https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1935

Ngoko v Eldocraft Limited (Employment and Labour Relations Appeal E026 of 2024) [2026] KEELRC 1935 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEELRC 1935 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Eldoret Employment and Labour Relations Appeal E026 of 2024 MA Onyango, J July 2, 2026 Between Naftali Gessanda Ngoko Appellant and Eldocraft Limited Respondent (Being an appeal from the judgment and decree of Hon. B. K. Kiptoo Principal Magistrate, delivered on the 12th July, 2024, in Eldoret Chief Magistrates Court, CMELRC Case No. E040 of 2022, between NAFTALI GESSANDA NGOKO vs ELDOCRAFT LIMITED) Judgment 1.The Appellant herein was the Claimant in Eldoret CMELRC No. E040 of 2022 wherein he sued the Respondent vide a Memorandum of Claim dated 1st April 2022 seeking compensation for alleged unfair termination of his employment and for payment of his terminal dues. 2.Upon hearing the parties, the trial court delivered its judgment on 12th July 2024, dismissing the entire claim. 3.The Appellant being dissatisfied with the said judgement instituted the instant appeal vide the Memorandum of Appeal dated 31st July, 2024 on the following grounds of appeal:a.That the Learned Trial Magistrate erred in law and fact in coming up with a judgment that was not based on the weight of the facts adduced at the trial and the salient provisions of the law.b.That the learned Trial Magistrate erred in law and fact in concluding that the Appellant's employment was fairly terminated yet it was his holding that the termination procedure was not followed to the latter.c.That the Trial Magistrate erred in fact and in law when he concerned himself with extraneous issues and concluded that the Appellant’s employment was fairly terminated yet the Appellant's case was that he was unfairly dismissed and the Respondent's evidence was that the Appellant was not dismissed from work but rather deserted his pace of work.d.That the Learned Trial Magistrate erred in law and in fact in arriving at a judgment that was not based and founded on the evidence adduced in favour of the respective parties herein.e.That the Learned Trial Magistrate erred in law and in fact in holding that the Appellant was not entitled to any of the reliefs he had sought.f.That the Leamed Trial Magistrate erred in law and in fact in arriving at a finding that was not raised in the pleadings.g.That failing to acknowledge the significance of the evidence adduced by the Respondent's pleadings and witnesses where they alleged that the Appellant herein deserted duty.h.That the Leamed Trial Magistrate erred in law and in fact in failing to recognize that the Respondent herein had failed to establish their claim on a balance of probability.i.That the Learned Trial Magistrate erred in law and in fact in firstly accepting unproven facts and then misapplying the law using these set of facts and this arriving at an erroneous judgment.j.That the Learned Trial Magistrate erred in not sufficiently taking into account all the evidence presented before him in totality and in particular the evidence presented on behalf of the appellant.k.That the Learned Trial Magistrate misapprehended the evidence on record to and the pleadings relied upon to such a material degree that it resulted in his arriving at a wrong conclusion. 4.Consequently, the Appellant prayed for this Appeal be allowed and the judgment dismissing the Appellant’s claim be set aside and the Honourable Court be pleased to order that: -a.This Appeal is allowed.b.The judgment delivered on 12.7.2024 in ELDORET CHIEF MAGISTRATE'S COURT(ELRC)CASE NO. E040 OF 2022 BETWEEN NAFATALI GESSANDA NGOKO VERSUS ELDOCRAFT LIMITED) be set aside and be substituted with an order that the Claimant's case is allowed with costs.c.Costs of this Appeal be awarded to the Appellant.d.Any other and further relief that this Honourable Court shall deem just and expedient to grant. Analysis 5.This being a first appeal, this Court has the duty to analyze and re-examine the evidence adduced in the lower Court and reach its own conclusion but to bear in mind that it neither saw nor heard the witnesses testify and make due allowance for that as was held in the case of Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR. 6.Vide his Memorandum of Claim dated 1st April 2022, the Claimant (now the Appellant) averred that at all times material to the suit, he was an employee of the Respondent, having been engaged orally as a cleaner with effect from 1st June, 2010. That as at the time of termination of his employment he was earning a basic monthly salary of Kshs. 10,000. 