https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1288

Muuo v Market Car Hire Service Station Ltd (Appeal E214 of 2024) [2026] KEELRC 1288 (KLR) (14 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1288 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Appeal E214 of 2024 DKN Marete, J May 14, 2026 Between Patrick Kimenya Muuo Appellant and Market Car Hire Service Station Ltd Respondent Judgment 1.This matter was originated by way of a Memorandum of Appeal dated 31st July, 2024 and subsequently amended on 6th August, 2024. It is an appeal from the judgment delivered on 15th July, 2024 in Milimani MCELRC/E1953/2022. 2.The Memorandum of Appeal sets out the following grounds:i.That the Learned Magistrate erred in law and in fact in failing to find that the termination and dismissal of the Appellant by the Respondent was unjustified, unlawful, unfair, wrongful, in breach of the contract of employment and illegal.ii.That the Learned Magistrate erred in law and in fact in failing to consider whether there was any valid reason for the termination of employment.iii.That the Learned Magistrate erred in law and in fact in failing to consider whether the employer had made efforts to seek an explanation on the allegation that the Appellant had absconded duty.iv.That the Learned Magistrate erred in law and in fact in failing to consider the fact that the Appellant was not issued notices, provided for the grounds of termination, or even afforded a fair hearing to respond to the charges.v.That the Learned Magistrate erred in law and in fact in finding that the Appellant did not meet the threshold of the burden of proof on dismissal, despite the evidence.vi.That the Learned Magistrate erred in law and in fact in failing to consider that the Appellant, having served the Respondent for 7 years with no leave, without a single warning either orally or in writing, a notice to show cause, or any disciplinary action to show any wrongdoing, the whole process of termination of employment was unfair, unconstitutional, and malicious, and that the Appellant should be compensated for unlawful and unfair termination.vii.That the Learned Magistrate erred in law and in fact in failing to consider the Respondent’s failure to observe the procedural structures set to guarantee the upholding of the principles of natural justice in processing the separation between the Respondent and the Appellant.viii.That the Learned Magistrate erred in law and in fact in failing to consider that the Appellant is entitled to salary in lieu of notice totalling Kshs. 24,000, compensatory damages equivalent to 12 months’ gross salary totalling Kshs. 288,000, and leave arrears compounded from 2013 to 2020 totalling Kshs. 121,800. 3.The Appellant prays for orders that:a)The appeal be allowed.b)The ruling of the trial court be set aside.c)The Court make its own determination.d)That the costs of the lower court and this appeal be awarded to the Appellant.e)Interests from the date of judgment.f)Any other relief the court may deem fit and just to grant. 4.The Appellant’s case before the trial court was presented through the following documents, all of which form part of the Record of Appeal: a Memorandum of Claim dated 7th November, 2022, a Verifying Affidavit of even date, a Claimant’s Witness Statement of even date, a List of Witnesses of even date, a List and Bundle of Documents of even date, a Statement of Response by the Respondent dated 15th December, 2022, a Respondent’s Witness Statement and List and Bundle of Documents of even date, and the proceedings before the trial court. At the appeal stage, the Appellant filed Written Submissions dated 26th February, 2024. 5.The Appellant’s case, as presented at trial and on appeal is that the Appellant was employed by the Respondent on 1st March 2013 as a mechanic on a gross monthly salary of Kshs. 15,000.00. This was subsequently increased to Kshs. 24,000.00 per month. He served the Respondent for approximately seven years without ever being served with a warning letter, a notice to show cause or any disciplinary action to show any wrongdoing, and without ever taking annual leave. On 7th August 2020, he fell ill and immediately sought medical assistance after notifying the Respondent. He contends that the Respondent thereafter arbitrarily terminated his employment without any notice, valid reason or due process. He testified in his witness statement that he was called by the Respondent and asked not to report to work. He produced a Ministry of Health TB appointment card as evidence of his illness and hospital attendance. He avers that he has been unable to find alternative comparable employment since his dismissal and is the sole breadwinner of his family. 6.In their Written Submissions dated 26th February 2024, the Appellant identified four issues for determination, challenged the trial court’s application of the burden of proof under Section 47(5) of the Employment Act, 2007 and contended that the Respondent’s allegation of abscondment was an afterthought unsupported by any steps taken to contact him or any issue of a notice to show cause. The Appellant relied on Arasa & another v Benori Agencies and Services Limited [2022] KEELRC 116 (KLR) and Sabatia v Singh [2023] KEELRC 1076 (KLR) for the proposition that where an employer alleges abscondment, it is incumbent upon the employer to demonstrate the reasonable steps taken to ascertain the employee’s whereabouts and to issue a notice to show cause before proceeding to termination. The Appellant further relied on Galgalo Jarso Jillo v Agricultural Finance Corporation [2021] eKLR for the proposition that once an employee establishes a prima facie case of unfair termination, the burden shifts to the employer to justify the termination. 