Parapet Ltd v Ogola (Appeal E113 of 2024) [2026] KEELRC 1653 (KLR) (11 June 2026) (Judgment)

Parapet Ltd v Ogola (Appeal E113 of 2024) [2026] KEELRC 1653 (KLR) (11 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1653 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Appeal E113 of 2024 K Ocharo, J June 11, 2026 Between Parapet Limited Appellant and Fredrick Okoth Ogola Respondent (Being an appeal from the Judgment of Hon. Sogomo delivered 11th October 2024 in MCCELRC No. E 740 of 2021) Judgment Background 1.Contending that at all material times he was an employee of the Appellant and that his employment was unfairly terminated, the Respondent sued the Appellant in the above-stated suit, seeking various reliefs, as follows;(a)One month's salary in lieu of notice - KShs. 15,000(b)Unpaid Salary from July to 31st December KShs. 69, 000(c)Compensation for earned but unutilized leave days – KShs. 52, 500.((e)Severance pay since N.S.S.F was not being paid KShs. 37,500(f)General damages for unfair termination 15,000 ×12⋯⋯⋯⋯⋯⋯⋯⋯⋯⋯⋯⋯⋯= 180,000.Total KShs. 354,000. 2.The Appellant opposed the Respondent’s case, denying his cause of action against them and entitlement to the reliefs sought. Respondent’s case 3.The Respondent’s case in the lower court was that he was employed by the Appellant, Parapet Limited, as a skilled steward from 1st November 2016 until 31st December 2020, when his employment was unfairly and unlawfully terminated. He stated that at the time of termination, he was earning a net monthly salary of KShs. 15,000. 4.The Respondent averred that his employment contract required either party to give 30 days’ notice or payment in lieu of notice before termination. He contended that the Appellant terminated his employment without issuing notice, without giving him any valid or justifiable reason, and without affording him a hearing as required under the Employment Act. 5.He further claimed that the Appellant failed to pay his terminal dues and contractual benefits despite demand. 6.The Respondent therefore maintained that his termination was unfair, unjust, unconstitutional, and contrary to statutory provisions. Appellant’s case 7.It was the Appellant’s case, as came out of the evidence of its witnesses, that it provides cleaning services to various institutions. 8.In 2015, it secured a contract to provide cleaning services to the United Nations Support for Somalia (UNSOS), whose offices were based at Moi International Airport, Mombasa. By a letter dated 2nd December 2015, it employed the Respondent on a one-year contract at a gross salary of KShs. 15,000. 9.The Respondent’s employment was tied to the UNSOS contract. He was deployed to UNSOS alongside other employees. 10.The Appellant further stated that the UNSOS contract was extended several times until December 2019, when it was awarded to another company. Before the contract expired, its Station Supervisor, Lucy Mbala, met with the employees deployed at UNSOS and informed them of the contract's expiration. They were then instructed to report to the Appellant’s Mombasa offices on 1st January 2020 for redeployment. 11.The Respondent reported back for redeployment but thereafter absconded duty. As such, his employment was not terminated at the initiative of the Appellant as he alleged. Judgement 12.After hearing the Parties’ respective cases, the learned trial Magistrate entered judgment for the Respondent, declared that his employment was unlawfully terminated and awarded him notice pay [KShs. 15,000], Unpaid salary [KShs. 69,000], compensation for earned but unused leave days [KShs. 52,500], and compensation for unfair termination: twelve months’ gross salary [180,000]. Appeal 13.Being dissatisfied with the decision, the Appellant filed this appeal on the following grounds;1.That the Learned Magistrate erred in law and in fact by finding that the Claimant's termination was wrongful and unfair.2.That the Learned Magistrate erred in law and in fact in failing to find that the Claimant absconded from his duties.3.That the Learned Magistrate erred in fact by failing to find that the Claimant did not provide any proof of having been dismissed by the Claimant.4.That the Learned Magistrate erred in law and fact by failing to appreciate the effort made by the Respondent in tracing the Claimant after the Claimant absconded from duty.5.That the Learned Magistrate erred in law and fact by failing to find that the Respondent did not owe the Claimant unpaid salaries or leave days. Appellant's written submissions 14.The Appellant submits that the trial court erred in finding the Respondent’s termination wrongful and unfair. It contends that the Respondent failed to prove that he had been dismissed, and that the evidence before the lower court showed that he had absconded from duty. 15.According to the Appellant, its contract with UNSOS was due to conclude in December 2019. Its employees, including the Respondent, were duly informed of the impending termination of the contract and instructed to report to its offices in Mombasa on 1st January 2020 for redeployment. The Respondent reported for redeployment; however, thereafter, he absented himself from duty without the Appellant’s authority. 