7.It was the Appellant’s case that he loyally, diligently and with full dedication served the Respondent until 26th November, 2021, when the Respondent, through its Director Sanjiv Ugural, wrongfully terminated his employment and neglected and/or refused to pay his terminal dues. 8.The Appellant averred that the termination was illegal, unfair and/or unlawful and offended the provisions of sections 41(1) and (2), 43, 44(4) and 45(2) of the Employment Act. The Appellant further averred that the Respondent violated his rights to fair labour practice as enshrined under Article 41(1) of the Constitution as he was not given an opportunity to defend himself against any acts of wrongdoing. 9.The Appellant particularized his terminal dues as follows: -a.One month pay in lieu of notice payable on the basis of the Claimant's gross pay under Section 49(1a) of the Employment Act Legal Notice No.2 of 2018 12522.70+(15%x12522.70) Kshs. 14,401/=b.Leave dues for the years 2011 upto 2021 payable on the basis of Claimant's basic pay (12,522.70/=x10) Kshs. 125,227/=c.Compensation for unfair termination Under Section49(1,c) of the Employment Act(12,522.70/=x12 months) Kshs. 150,272.40/=d.House allowance (15%x12,522.70/=x125 months) Kshs. 234,800.63/=e.Overtime 8am-7pm=12 hours 12 hours x 7 days=84 hours 84 hours-70 hours=14 hours OT weekly 12,522.70/=(basic pay) 70 hours weekly x 4 weeks =44.72x1.5 =67.09/=OT per hour OT=14 hours x 4 weeks x 67.09/=x125 months Kshs. 469,630/=f.Rest days (4 days per months x125 months x 12,522.70/=) divided by 30 Kshs.208,711.67/=g.Under payment on basis of basic pay (12,522.70/=-10,000x125 months) Kshs. 315,337.50/=TOTAL Kshs.1,518,380.20/= 10.The Appellant sought declarations that: -a.The Respondent terminated the Claimant’s employment without following the laid down procedures in the Employment Act, 2007.b.The Respondent terminated the Claimant’s services without proving the reason for termination was valid or explaining to the claimant in a language he understands of the reason for termination or hearing and considering any representations of the Claimant in opposition to the reason(s) for termination as laid out in Employment Act, 2007.c.The Respondent failed to pay the Claimant’s salary in lieu of leave contrary to Section 28(1) of the Employment Act, 2007.d.The Respondent failed to give a Termination Notice to the Claimant as provided for under Section 35 of the Employment Act 2007.e.The Respondent did not act in Accordance with justice, equity and fair labour procedures and practices in terminating the Claimant’s employment contrary to Section 45 of the Employment Act, 2007 and Article 41(1) of the Constitution of Kenya, 2010.f.No Certificate of Service was issued to the claimant contrary to Section 51 of the Employment Act, 2007. 11.In response to the Memorandum of Claim, the Respondent filed a Reply to Claim dated 12th April 2022 in which it denied that the Appellant’s employment was terminated. It was the Respondent’s averment that the Appellant reported for duty on 26th November, 2021 as usual but at around noon disappeared without notice and or permission and failed to return to work despite numerous reminders sent by the company director and counsel for the Respondent. 12.The Respondent further averred that on 26th November, 2021 the Appellant was found with the Respondent’s merchandise which he was suspected to have stolen and the matter was reported to the police. 13.The Respondent denied all other averments in the Memorandum of Claim and urged the court to dismiss the Claim against it with costs. The Evidence adduced 14.At trial, the Appellant testified as CW1 and adopted his witness statement recorded on 1st April, 2022 as his evidence in chief. He also relied on the documents he filed in court in support of his claim, which included a copy of his national identity card, NSSF Statement, demand letter from his advocates to the Respondent and a reply thereto by the Respondent’s counsel. 15.The Appellant testified on 28th September, 2022 that he was employed by the Respondent orally, never took annual leave nor was he paid in cash in lieu of leave, he worked from 8 am to 7 pm daily for 7 days a week and that he was sacked without notice. 16.Upon cross-examination, the Appellant stated that he was employed as a cleaner from June, 2010 and was sacked in October, 2021 by the Respondent’s Director. He stated that he reported to work on 26th November, 2021 and proceeded with cleaning. 