Appellant was duly paid his salary up to the date of the temporary release. Further, at all material times, he was paid an all-inclusive monthly salary, which included the house allowance. 4. He further asserted that the Appellant never used to work during public holidays and weekends. Additionally, the Appellant’s NSSF statement showed remittance of the monthly deductions. **Judgment of the Lower Court** 1. The trial court identified the issues for determination as follows: whether the Claimant was employed by the Respondent; whether the Claimant was unfairly or unlawfully terminated; whether the Claimant was entitled to the reliefs sought; and what orders should be made as to costs. 2. On the date of employment, the trial court found that although the Appellant alleged that he was employed from 5th January, 2017, in his evidence under cross-examination, he gave contradictory evidence when he testified that he was employed on 16th August, 2017. Owing to this contradiction, the trial Court found his evidence unreliable and was persuaded by the Respondent's evidence, supported by a payroll, that he was first employed on 7th September 2022. 3. The trial Court further found that the Appellant’s employment was not summarily terminated by the Respondent. Further, the Appellant did not discharge his legal burden under section 47(5) of the Employment Act. As such, his claim for unfair and unlawful termination of employment was without merit. She dismissed the same. 4. The learned trial Court declined to award all the reliefs sought by the Appellant, save for the direction that a certificate of service be issued to him. **The Appeal before this Court.** 1. Dissatisfied with the whole judgment, the Appellant filed the Memorandum of Appeal dated 3rd September, 2025, on the following grounds: 2. The Learned Magistrate erred in law and fact in holding that the Appellant was not employed from 5th January 2017 to June 2022, despite the Appellant adducing an NSSF provisional Member Statement of Account confirming continuous working engagement with the Respondent since January 2017. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 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. 6. 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. 7. To anchor a claim for unfair termination on the 8th March 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 factual realities of the case, and those realities do not support a finding that termination occurred on that day. 8. 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. 9. Having found, as I have found, 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 her legal burden under Section 47[5] of the Employment Act. The trial Court did not err in finding the claim for unfair termination unproven. 10. One can advance an argument that, but it took approximately two years without him being recalled to work or paid by the Respondent. That may appear to be so. Maybe that would have been good material for a constructive dismissal claim, which the Appellant did not advance before the lower court. 11. 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. 12. Having concluded that the claim for unfair termination was rightly declined by the learned trial Magistrate, it is not difficult to conclude that the remedies for compensation for unfair termination and notice pay were rightly rejected. 13. The Appellant claimed what he termed as ´Overtime for the period 2020-08/03/ 2022, Kshs. 58, 487.52. 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. Certainly, 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].** 14. I am of the further view that the learned trial Magistrate’s rejection of the claim for compensation for 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. 15. 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. 16. 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 to 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 her or his 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 she or he 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. 1. 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. 1. 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.** **OCHARO KEBIRA** **JUDGE**