https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2112

Obiero v Dwa Estate Ltd (Employment and Labour Relations Appeal E017 of 2024) [2026] KEELRC 2112 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEELRC 2112 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Machakos Employment and Labour Relations Appeal E017 of 2024 JW Keli, J July 17, 2026 Between Millicent Achieng Obiero Claimant and Dwa Estate Limited Respondent (Being an Appeal from the Judgment and Decree of the Hon. B. Ireri (SPM) delivered on 26th August 2024 in Makindu MCELRC No. E001 of 2021) Judgment 1.The Appellant herein, being dissatisfied with the Judgment and Decree of the Hon. B. Ireri (SPM) delivered on 26th August 2024 in Makindu MCELRC No. E001 of 2021 between the parties filed a Memorandum of Appeal dated the 25th September 2024 seeking the following orders: -a.The appeal is allowed with costs.b.The Judgement by Honourable B. Ireri in Makindu MCELRC Case No. E001 of 2021 delivered on 26th August 2024 on general damages be set aside, and the Court herein be pleased to allow the claimant’s claim in the lower court. Grounds Of The Appeal 2.The Honourable Magistrate erred in law and fact in dismissing the claimant/appellant's claim against the weight of the evidence adduced. 3.The Honourable Magistrate erred in holding the Claimant did not prove her case. 4.The Honourable Magistrate erred in law and fact in failing to consider the evidence adduced by the Claimant and in holding that the claimant had absconded duty. 5.The Honourable Magistrate erred in law and fact in failing to consider the Claimant's submissions. 6.The Honourable Magistrate erred in law and fact in finding the Appellant was not wrongfully terminated despite the clear evidence on record to the effect due process was not followed before terminating the Claimant. 7.The Honourable Magistrate erred in failing to award the Claimant terminal benefits. 8.The Honourable Magistrate erred in law and fact in failing to assess the award the appellant would have been entitled to had she proved her case. Background To The Appeal 9.The Claimant/Appellant filed a claim against the Respondent vide a memorandum of claim dated the 10th of September 2021 seeking the following orders: -a.A declaration that the Claimant’s services were unprocedurally, unlawfully and unfairly terminated, and in the circumstances the Claimant is entitled to compensation for her terminal dues.b.The sum of Kshs. 432, 512.80 as set out hereinabove.c.Costs of this suit and interest at court rates from the date of filing the suit until payment in full.d.Any other further relief that the Honourable Court deems just and fit to grant.(Pages 3-5 of Appellant’s ROA dated 8th September 2025) 10.Alongside the claim, the Claimant/Appellant filed her list of witnesses dated 10th September 2021; witness statement of even date; and list of documents of even date with the bundle attached (pages 7-35 of ROA). The Claimant later filed a further list of documents dated 29th May 2023 with the bundle of documents attached (pages 114-117 of ROA). 11.The claim was opposed by the Respondent who entered appearance and filed a memorandum of response dated 15th December 2021 (pages 36-39 of ROA). They also filed a list of witnesses dated 27th April 2023; witness statement of Joanne TabuKE of even date; witness statement of Grace Syombua of even date; and list of documents of even date with the bundle attached (pages 49-109 of ROA). Later, the Respondent filed a further list of documents dated 23rd May 2023 with the bundle of documents attached (pages 110-113 of ROA). 12.In challenge to the response, the Claimant/Appellant filed a reply dated 4th February 2022 (pages 43-44 of the ROA). 13.The Claimant/Appellant’s case was heard on 29th May 2023 with the Claimant testifying. She adopted her filed witness statement as her evidence in chief, and produced her documents as exhibits. She was cross-examined by counsel for the Respondent, Mr. Mbeche (pages 119-122 of ROA). 14.The Respondent’s case was heard on 7th August 2023, 9th October 2023 and 19th February 2024 with the Respondent calling three (3) witnesses namely Joan Kabuke as DW1; Grace Syombua as DW2; and George Omondi Ojuet as DW3 to testify on their behalf. They each adopted their filed witness statements as their evidence in chief; produced the Respondent’s documents as exhibits; and were cross-examined by counsel for the Claimant/Appellant Mr. Mutuku (pages 122-131 of ROA). 15.The court delivered its Judgment on 26th August 2024 dismissing the Claimant/Appellant’s suit, with costs (judgment at pages 164-178 of ROA). Determination 16.The appeal was canvassed through written submissions. Both parties filed. Issues For Determination 17.In her submissions dated 13th March 2026, the Appellant identified the following issues for determination:-i.Whether the Learned Magistrate erred in law and in fact in dismissing the Claimant/ appellant's claim against the weight of the evidence adduced on continuous employment.ii.Whether the Appellant was unfairly, unlawfully and unprocedural terminated.iii.Whether the Appellant was entitled to the remedies sought. 18.The Respondent filed their submissions dated 4th June 2026 wherein they submitted on the grounds of appeal generally. 