17.He stated that he was never issued with a notice to show cause and never received a letter from the Respondent’s advocates. 18.In re-examination the Appellant stated that he was never arrested on a criminal case. 19.The Respondent’s witness RW1, Sanjiv Gujral testified on 15th November, 2023. He stated that he was a director of the Respondent. he adopted his witness statement dated 3rd October, 2022 as his evidence in chief. He also adopted the Respondent’s documents filed in court as part of his evidence. 20.He testified that the Appellant was employed as a general cleaner and also helped in loading. That the Appellant worked from 8 am to 1 pm then from 2 to 5 pm, and half day on Saturday. 21.RW1 testified that on 26th November, 2021 he was on duty and found the Appellant in possession of iron sheets while packing. That the Appellant did not have an explanation. That the matter was reported vide OB 105/1/12/21. That the Appellant disappeared and did not return. That on 30th November, 2021 the Respondent’s advocate was instructed to issue a notice to show cause but the Appellant never responded. That he could not be reached. That the Appellant was never sacked but absconded. He further testified that the Appellant used to take his leave. 22.On cross examination RW1 testified that the Appellant was found to have stolen on 26th November, 2021 and the matter was reported to the police the same date. RW1 stated that he was not the one who reported. 23.He stated that the notice to show cause was never served. That the OB was issued on 1st December, 2021 but the notice to show cause is dated 30th November, 2021. That there was an element of backdating. He stated that he did not invite the Appellant for a disciplinary hearing. 24.RW1 stated that the Appellant was paid Kshs. 11,500 and that he did not produce any pay slip. He further stated that the Appellant started working in 2013 but did not have any documents to prove that the Appellant started working in 2013 and not 2010. He further stated that he did not produce evidence to prove the working hours of the Appellant. 25.Upon hearing the parties, the trial court delivered its judgment on 12th July, 2024, dismissing the claim with no order as to costs. Aggrieved by the dismissal of his case, the Appellant filed the instant judgment. The Appeal 26.The appeal was disposed of by way of written submissions. Both parties filed their submissions. The Appellant’s submissions are dated 12th May 2026 while the Respondent’s submissions are dated 28th May 2026. Appellant’s submissions 27.In his submissions, the Appellant adopted the submissions dated 8th December, 2023 made to the trial court at pages 33 to 40 of the Record of Appeal, in which he had submitted on the evidence adduced under oath, documentary evidence, whether the Respondent had proved its case, procedural fairness, reasons for dismissal, and whether the Appellant was underpaid. 28.The Appellant further submitted that it is not disputed that the Appellant was not subjected to disciplinary process and was not issued with a notice to show cause as the one issued by the Respondent’s advocates was not served as confirmed by RW1 who also stated that the same was backdated. Relying on the decision in Walter Ogal Anuro v Teachers Service Commission the Appellant submitted that at the trial court the Appellant had demonstrated that there was no justification for his termination. 29.On the Respondent’s averment that the Appellant deserted work it is submitted that there is no evidence that the Respondent took the necessary steps as required by law, to subject the Appellant to disciplinary process. 30.It is submitted that RW1 admitted that the Respondent had the Appellant’s records which included his phone number, contacts of his referees and his home address but never took any steps to contact the Appellant. 31.Relying on the decision in Mariita v Leading Locks & Access System [2022] KEELRC 1194 (KLR) Appellant submitted that the Respondent had failed to prove compliance with the settled legal principles governing cases of alleged absconding of duty by an employee. It is submitted that the learned trial court therefore fell in error in holding that the Respondent had substantive justification for bringing the Appellant’s employment to an end, notwithstanding the Respondent’s own evidence that the Appellant was not dismissed. Respondent’s Submissions 32.For the Respondent it is submitted that the learned trial court properly evaluated the evidence on record and correctly concluded that the Appellant had failed to establish a case warranting the remedies sought. 