16.The Appellant submits that the Respondent failed to discharge the burden imposed upon him under section 47(5) of the Employment Act. It contends that an employee alleging unfair termination must first demonstrate that the termination occurred and was unlawful before the employer is required to justify it pursuant to section 43 of the Act. To support this, reliance is placed on Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR. 17.The Appellant further submits that the documents produced by the Respondent did not prove unfair termination. He did not discount the Appellant’s documentary evidence that clearly showed that he had absconded from duty. He did not tender evidence from which the fact that his employment was terminated by the Appellant can be discerned. 18.The Appellant further submits that the Respondent unilaterally terminated his employment by absconding from duty. The daily work log-in sheets placed before the trial Court as evidence by the Appellant support this. DW2 also testified that she attempted to reach the Respondent after he stopped reporting to work, but he ignored her calls. 19.The Appellant relies on section 44(4)(a) of the Employment Act and the decisions in Richard Kiplimo Koech v Yuko Supermarket Ltd [2015] eKLR and Banking, Insurance & Finance Union (Kenya) v Barclays Bank of Kenya Ltd [2014] KEELRC 1145 (KLR) for the proposition that absence from work without lawful cause may amount to gross misconduct and justify summary dismissal. 20.On remedies, the Appellant submits that since the Respondent failed to prove unfair termination, the reliefs awarded by the trial court were not justified. It argues that awards under section 49 of the Employment Act, including notice pay and compensation, are only available where termination is proved to be unfair or unjustified. Respondent's written submissions 21.The Respondent submits that the trial court correctly found the termination of his employment unfair and that the appeal should be dismissed. He states that he worked for the Appellant as a skilled steward from 1st November 2015 until 31st December 2020, when he was dismissed without notice, reason or disciplinary proceedings. He contends that although the Appellant alleges that he absconded from duty in May 2020 after a redeployment meeting, the Appellant did not produce minutes of the alleged meeting or evidence that he consented to redeployment. 22.The Respondent relies on his 2020 KRA income tax deduction card, which he states shows that the Appellant remitted income tax on his behalf from January to December 2020. This supports his position that he continued working until December 2020 and contradicts the Appellant’s allegation that he absconded in May 2020. He further submits that the Appellant did not dispute the KRA document. 23.On the burden of proof, the Respondent submits that once an employee places before the court prima facie evidence that termination occurred and that it was not substantively or procedurally fair, the burden shifts to the employer to justify the termination under sections 43, 45 and 47(5) of the Employment Act. 24.Regarding the allegation of desertion, the Respondent submits that the Appellant failed to prove that he absented himself from duty. He argues that, where an employer alleges desertion, it must demonstrate the reasonable efforts it undertook to trace the employee, such as letters, calls, text messages, call logs, or notices to show cause. 25.The Respondent further submits that the law does not recognise automatic termination of employment on account of an alleged desertion. The employer must show that the cannons of procedural fairness and substantive justification are met if their assertion is to be accepted. 26.On leave pay, the Respondent submits that his evidence that at separation he had earned but unutilized leave days was not rebutted. The Appellant, as the custodian of employment records, failed to produce leave records to disprove the claim. To support the submission that in such circumstances the trial Court rightfully awarded him the relief, he relies on Abigael Jepkosgei Yator & another v China Hanan International Company [2018] KEELRC 2541 (KLR). 27.Regarding unpaid salaries, the Respondent submits that the Appellant failed to produce payslips or payment records for July 2020 to December 2020. He argues that the KRA income tax deduction card shows that his salary and statutory deductions continued until December 2020, supporting his claim that he worked until then. He maintains that the trial court was justified in awarding unpaid salaries and leave pay. Analysis and determination 28.As this is a first appeal, this Court is required to re-evaluate the evidence on record and arrive at its own independent conclusion, bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify. The issues for determination in this appeal are whether the trial court erred in finding that the Respondent was unfairly terminated, and whether the awards made in favour of the Respondent were justified. 