19.In response to the Respondent’ submissions, the Appellant filed further submissions dated 29th June 2026. 20.The court discerned the issues for determination in the appeal to be –a.Whether the trial court erred in fact and law in finding no proof of unfair termination.b.Whether the appellant was entitled to the relief sought in the claim. Whether the trial court erred in fact and law in finding no proof of unfair termination 21.The grounds of appeal were as follows-a.The Honourable Magistrate erred in law and fact in dismissing the claimant/appellant's claim against the weight of the evidence adduced.b.The Honourable Magistrate erred in holding the Claimant did not prove her case.c.The Honourable Magistrate erred in law and fact in failing to consider the evidence adduced by the Claimant and in holding that the claimant had absconded duty.d.The Honourable Magistrate erred in law and fact in failing to consider the Claimant's submissions.e.The Honourable Magistrate erred in law and fact in finding the Appellant was not wrongfully terminated despite the clear evidence on record to the effect due process was not followed before terminating the Claimant. The Appellant’s Submissions 22.In support of this explanation, the Appellant produced treatment notes confirming that she had been receiving treatment at Homa Bay County Teaching and Referral Hospital, which documents appear in the (Record of Appeal pages 14, 17 -22.) The Appellant therefore maintained that her absence from work following the lapse of her compassionate leave was not deliberate but was occasioned by illness. The claimant testified that She reported to the respondents on 13.2.2021,that she had indicated to a madam Rhoda that she was sick and she was therefore sent to a Mr.Dan so that he could write her a compassionate and that she indeed gave Mr.Dan her hospital documents. The appellant, moreover testified that, the following day, Mr.Dan said he could not write the compassionate for her and therefore madam Rhoda told her to come the next day and when she went, she was given the letter of termination dated the 15.02.2021.The appellant before the trial court was categorical that at the time she was given the letter of termination, she had not been given a chance to explain herself, she had not been given a notice to show cause and she had not been invited for a disciplinary hearing and neither had she participated in a disciplinary hearing The Respondent, on the other hand, contended that the Appellant had absconded after failing to report back to work on 19th January 2021 following the expiry of her compassionate leave. The Respondent alleged that attempts were made to trace the Appellant but those attempts were unsuccessful, prompting the Respondent to conclude that the Appellant had deserted duty and consequently summarily dismissed her. DW-I testified that on the 15th February 2021, the claimant was declared a deserter, that the claimant was summarily dismissed without notice and a desertion letter was sent to her address, DW-I did not however produce a postage receipt, as such that averment does not hold water. At cross -examination DW-1 testified that the appellant was summoned which aspect only arose at cross -examination. At cross -examination DW-1 went on to testify that on the 18/2/2016 they had a meeting with the claimant, it's worth noting this was after the claimant had already been terminated DW-2 on the other part testified that the claimant reported back on the 17th February 2021, that the letter of termination was handed to her on 17th February 2021 and she was handled by the claimant .what is evident is that when the claimant reported back to work its when she was given the letter of termination and as at that time ,she had not be taken through the due process. In a nutshell, the evidence that emerged during the trial did not support the Respondent's assertion. Both DW1 and DW2, who testified on behalf of the Respondent, admitted during cross-examination that the Appellant had in fact informed them that she was unwell. In particular, DW1 acknowledged that when the Respondent contacted the Appellant, she explained that she was sick, although the Respondent appeared not to accept that explanation. Despite receiving this explanation, the Respondent did not take any steps to verify the Appellant's illness nor did it request her to provide medical documentation upon her return to work. Similarly, DW2 testified that attempts made to contact the Appellant through her father and brother, the claimant did indeed confirm that her brother and father were indeed called by the employer but they did not tell her that her employer was looking for her, that they only told her employer had been looking for her, after she had already been terminated. If the Respondent believed that the Appellant had failed to resume duty without justification, the law required the Respondent to subject the Appellant to the statutory disciplinary process before terminating her employment. It was further submitted that employees accused of absconding duty are still entitled to the procedural safeguards provided under the law. The Respondent's conduct was