https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1869

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAKURU ELRC APPEAL NO. E073 OF 2025 (Before Hon. Lady Justice Anna Ngibuini Mwaure) ONLINE RETREADS LIMITED ………..….………...… APPELLANT VERSUS BEATRICE WANGUI MURAYA …………….……... RESPONDENT (Being an Appeal from the Judgment the Honourable Adet Vincent Okello, Senior Principal Magistrate, delivered on 31st July 2025 in Nakuru CM ELRC Misc Application No. 054 of 2025 ) JUDGMENT 1. The Appellant, being dissatisfied with the Judgment and Decree of the Honourable Adet Vincent Okello, Senior Principal Magistrate, filed this appeal vide a Memorandum of Appeal 28th November 2025, on the following grounds that: - 1.The learned Trial Magistrate erred in law and in fact in failing to critically analyze the evidence adduced by the Appellant in the trial court. ELRC APPEAL NO. E073 OF 2025 P A G E JUDGMENT 1 | 2.The learned Trial Magistrate erred in law and in fact in issuing adverse orders against the Appellant against the overwhelming evidence on record. 3.The learned Trial Magistrate erred in law and in fact in making a determination that the Respondent was unfairly terminated from employment against all the overwhelming evidence on record showing that all the requisite notices were duly serviced to the Respondent. 4.The learned Trial Magistrate erred in fact and in law by finding that the Respondent had been terminated on 5th February 2024, despite there being no evidence of such termination, and the evidence on record only shows that the Claimant was terminated after she declined to ELRC APPEAL NO. E073 OF 2025 P A G E JUDGMENT 2 | resume work and attend the disciplinary hearing. 5.The Learned Trial Magistrate erred in law and in fact in failing to appreciate the totality of case and the evidence on record that the Respondent had absconded duty and that all attempts to accord her the due process of reinstatement to work, and/or fair termination were frustrated by the Respondent. 6.The Learned Trial Magistrate erred in law and in fact in determining that procedural fairness was not followed by the Appellant against the overwhelming evidence on record that showed all procedures were adhered to. 7.The Learned Trial Magistrate erred in law and in fact in failing to appreciate the entire trial process and the testimonies of the witnesses produced during the said trial, hence ELRC APPEAL NO. E073 OF 2025 P A G E JUDGMENT 3 | arriving at a flawed erroneous conclusion of the matter. 8.The Learned Trial Magistrate erred in law and in fact in her exercise of discretion and judicial precedent by awarding compensation on the basis of four months’ salary and thus disregarding the fact that the Claimant had only worked for a period of less than 5 months, which would have necessitated a lesser duration. 9.The Learned Trial Magistrate erred in law and in fact in failing to consider the Appellant’s submissions and hence arrived at a wrong decision. 10. The Learned Trial Magistrate erred in law and in fact in failing to appreciate the Appellant’s case and evidence adduced. 2. The Appellant prays that: ELRC APPEAL NO. E073 OF 2025 P A G E JUDGMENT 4 | a. The Appeal be allowed and Judgement delivered on 31st July 2025, and all other subsequent orders be set aside in entirety. b. The Respondent to bear the costs of this appeal and the lower court matter. c. This Honourable court do issue any other relief that it may deems fit to grant considering the circumstances of the case and for the interest of justice. 3. The appeal was disposed of by way of written submissions. Appellant’s submissions 4. The Appellant submitted that under section 47(5) of the Employment Act, the burden of proving unfair termination lies with the employee, yet the Respondent failed to establish who terminated her employment, the reasons given, or whether the alleged verbal dismissal was issued by a person with authority. Reliance is placed on Josephine M. Ndungu & others v Plan International Inc [2019] KEELRC 663 (KLR), where the court held that an employee must first establish termination before ELRC APPEAL NO. E073 OF 2025 P A G E JUDGMENT 5 | the employer is called upon to justify it. Similarly, in Wanyera v Central Isiolo Investment Ltd [2024] KEELRC 596 (KLR), the court emphasized that termination must be justified by a valid reason and fair procedure. 