33.It is submitted the dispute revolved around the circumstances under which the employment of the Appellant came to an end. That the evidence adduced by the Respondent was that on 26th November, 2021 the Appellant was found in possession of iron sheets under suspicious circumstances and the matter was reported to the police. That the Appellant disappeared from work and never returned. That attempts to require the Appellant to explain himself failed as he could not be reached. That the Appellant did not adduce evidence that he reported back to work after the incident. 34.It is submitted that the trial court properly found that the allegations against the Appellant were serious in nature and constituted a valid ground which a reasonable employer could not ignore. That the conclusion of the court that there was substantive justification for the termination of the Appellant’s employment was proper. 35.The Respondent submitted that the averments that the trial court took irrelevant matters into account are unfounded as the issue of desertion was specifically pleaded and the Respondent’s witness testified on the same. That the finding of desertion was directly connected to the pleadings and evidence before the court and cannot be said to have been extraneous. 36.The Respondent submitted that the learned trial magistrate having found that the Respondent had substantive justification to terminate the employment relationship, the remedies sought by the Appellant could not issue. That the dismissal of the claim was therefore justified. Determination 37.Having carefully considered the Record of Appeal, the rival submissions on the appeal and the applicable law, the issues that arise for determination are: -i.Whether or not the Appellant absconded duty;ii.Whether the trial court erred in holding that the Appellant’s employment had justifiably came to an end;iii.What remedies should issue, if any. Whether or not the Appellant absconded duty 38.Absconding duty is a ground for summary dismissal under section 44(4)(a) of the Employment Act. 39.Section 41 of the Act however provides that before an employer terminates employment on grounds of gross misconduct under section 44(3) and (4) of the Act, the employer must hear the employee in the manner set out in the said section. 40.The wording of section 44(4)(a) is material. It provides that absenteeism without permission or other lawful course is a ground for summary dismissal. This means that an employer must take steps to confirm that the absent employee does not have a valid reason for the absence. This is the essence of the decision in Mariita v Leading Locks & Access System [2022] KEELRC 1194 (KLR) where the court stated:“Desertion of duty is a grave administrative offence which if proved would render an employee liable to summary dismissal as held in the case of Ronald Nyambu Daudi v Tornado Carriers Limited Cause No. 236 of 2016. It is however not enough for an employer to simply state that an employee has deserted duty. The law is that an employer alleging desertion against an employee and putting them on notice that termination of employment on this ground is under consideration must show efforts made towards reaching out to the employee and making it clear that termination is being considered on that ground” 41.In the instant case, the Respondent’s position as stated in the Reply to the Claim is that the Appellant was found with the Respondent’s merchandise which he was suspected to have stolen and a report was made at Eldoret Police Station vide OB 105/1/12/2021. 42.The Appellant’s case is however that he was called by Mr. Sanjiv Gujral who orally terminated his employment on grounds that he had committed acts alleged to constitute gross misconduct. 43.In the witness statement of Gujral Sanjiv, RW1, he states that the Appellant worked well from September, 2013 when he was employed until 26th November, 2021 when he was found in possession of the company merchandise being some iron sheet ridges which he was suspected to have stolen and as such a formal complaint was made at Eldoret Police Station vide OB 105/1/12/2021. 44.Several issues do not add up. First, where was the Appellant found with the iron sheet ridges and what made the Respondent suspect that the Appellant intended to steal them? How many ridges were they? Where specifically were they found? What transpired from the time the ridges were found to the time the Appellant is alleged to have absconded duty? Did he steal or was he suspected of intention to steal the ridges? 