therefore in clear violation of Section 41 of the Employment Act, 2007, which obligates an employer to accord an employee a fair hearing before termination of employment. The provision requires an employer to inform the employee of the allegations against them, allow the employee an opportunity to respond, and consider the employee's explanation before making a decision. The centrality of this procedural safeguard was emphasized in Walter Ogal Anuro V Teachers Service Commission, where the court held that for a termination to pass the fairness test the employer must demonstrate both substantive justification and procedural fairness, and that failure to follow the procedure set out under Section 41 renders a termination unfair. In the present case, the Respondent did not issue the Appellant with a Notice to Show Cause, did not conduct any investigations into the alleged absenteeism, and did not convene any disciplinary hearing at which the Appellant could defend herself in the presence of a fellow employee or representative of her choice as required by law before making the decision to terminate her. Indeed, in the modern era where communication through SMS, WhatsApp messaging, or email is widely accepted, nothing could have stopped the Respondent from issuing even a simple Notice to Show Cause through those channels if indeed the Appellant had failed to resume duty. It was therefore submitted that the Respondent did not demonstrate that it acted fairly, justly and equitably in its dealings with the Appellant as required under Section 45(4) and (5) of the Employment Act. Further, Section 43 of the Employment Act places the burden upon the employer to prove the reason for termination. In the present case, the Respondent failed to demonstrate that the Appellant had indeed deserted duty, particularly in light of the uncontroverted evidence that the Appellant had explained that she had been unwell. Additionally, Section 45 of the Employment Act provides that termination of employment is unfair where the employer fails to prove that the reason for termination was valid and fair and that the termination was carried out in accordance with fair procedure. The Court of Appeal reiterated this statutory position in Kenfreight (EA) Limited V Benson K. Nguti, where it held that once an employee establishes the fact of termination, the burden shifts to the employer to justify both the reason for the termination and the procedure followed. In the present case, the Appellant established that her employment had been terminated. The evidential burden therefore shifted to the Respondent to justify both the reason and the procedure leading to the termination. a However, the Respondent failed to produce any evidence demonstrating compliance with the disciplinary procedures prescribed under the Employment Act. There was no evidence of a Notice to Show Cause, no record of investigations, no minutes of disciplinary hearing and no documentation demonstrating that the Appellant had been given an opportunity to explain herself before she was given the termination letter dated the 15th February 2021 Even assuming that the Respondent genuinely believed that the Appellant had absconded duty, the law still required the Respondent to subject the Appellant to a disciplinary process before making the decision to terminate her employment. This position was affirmed in Judith Atieno Owuor V Sameer Agriculture And Livestock Limited, in which matter the court held "Further, even if she had absconded, she is by law entitled to a fair disciplinary process as set out in Section 41 of the Employment Act, 2007. No evidence was availed to the Court to support their having been a disciplinary process or notice issued prior to the termination. It is the duty of the Respondent to show this Court it did accord the Claimant a fair hearing prior to her termination. In the case of Felistas Acheha Ikatwa v Charles Peter Otieno (2018) eKLR it was held: "The law is therefore well settled that an employer claiming that an employee has deserted duty must demonstrate efforts made towards getting the employee to resume duty. At the very least, the employer is expected to issue a notice to the deserting employee that termination of employment on the ground of desertion is being considered." Further, once the Appellant reported back to work and explained that she had been sick, the Respondent ought to have verified that explanation and, if dissatisfied, subjected the Appellant to a disciplinary process as required by law. The termination letter was issued to the claimant, when she reported back to work after Mr. Dan refused to give her a compassionate, she had already reported back to work, it cannot be said that she had no intention of going back to work. We submit that the learned trial magistrate misdirected himself by failing to properly interrogate whether the Respondent had discharged its statutory burden under Sections 43, 45 and 47(5) of the Employment Act. The claimant having demonstrated that she was indeed terminated, the trial court erred in placing the evidential burden on the claimant to prove the reason for termination and if due process was followed before the claimant was terminated, whereas that