5. The Appellant submitted that the Respondent absconded duty from 5th February 2024 and ignored invitations to resume work, including a response letter dated 7th February 2024 and a disciplinary invitation dated 1st March 2024. The Appellant argued the action amounts to desertion rather than termination. The Appellant relied on Ayub Kombe Ziro v Umoja Rubber Products Ltd [2022] KEELRC 141 (KLR), which held that an employer must demonstrate efforts to have an employee resume duty, and James Okeyo v Maskant Flower Limited [2015] KEELRC 1121 (KLR), which clarified that desertion does not amount to self-dismissal but requires employer action to end the relationship. 6. On constructive dismissal, the Appellant relied on the case of Kenya Union of Sugarcane Plantation and Allied Workers v Othira [2024] KEELRC 843 (KLR) the court cited the ELRC APPEAL NO. E073 OF 2025 P A G E JUDGMENT 6 | classical case the case of Western Excavating (ECC) Ltd v Sharp [1978] ICR 221, where Lord Denning stated as follows: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment or which shows the employer no longer intends to be bound by one or more of the essentials of the contract, then the employee is entitled to treat himself as discharged…” 7. The Appellant relied on Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] KECA 394 (KLR), which set out the elements of constructive dismissal as follows: i. That the employer was in fundamental breach of the contract of employment; ii. That the breach was sufficiently serious to justify the employee’s resignation; iii. That the employee resigned in response to that breach; ELRC APPEAL NO. E073 OF 2025 P A G E JUDGMENT 7 | iv. That the employee did not delay leaving long before too employment; and v. That the employer’s conduct objectively demonstrated an intention no longer to be bound by the contract. 8. The Appellant relied on the case of Kennedy Maina Mirera v Barclays Bank of Kenya Limited [2018] KEELRC 2332 (KLR), which stressed that constructive dismissal cannot be inferred lightly. The Appellant argued that no evidence was adduced of repudiatory conduct, denial of access to work, alteration of terms, or intolerable conditions. Instead, the Respondent admitted she was no longer interested in working, supporting desertion rather than constructive dismissal. 9. Finally, the Appellant challenges the award of Kshs.140,668/= being four months’ salary and Kshs.35,167/= being one month’s notice pay, arguing that under sections 43, 45, and 49(4) of the Employment Act, compensation requires proof of termination and consideration of factors such as length of service. Given the Respondent’s short ELRC APPEAL NO. E073 OF 2025 P A G E JUDGMENT 8 | service of less than five months and her desertion, the Appellant submitted the award was excessive, unjustified, and contrary to law. 10. The Appellant maintains that the Respondent deserted duty, failed to prove termination or constructive dismissal, and that the trial court erred in law and fact by awarding compensation and notice pay without an evidentiary basis, hence urged the court to allow the appeal as prayed. 11. At the writing of this judgment, the Respondent did not file their respective written submissions despite being served with the judgment notice by the Appellant’s advocates. Analysis and determination 12. Being the first appeal, the court must re-evaluate the evidence and come to a conclusion since it was not present when the evidence was adduced or see the witnesses as set out in Abok James Odera T/A A. J. Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2001] KECA 21 (KLR) and Selle Associates V Associated Motor Boat Company Ltd (1968) E.A. 123. ELRC APPEAL NO. E073 OF 2025 P A G E JUDGMENT 9 | 13. Having considered the memorandum of appeal and the rival submissions on record, the issue for determination is whether Trial Magistrate erred in finding the Respondent was unfairly terminated and awarding him the reliefs. 14. The court reiterates section 47(5) of the Employment Act which provides as follows: that “For any complaint of unfair termination of employment or wrongful dismissal the burden of proving 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.” 