45.Further, why was the report made on 1/12/2021 and not on 26th November, the exact date when the incident is alleged to have occurred? Why was the report made when the Appellant had purportedly been issued with a show cause letter? What exactly did the Respondent report to the police if it only suspected the Appellant of stealing? Why was the show cause letter dated 30th November, 2021? RW1 having stated that the show cause letter “contained an element of backdating, exactly when was it issued? 46.The other question is why was the show cause letter was sent by an advocate and not the Respondent? 47.RW1 having admitted that the show cause letter was in actual fact never delivered to the Appellant what action did the Respondent take to reach the Appellant whom RW1 alleged was unreachable? Why didn’t the Respondent use the contacts which RW1 stated the Respondent had, to reach the Appellant? 48.In the Notice to show cause letter written by the Respondent’s counsel, Nancy C. Koskei of Chelang’at Koskei & Co. Advocates, it is states:Chelang’at Koskei & Company AdvocatesOur ref NN/01/2021YOUR Ref: TB 30th November, 2021Naftali ngokoId No. 11701828Phone No. 0716457362Dear Mr. NgokoRE: Notice To Show Cause On Absence Form Duty And Gross MisconductThe above matter refers.We write on behalf of our client Eldocraft Limited Based In Eldoret And Managed By One Of Its Director Mr. Sanjiv Gujral.It is to bring to your attention that the management has taken notice from our attendance record that you have not reported on duty from the noon of 26th November 2021 to date without authorization.In addition, it was reported to the management that you committed a crime while on duty that you were found red handed and the matter was reported to Eldoret Police Station (OB 105/1/12/2021)Take Notice that your above action amount to gross misconduct and go against your employment contract and the Company’s policy.You are hereby requested within 72 hours from the time of receipt of this notice to appear in person to submit a written explanation of your conduct and give a reason why disciplinary action should not be taken against you .Be advised accordingly.AdvocatesignedNancy C.KoskeiChelang’at Koskei & Co. Advocates 49.The letter dated 30th November, 2021 which alleges a report had been made to the police refers to an OB of 1st December, 2021, definitely an indication that the letter was in actual fact written on or after 1st December, 2021 and was deliberately backdated. Why would the Respondent want to backdate a notice to show cause? 50.With all these questions, the only logical conclusion is that the Respondent’s narration of what transpired from 26th November, 2021 to 1st December, 2021 is fabricated. This therefore leaves the court with only the narration by the Appellant to the effect that he was called by Gujral Sanjiv, RW1, who orally terminated his employment on 26th November, 2021, accusing him of having committed or attempted to commit an offence, whose nature is not clear from the evidence on record. 51.This further leads to the conclusion that the Appellant did not abscond duty but was dismissed verbally without adherence to the procedure set out in section 41 of the Act or proof of justifiable reason for dismissal as provided in section 43 of the Act. The dismissal was therefore unfair in terms of section 45(2) of the Act. 52.The court thus finds that the trial court was in error in finding that there was a substantive justification to bring to an end the Appellants employment. The court further fell in error in holding that the Respondent afforded the Appellant a reasonable opportunity to be heard when in fact the evidence on record discloses otherwise. Remedies 53.Having found the termination both substantively and procedurally unfair, what remedies is the Appellant entitled to? I will now consider his prayers. 54.The Appellant prayed for one month’s salary in lieu of notice. He is entitled to the same under section 49(1)(b) of the Act as read with section 35 and 36 of the Act. 55.The Respondent stated that the Appellant’s salary was Kshs. 11,500 11,500 per month. The Appellant on the other hand pleaded and testified that he was paid Kshs. 10,000 per month. According to the General Wages Order for 2018 applicable at the relevant time, the minimum wage for a cleaner was Kshs. 12,522.70 plus 15% house allowance being Kshs. 14,401.20. I award the Appellant the same as pay in lieu of notice. 