burden lie squarely on the Respondent. In the circumstances, the Respondent failed to establish a valid reason for the Appellant's termination and equally failed to comply with the mandatory procedural safeguards set out under Section 41 of the Employment Act. The Respondent additionally failed to discharge its statutory burden under Sections 43, 45 and 47(5) of the Employment Act, rendering the termination both substantively and procedurally unfair. The Appellant served the Respondent faithfully and diligently from 15th April 2013 until 15th February 2021, a period spanning over seven years. It is common ground between the parties that the Appellant had been granted compassionate leave from 13th January 2021 to 19th January 2021. Upon the expiry of the said leave, the Appellant was unable to immediately resume duty on 19th January 2021 due to illness. The Appellant testified that she was undergoing treatment and did not have her supervisor's phone number. She only managed to report back to work sometime in February 2021 after her health improved. The Respondent’s Submissions 23.It is the Appellant's contention that the Respondent terminated her employment unfairly. The Respondent posits that the Appellant deserted duty, having absented herself from the workplace without sufficient reason. According to facts on record, the Appellant sought and was granted compassionate leave set to return on 18th January 2021. However, she did not report back on said date. From the evidence presented during trial, the Respondent made efforts to trace the Appellant's whereabouts. The Appellant was called on 26th January 2021 by DW2 when she stated that she was sick and was advised to get into contact with her supervisor and seek medical attention at the Respondent's medical facilities. The Respondent further reached out to her next of kin, that is, her father and her brother vide their telephones (0714673592 and 0725681617 respectively) to inform them of the Respondent's concern about her whereabouts and wellbeing. As per DW2, when she contacted the Appellant's father he denied knowing who she was but later called back and admitted that indeed she was his daughter and that she was in Kibwezi at the moment This position was confirmed by the Claimant's brother, Mr. Erick Onyango, on 12th February 2021(see pages 101 and 102 of the Record of Appeal). DW1 also corroborated this evidence. It is clear that even after being contacted by the Respondent's officers and efforts made to reach out to the Appellant, she did not avail herself to work. On this basis the Respondent found the Appellant to have deserted duty. On 17th February 2021 thereafter, the Appellant reported to the Respondent's premises when she was issued with a letter detailing its decision to declare her to have deserted her duties. She then was granted a chance to bring back medical documents showing that she was unwell. Thereafter, on the following day, 18th February 2021 the Appellant went back to the Respondent's premises and sought the intervention on the shop floor union officials to challenge the decision to declare her a deserter. However, even in the presence of the shop floor union officials she could not produce any medical documents or a sick sheet for that matter and the Respondent had no choice but to stand by its decision. DW3 who testified during the trial attested to this and further stated that the Appellant could not be assisted having no supporting documents to explain her absence. The Respondent submits that even after being granted an opportunity to explain her whereabouts, the Appellant still could not do so. Instead she was acrimonious to the point of stating that the Respondent would know who she was at said meeting as stated by DW3 (see page 130 of the Record of Appeal). In the case of Andrew Ogola Makomere v Agro Industrial Tools Limited [2017] KEELRC 1996 (KLR) the ELRC stated, "In my view, the law with regard to an employee receiving treatment and being absent from work due to illness and in need of treatment is most generous. Such time is allowed to be absent for the employee to receive treatment. The only requirement of the employee is to inform the employer within a reasonable time of such illness and upon resumption of duty to submit a Medical Certificate from a medical practitioner. The employee is allowed to be away for up to 30 days subject to letting the employer know the circumstances of the illness or sickness and such information can be communicated through a third party."