15. In Isindu v Lavington Security Guards Ltd [2017] KECA 225 (KLR) the Court of Appeal stated as follows: “There can be no doubt that the Act, which was enacted in 2007, places heavy legal obligations on ELRC APPEAL NO. E073 OF 2025 P A G E JUDGMENT 10 | employers in matters of summary dismissal for breach of employment contract and unfair termination involving breach of statutory law. The employer must prove the reasons for termination/dismissal (section 43); prove the reasons are valid and fair (section 45); prove that the grounds are justified (section 47 (5), amongst other provisions. A mandatory and elaborate process is then set up under section 41 requiring notification and hearing before termination. The Act also provides for most of the procedures to be followed thus obviating reliance on the Evidence Act and the Civil Procedure Act/Rules. Finally, the remedies for breach set out under section 49 are also fairly onerous to the employer and generous to the employee. But all that accords ELRC APPEAL NO. E073 OF 2025 P A G E JUDGMENT 11 | with the main object of the Act as appears in the preamble: “..to declare and define the fundamental rights of employees, to provide basic conditions of employment of employees.." Those provisions are a mirror image of their constitutional underpinning in Article 41 which governs rights and fairness in labour relations. Section 47 (5) of the Act provides for the procedure to be followed in matters of complaints of unfair termination as follows: “ For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful has occurred shall rest on the employee, while the burden of justifying the grounds of the termination of employment or wrongful dismissal shall rest on dismissal ELRC APPEAL NO. E073 OF 2025 P A G E JUDGMENT 12 | the employer.” [Emphasis added]. So that, the appellant in this case had the burden to prove, not only that his services were terminated, but also that the termination was unfair or wrongful. Only when this foundation has been laid will the employer be called upon under section 43 (1): “to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45.” [Emphasis added].” 16. In H Young Company (EA) Limited v Kenya Building, Construction, Timber & Furniture Industries Employees Union [2026] KECA 1020 (KLR), the Court of Appeal stated as follows: “Section 41(1) of the Employment Act requires that before terminating ELRC APPEAL NO. E073 OF 2025 P A G E JUDGMENT 13 | the employment of an employee on grounds of misconduct, the employer should explain to the employee the reasons for which it is considering the termination. In effect an explanation of the reason for termination is contemplated and should be given prior to the termination. In the same spirit, under Section 41(2) of the Employment Act, before summarily dismissing an employee, the employer is enjoined to hear and consider any representations which the employee may make. In that regard Section 41(2) provides for the procedure to be adhered to before an employee can be summarily dismissed. It stipulates that: “Notwithstanding any other provision of this Part, an before employer terminating the employment of an employee or summarily dismissing an employee under shall, ELRC APPEAL NO. E073 OF 2025 P A G E JUDGMENT 14 | section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), make”. [Emphasis added]. Summary dismissal is therefore no longer a secret weapon that an employer unleashes on an employee without giving reasons why the employer is considering terminating or dismissing the employee and without according the employee an opportunity to make representations in that regard.” 17. In Bamburi Cement Limited v William Kilonzi [2016] KECA 546 (KLR) the Court of Appeal affirmed the finding of the trial court that, although the Respondent was accorded the requisite procedural safeguards and heard in his defence prior to dismissal, the Appellant failed to discharge its burden of proving substantive justification for the ELRC APPEAL NO. E073 OF 2025 P A G E JUDGMENT 15 | summary dismissal. The court observed that no evidence was adduced to demonstrate conduct on the part of the Respondent amounting to a fundamental breach of his contractual obligations so as to warrant summary termination. Consequently, the grounds relied upon by the Appellant were deemed unreasonable and insufficient, and the dismissal was held to be wrongful. 