29.It is not disputed that there existed an employment relationship between the parties. The Respondent’s case was that he worked for the Appellant as a skilled steward until 31st December 2020, when his employment was terminated without notice, reason, or hearing. The Appellant, on the other hand, denied terminating the Respondent’s employment and maintained that the Respondent absconded from duty after the UNSOS contract came to an end and after he had been instructed to report to the Appellant’s Mombasa office for redeployment. 30.The Appellant’s main ground of appeal is that the trial court failed to find that the Respondent had absconded from duty. However, where an employer alleges absconding or desertion, it is not sufficient merely to state that the employee failed to report to work. The employer must demonstrate the steps taken to contact the employee and to formally end the employment relationship. Absence from work may constitute misconduct under section 44(4)(a) of the Employment Act, but the employer must still comply with the requirements of procedural fairness under section 41 of the Act. 31.The Appellant’s witnesses stated that the Respondent absconded intermittently in 2020, disappeared in 2021, resurfaced in December 2021 and absconded again in February 2022. Lucy Mbala stated that she called the Respondent to inquire about his whereabouts, but that he ignored her calls. 32.However, no call logs, letters, text messages, notices to show cause, or any documentary evidence were produced to demonstrate the efforts allegedly made to trace the Respondent or require him to explain his absence. The Appellant also did not show that it issued any formal communication terminating the employment relationship for desertion. 33.The Respondent, on the other hand, maintained that the Appellant continued making statutory deductions for him up to December 2020. 34.Under section 47(5) of the Employment Act, the employee bears the burden of proving that an unfair termination occurred, while the employer bears the burden of justifying the grounds for termination. Once the Respondent pleaded that he had been terminated without notice, reason or hearing and placed before the court documents suggesting that the employment relationship continued until December 2020, the evidential burden shifted to the Appellant to justify the separation. 35.The Appellant did not discharge that burden. It did not prove desertion, did not prove reasonable steps to trace the Respondent, and did not prove compliance with sections 41, 43 and 45 of the Employment Act. 36.The Court in the case of Simon Mbithi Mbane v Inter Security Services Limited [2018] KEELRC 2234 (KLR), held that, “An allegation that an employee has absconded duties calls upon an employer to reasonably demonstrate that efforts were made to contact such an employee without success.” 37.I therefore find no basis to disturb the trial court’s finding that the termination of the Respondent’s employment was unfair. The Appellant’s assertion that the Respondent absconded duty was not proved to the required standard. 38.With regard to the remedies, the award of one month’s salary in lieu of notice was justified pursuant to section 35 of the Employment Act, as the termination was deemed unfair and no lawful summary dismissal was proved. 39.Additionally, the award of unpaid salary was on a sound basis. The trial court’s reliance on the Appellant’s failure to present payslips or payment records for the period in question as the basis for the award cannot be faulted, as, in law, at all material times, the Appellant was in possession of the employment records of the Respondent. In the absence of documents, the Respondent’s case was not dislodged. 40.Section 28 of the Employment Act entitles an employee to annual leave. The parties took diametrically opposed positions on whether the Respondent had earned but unutilised leave days. From the outset, through its pleadings, the Respondent made it clear to the Appellant that it was seeking compensation for those leave days. The Appellant knew the case they were to meet. It was therefore imperative for the Appellant to tender employee records to rebut the Respondent’s assertion at trial. It did not. In my view, the learned trial Magistrate correctly and reasonably made the award under that head. 41.The claim for service pay was properly declined because the record showed that NSSF deductions had been made. Under section 35(6) of the Employment Act, an employee who is a member of NSSF is generally not entitled to service pay in addition to statutory social security benefits. 42.Compensation pursuant to Section 49[1][c] of the Employment Act is a discretionary award. As such, where a Court makes the award, it must expressly state the factors considered in determining it. I note that the trial court awarded the Respondent the maximum award contemplated under the provision. In my view, considering the length of service of the Respondent, the award was excessive. I hereby reduce the award to five months’ gross salary, KShs. 90,000. 43.Each party shall bear its own costs. READ, SIGNED, AND DELIVERED THIS 11TH DAY OF JUNE 2026.OCHARO KEBIRAJUDGE