(Emphasis added) The Respondent submits that the medical notes submitted by the Appellant were only availed during trial as can be surmised from the receiving stamp of the Respondent dated 22nd October 2021 appearing at page 13 of the Record of Appeal. It is equally worthy to note that no mention of the date when the Appellant began treatment is shared along with any details as how long the Appellant is to be accorded time to recover as is the case with a typical sick sheet. As such, the Respondent further submits that the documents themselves are not in the manner or fashion as envisaged under the Employment Act. Further, the said treatment notes were not availed upon resumption of duty as required by the law but rather at the point of filing suit. Additionally as required by Section 34 of the Employment Act, the Respondent had a duty to ensure the Appellant received adequate medical attention however this was defeated by the Appellant who chose not to inform nor notify of the facility at which she was receiving treatment the former even after being contacted. The Appellant cannot be therefore be heard to say that the cause of her absence was illness since she did not establish such fact at the time if her desertion. The Appellant has faulted the Respondent for not following due process in issuing a show cause. Conversely, the Respondent submits that the Appellant by her own actions was evasive and could be traced for purposes of finding out about her wellbeing let alone initiating disciplinary procedures. Even after being accorded a chance to vindicate herself, the Appellant could not substantiate her claim. Decision 24.This being a first appellate court, it was held in Selle v Associated Motor Boat Co. [1968] EA 123 that:- “The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.” 25.The appellant was the claimant before the lower court. She filed a claim dated 10th September 2021, stating her employment with the respondent was unfairly terminated on 15th February 2021. She alleged there was no valid reason and/or procedural fairness. She sought compensation. (Pages 3 to 5 of ROA contain the memorandum of claim). The appellant relies on her written witness statement dated 10th September 2021 to show that on 13th January 2021, she sought permission to attend a funeral and was to return on 19th January 2021. She stated that on 15th January 2021, she fell ill and on the 17th, she was taken to Homabay County Referral Hospital for treatment. On 20th January 2021, she received a call from the respondent via Faith asking for her whereabouts, and she informed her of being unwell. She was then asked to go to Kibwezi for treatment. She also updated Faith on her continued treatment in Homabay and explained she could travel to work once she was well. She travelled to Kibwezi, and on 12th February 2021, around noon, she spoke with Rhoda of the respondent and told her she had been unwell. Rhoda referred her to Dan for a compassionate letter, but Dan told her they could no longer work with her. The following day, Mary handed her the termination letter. (Statements at pages 8-9 of ROA; all the named persons were her colleagues). 26.The appellant produced the letter of termination which read as follows- ‘RE: DesertionYou will recall that you deserted your duties with effect from 16/01/2021 and your whereabouts has remained unknown up to date, contrary to the provisions in the tenure of Employment Act 2007, The CBA, employment contract and to the company rules and regulations.In view of the above, the company has decided to treat your employment as void due to desertion with effect from 2nd February, 2021. You will forfeit your one (1) month's salary in lieu of notice as per the contract letter.Effectively, you have terminated your employment contract with DWA Estate Company Limited as your employer.Yours faithfully, DWA Estate Limited.’ 27.The court discerned the reason by the respondent for the termination of the employment was absconding /desertion. The appellant produced before the lower court a letter dated 10th February 2021 from the Homabay County teaching and referral hospital stating that she had been attended to in their hospital in the outpatient department with a diagnosis of Malaria and had been attending psychotherapy sessions up to 10th February 2021 when she last visited the hospital. The letter was signed by the Chief Executive Officer (page 14 of ROA). The appellant further produced handwritten treatment notes (pages 17-21 of ROA). 28.The respondent entered an appearance, filed a response, and stated that the appellant was an ex-employee on a piece-rate contract from 2nd January 2021 to 31st December 2021. She had held other contracts from 2016 to 2020. The respondent stated that the appellant failed to report to the workplace from 16th January 2021 without just reasons or explanation to the employer. Efforts to trace her were fruitless, leading to the conclusion of desertion. At the hearing, the appellant told the trial court she was to resume duty on 19th January 2021 but did not, as she got sick. She admitted not informing the employer and said she did not have the telephone number of the supervisor. She stated that on her return, she gave Dan her medical documents but admitted they had no stamp to that effect, and only the stamp was. She admitted that her father and brother were called by the respondent; she said they did not inform her that the employer was looking for her. On re-examination, she said she was treated as an outpatient and that she showed Dan the medical documents. 