18. In this appeal, the Respondent was employed by the Appellant as an Administrative and Finance Officer on 18th September 2023 under a written contract of service. She averred that she was summarily dismissed verbally, without notice. The Appellant, however, contended that the Respondent had absconded duty contrary to Section 44 of the Employment Act, thereby justifying her dismissal. Upon hearing the matter, the Learned Trial Magistrate found that the Respondent had been summarily dismissed and proceeded to award her one month’s salary in lieu of notice, four months’ compensation for unfair termination, a certificate of service, together with costs of the suit. ELRC APPEAL NO. E073 OF 2025 P A G E JUDGMENT 16 | 19. The court finds that the Appellant summarily dismissed the Respondent without complying with the twin requirements of substantive justification and procedural fairness as mandated under sections 41, 43, and 45(2) of the Employment Act. Although the Appellant invited the Respondent to a disciplinary hearing and she duly responded to a show-cause letter, the record of appeal discloses no evidence that such a hearing was ever conducted, nor that the Respondent failed to attend. Even if the allegation of absconding duty were established, the Respondent retained the statutory right to be heard before the Appellant could lawfully reach a decision to terminate her employment on grounds of abscondment. 20. In Ominde v Western Steel Mills & Another [2026] KEELRC 1335 (KLR), the court emphasized that summary dismissal must satisfy both substantive and procedural safeguards. The dismissal in that case was found to be unfair for want of compliance with the mandatory provisions of section 41, and therefore unlawful under section 45(1) and (2) of the Act. In Boniface Francis ELRC APPEAL NO. E073 OF 2025 P A G E JUDGMENT 17 | Mwangi v B.O.M. Iyego Secondary School [2019] KEELRC 1621 (KLR) the court cited the cases in Simon Mbithi Mbane v Inter Security Services Limited [2018] eKLR and Joseph Nzioka v Smart Coatings Limited [2017] eKLR, dismissal on account of absconding requires proof of such efforts. The employer must reach out to the employee and take him through disciplinary proceedings on the grounds of desertion. There is lacking such evidence in the pleadings. 21. In courts records there is one letter from the Respondent dated 1st March, 2024 inviting the Claimant to a disciplinary hearing. They alluded to a letter apparently addressed to the claimant to report back to work. The letter was not produced in court. No other evidence was presented in court alluding to the Claimants desertion from work. The court did not see evidence of the termination letter from the Respondents and valid reasons as to justification of termination. 22. In the case of OMUNCU VS MINI BAKERIES NAIROBI LTD 29 2026 REELRC (KLR) 2026 held that “where an employer alleges desertions it must ELRC APPEAL NO. E073 OF 2025 P A G E JUDGMENT 18 | prove that it attempted to contact an employee and followed a fair disciplinary process under Sections 41 And 44 of the Employment Act. Even if the employee disappears from work, procedural fairness is still required. 23. The court agrees with the findings of the trial court in his judgement that the Respondent did not show a formal show cause letter or communication genuinely seeking the Claimants explanation to her absence and finalized and delivered notice of dismissal following procedure. He concluded which conclusion I agree with that the Claimant was constructively dismissed. The court upholds the findings of unfair termination by the trial court and so dismisses the Appeal. 24. The court however, finds an award grant of 4 months’ equivalent salary for an employee who worked from 18th September, 2023 up to February, 2024 is excessive. I will rather grant her 2 months in fairness and in accordance to provisions of Sections 49 (1) of the Employment Act and so amounts to Kshs.70,374/=. ELRC APPEAL NO. E073 OF 2025 P A G E JUDGMENT 19 | b. The court also grants one month salary in lieu of notice amounting to Kshs.35,187/=. Total award is now Kshs.105,561/=. c. Interest will be at 14% P.A from the date of this judgement till full payments. d. Costs of Trial Court and of the Appeal are awarded to the Respondent. Orders accordingly. Dated, Signed and Delivered virtually at Nakuru this 26th Day of June, 2026. ANNA NGIBUINI MWAURE JUDGE ORDER In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and JUDGMENT 20 | ELRC APPEAL NO. E073 OF 2025 P A G E rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE ELRC APPEAL NO. E073 OF 2025 P A G E JUDGMENT 21 |