56.The Appellant prayed for leave dues from 2011 to2021 at Kshs. 125,227. The section 10(3) of the Act provides:(3)The statement required under this section shall also contain particulars, as at a specified date not more than seven days before the statement, or the instalment containing them, is given of—(a)any terms and conditions relating to any of the following—(i)entitlement to annual leave, including public holidays, and holiday pay (the particulars given being sufficient to enable the employee’s entitlement, including any entitlement to accrued holiday pay on the termination of employment, to be precisely calculated) 57.Section further 10(7) provides(7)If in any legal proceedings an employer fails to produce a written contract or the written particulars prescribed in subsection (1) the burden of proving or disproving an alleged term of employment stipulated in the contract shall be on the employer. 58.It was thus the burden of the Respondent to prove that the Appellant took leave, which it did not. However, cognizant of section 10(6) which provides that “the employer shall keep the written particulars prescribed in subsection (1) for a period of five years after the termination of employment” the court will award the Appellant only 5 years leave at the statutory minimum of 21 days for 5 years. Pay in lieu of leave is based on basic pay divided by working days in a month which average 26 days in a month. The Appellant is thus awarded (12,522.70/26x 21 x 5) = Kshs. 50,572.40. 59.The Appellant prayed for compensation for unfair termination under section 49(1)(c) of the Act. He worked for the Respondent for a period of about 9 years, from 2013 to 2021 based on the NSSF statement that he filed in court, and the evidence of the Respondent’s witness. Having regard to the length of service, the circumstances under which he lost his job, the conduct of the Respondent and all other relevant factors under section 49(4) of the Act, I award the Appellant compensation equivalent to 9 months’ salary being (14,401.20x9) being Kshs. 129,610.80. 60.The Appellant further prayed for house allowance. As already stated in paragraph 58 above, I will only award the same for 5 years at Kshs. 1,878.40 per month being 1878.40x60. I award the Appellant Kshs. 112,704. 61.The Appellant prayed for overtime. It is my view that he did not prove that he worked overtime. RW1 stated that the Appellant worked from 8 am to 1 pm then from 2pm to 5 pm. That he also worked for half day on Saturday. Maximum working hours as per rule 5 of the Regulation of Wages (General) Order is 52 hours per week. The Appellant did not prove that he worked more than 52 hours per week to entitle him to payment of ovrtime. This prayer is accordingly declined. 62.The prayer for rest days is also decline for the same reasons as the prayer for overtime as the Appellant did not prove that he worked on Sundays. 63.On the prayer for underpayments the Appellant did not demonstrate how he arrived at the figure claimed. He did not state what he was earning for the entire period he worked. Going by the evidence on record, the court can only award the same based on the statutory minimum wages of 2018 which was effective from 1st May, 2018. The basic wage having been Kshs. 12,522.70 while the Appellant was paid Kshs. 11,500 as stated by the Respondent, the underpayments for 42 months from May 2018 to October, 2021 is Kshs. 42,953.40 which I award the Appellant. 64.In conclusion, the Court makes the following orders:i.The appeal is hereby allowedii.The judgment of the trial court delivered on 12th July, 2024 in Eldoret CMELRC No. E040 of 2022 dismissing the Appellant’s Claim is hereby set aside.iii.A declaration is hereby issued that the Appellant’s services were unlawfully and unfairly terminated on 26th November, 2021.iv.The Appellant is awarded one (1) month's salary in lieu of notice being Kshs. 14,401.20.v.The Appellant is awarded pay in lieu of annual leave earned in the sum of Kshs. 50,572.40vi.The Appellant is awarded compensation for unfair termination equivalent to nine (9) months' salary being Kshs. 129,610.80.vii.The Appellant is awarded house allowance of Kshs. 112,704.viii.The Appellant is awarded underpayments of Kshs. 42,953.40.ix.The total award shall attract interest at court rates from the date of the judgment in the Trial Court until payment in full.x.The Appellant shall have the costs of the suit before the trial court and the costs of this appeal. 107.Orders accordingly. DATED, DELIVERED AND SIGNED ON THIS 2ND DAY OF JULY 2026.M. ONYANGOJUDGE