29.DW1 was Joan Kabuke, the Human Resources manager. On cross-examination, DW1 said they did not have casual employees. She said on 18th January 2021, they summoned her and issued a termination letter dated 15th February 2021. The witness admitted there was no show-cause letter, but she came, and they had a meeting. She said they had a hearing on 18th February 2021. That they called her. The witness stated they summarily terminated the appellant’s services as per the CBA and that she did not provide evidence for her long absence or prove she was sick. That the appellant came with 2 union representatives. DW2 was Grace Syombua Muisyo,. DW2 told the trial court that she called the appellant’s father and brother listed as next of kin. The appellant had been given off on 12th January 2021 and was to report back on the 19th January 2021. DW2 told the trial court she called the appellant on 26th January 2021 and the appellant informed her she was unwell. The appellant did not provide documents to prove she was in the hospital. The appellant reported back on the 17th February 2021, and she was issued with the letter of termination on the same date. DW2 was the supervisor. DW3 was George Omondi Ojuet, who confirmed that the appellant had no medical documents when she went to the Human Resources office. He confirmed that no one knew the appellant was sick on 18th February 2021 when he accompanied her to the human resource office as a union official after the termination. She was given one day to get hospital documents. DW3 told the trial court the appellant was away for 23 days, and as per the CBA, absence of 3 days amounts to desertion, she had no documents to show she was sick. 30.The trial court held as follows- ‘From the series of events, it is undisputed that the claimant's last working day was the 13th January 1021 when she proceeded on compassionate leave to attend a funeral in Homa Bay and she was to be back at work on 19th January 2021, however she did not report back until 17th February 2021.In her defence, she stated that she was unwell for the period she was not at work.I find that the respondent presented proof that through its human resource department which made efforts to find out her whereabouts, which included reaching out to her next of kin, that is her father, her brother, through their mobile phones. Rw2 stated that when she contacted the claimant's father he denied knowing whom she was but later called back and admitted that indeed she was his daughter and that she was in Kibwezi at the moment. This position was confirmed by the claimant's brother, Mr. Eric Onyango, on 12th February 2021.During trial, the claimant admitted that she made no attempt to inform the respondent nor her supervisor that she was allegedly admitted that she did not inform anyone of her condition.That even after the claimant came back to work on 17th February 2021 and on 18th February 2021, she had no proof or documentation to show that she was sick, she did not provide any sick leave as required by the law.I find the from the treatment notes produced by the claimant, none of the documents show the time at which she fell ill. They said notes do not indicate that she was the subject therein.The letter dated 10th February 2021 states that the claimant was discharged on the same day in a stable condition. Even if she was given sick of for three days, why did she report to work so many days later, on the 17th February 2021, which is 7 days clear days from when she was discharged, as per her documents.In the case of Julius Kyalo Malonza versus Ruth Osoro, t/as a rival catering services, 2021 eKLR, the ELRC determined that an employer was entitled to treat an employee to have absconded duty having made reasonable attempts to find out why they said employee has not been at work. The court in its final analysis stated that the claimant had failed to demonstrate on a balance of probability that he was unfairly terminated.From the respondent's evidence I find that the respondent was given an opportunity to explain herself as stated by RW3 in the presence of two shop floor union officials and the HR manager but she could not substantiate her absence.I therefore find that the declaration by the respondent that the not substantiated absence of the claimant and lack of production of medical evidence when she was required to do so after she went back to work, I do not find the termination unlawful.The claimant was accorded the opportunity to explain her absence, which she failed to do; Infact she was offered to work for the respondent in another capacity, which she declined, as she confirmed in her evidence. Therefore, the claimant has failed to meet the statutory burden under section 47 (5) of the Employment Act 2007.’ 31.Section 30 of the Employment Act envisages valid reason of absence from work on account of sickness of employee as follows- ‘30. Sick leave(1)After two consecutive months of service with his employer, an employee shall be entitled to sick leave of not less than seven days with full pay and thereafter to sick leave of seven days with half pay, in each period of twelve consecutive months of service, subject to production by the employee of a certificate of incapacity to work signed by a duly qualified medical practitioner or a person acting on the practitioner's behalf in charge of a dispensary or medical aid centre.(2)For an employee to be entitled to sick leave with full pay under subsection (1), the employee shall notify or cause to be notified as soon as is reasonably practicable his employer of his absence and the reasons for it.’(emphasis given) In the instant case, the appellant, though stating to have been unwell, did not submit to the employer any certificate of incapacity to work duly signed by a qualified medical practitioner. The respondents' witness confirmed that no medical certificate or evidence of sickness was produced despite the treatment note indicating she was in the hospital, outpatient on 15th February 2021. The appellant did not comply with the law. The employer made several attempts to get her back to work. The employer was entitled to treat the appellant as having deserted work, having made all efforts, and the employee having reported back without a medical certificate of sickness. Section 47(5) of the Employment Act states-‘For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer’. 32.I agreed with the trial court that the appellant did not discharge her burden of absence on the basis of sickness. She never produced a certificate of incapacity to work signed by a duly qualified medical practitioner or a person acting on the practitioner's behalf in charge of a dispensary or medical aid centre. The trial court's decision was based on the facts and the law. In declining to interfere with the decision of the trial court, I am guided by decision in Mbogo V Shah [1968] EA Page 93 where De Lestang V.P (As He Then Was) Observed At Page 94:- “I think it is well settled that this court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.’’ I uphold the trial court's decision that there was no proof of unfair termination. Whether the appellant was entitled to the relief sought in the claim 33.The appellant in her claim before the lower court sought relief for notice payment, service pay, unpaid salary for January 2021 and 15 days in February 2021, and damages for unlawful termination. 34.I upheld the trial court finding on fair termination, thus notice payment and compensation are not available. 35.On service pay – the claim was based on 7 years of service. Upon perusal of the employment contract, the court found no issue with service pay. The appellant was under NSSF. DW1 explained that the service pay was as per the CBA and stated that it was paid in 2020. The appellant submitted that the service pay the Respondent was averring to have paid was in the pay slip dated 31/12/2020 and therefore for the year 2020. The appellant contended that she worked for the Respondent for 7 years, and even if service gratuity was paid for the year 2020, which aspect is denied, there would be outstanding service pay for a period of 6 years. The Court noted that the payslip of December 2020 was produced and had an item of gratuity pay(page 112 of the ROA). The payment was as per CBA for 18 days worked in the year. The trial court applied section 35(5) and (6) of the employment to wit – ‘An employee whose contract of service has been terminated under subsection (1)(c) shall be entitled to service pay for every year worked, the terms of which shall be fixed.(6)This section shall not apply where an employee is a member of—(a)a registered pension or provident fund scheme under the Retirement Benefits Act;(b)a gratuity or service pay scheme established under a collective agreement;(c)any other scheme established and operated by an employer whose terms are more favourable than those of the service pay scheme established under this section; and(d)the National Social Security Fund.’ The court finds that the appellant, having been under NSSF, was not entitled to service pay. The claim before the court was of service pay and not gratuity. I find no basis to interfere with the finding of the trial court. (Mbogo v Shah, supra). 36.Claim for unpaid salary. The trial found the appellant was paid for the days worked in January 2021. RW3, a union official, testified that they were not paid for days not worked, even on compassionate off days. The appellant submitted as follows: The Respondent testified that the Claimant did not work for this period and was not entitled to pay. Dw-2 was categorical that even when employees were sick, they would be paid. Even Dw-1 admitted this aspect. The appellant submitted that she was unwell and was still an employee of the Respondent up to 15th February 2021, as such she was entitled to a salary up to the date of termination herein, the 15th February 2021. That she is entitled to the unpaid salary for January 2021 and the 15 days in February 2021. The court finds that the appellant failed to produce evidence of the alleged sickness before the employer (section 30, supra) and, as such, was treated as having deserted work, which position was upheld by the trial court and this court. The appellant was paid for work done. I find no basis of the claim for the salary for period the appellant was away from work. I find no basis to interfere with the decision of the trial court. (Mbogo v Shah, supra). 37.The appeal is held to lack merit and is dismissed. To temper justice with mercy, I make no order as to costs in the appeal. Each party to bear own costs. 38.The file is marked as closed. 39.It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 17TH DAY OF JULY, 2026.JEMIMAH KELIJUDGE.In the presence of:Court Assistant: OtienoAppellant – Ms MutukuRespondent – Mbeche