7.The Appellant claimed salary in lieu of notice of Kshs. 24,000, compensatory damages of Kshs. 288,000, and leave arrears of Kshs. 121,800, for a total of Kshs. 433,800, together with a Certificate of Service and costs. 8.The Respondent’s case before the trial court was presented through a Statement of Response dated 15th December, 2022, a Witness Statement of even date and a List and Bundle of Documents of even date. The Respondent denied each and every material allegation in the Memorandum of Claim and prayed for dismissal of the suit with costs. 9.The Respondent’s case, as presented at trial and on appeal, is as follows; Georgina Musyimi, Human Resource Officer at Snowpeak General Contractors, testified as RW1 on behalf of the Respondent. She stated that the Appellant was hired in 2015. Further they testified that he failed to show up for work, and that the Respondent attempted to reach him by phone calls and text messages without success. She testified that the Appellant went on leave and failed to resume thereafter and that he was not terminated, the Respondent having a formal procedure of termination by thirty days’ written notice. She stated that the Appellant reappeared in November, 2022 claiming to have been unwell and in hospital for a lengthy period. She further stated that all his dues were paid when he disappeared and that his salary was Kshs. 18,000 per month, not Kshs. 24,000 as alleged in cross-examination. They admitted that no notice to show cause was issued and that no disciplinary hearing was held, explaining that the Respondent regarded the matter as a case of desertion rather than a disciplinary issue. She further admitted that the Respondent’s attempts to contact the Appellant were by phone only and that no written communication was addressed to him at any stage. 10.By a judgment dated 15th July 2024, the trial court found that the employment relationship between the parties was not in dispute, both parties having admitted a contractual relationship confirmed by the employment contract produced in evidence. On the question of dismissal, the learned Magistrate found that the two parties gave diametrically opposed accounts of how the employment relationship ended: the Respondent alleging abscondment from March 2020, and the Appellant alleging arbitrary dismissal as he had sought leave to attend to his illness in August 2020. Applying Section 47(5) of the Employment Act, 2007 the learned Magistrate found that the burden of proving unfair termination lay with the employee, and that the Appellant had admitted in cross-examination that he had no documentary evidence of termination. Relying on Protus Wanjala Mutike v Anglo African Properties t/a Jambo Mutara Lodge Laikipia [2021] eKLR, the trial court dismissed the claim in its entirety and awarded costs to the Respondent. 11.The issues for determination therefore are:1.Whether the termination of the Appellant’s employment was unfair, unlawful, and wrongful.2.Whether the Respondent breached the Employment Act, 2007 and the Appellant’s contract of employment.3.Whether the Learned Magistrate erred in law and fact in his handling of the burden of proof.4.Whether the Appellant is entitled to the reliefs sought.5.Who bears the costs of this appeal. 12.On the applicable standard of review, this court is entitled and obliged as a first appellate court to re-evaluate the evidence on the record and draw its own conclusions, while remaining conscious that it lacked the advantage of observing the demeanour of witnesses at trial. Interference with the findings of the trial court is warranted only where the trial court misdirected itself in law or in fact, took irrelevant considerations into account, failed to consider relevant matters, or reached a decision that is plainly wrong. 13.On the 1st issue for determination, the Employment Act, 2007 is the principal legislation governing termination of employment in Kenya. Section 45(1) is unequivocal that no employer shall terminate the employment of an employee unfairly. Section 45(2) provides that a termination of employment is unfair if the employer fails to prove that the reason for the termination is valid; that the reason for the termination is a fair reason related to the employee’s conduct, capacity or compatibility, or based on the operational requirements of the employer and that the employment was terminated in accordance with fair procedure. Substantive and procedural fairness are conjunctive requirements and not alternatives. 14.The Respondent’s case is that the Appellant absconded duty from March, 2020 and was therefore not terminated. This Court must consider whether that position is tenable on the evidence adduced at trial and in law. There is a distinction, well-settled in our jurisprudence, between desertion and absence without leave. As was stated in the South African decision of Seabolo v Belgravia Hotel [1997] 6BLLR 829 (CCMA), desertion is distinguished from absence without leave in that the employee who deserts does so with the intention of not returning. In the present matter, the Appellant’s evidence, which was not satisfactorily contradicted is that he fell ill, notified his employer, sought medical attention and on attempting to resume was turned away. He produced medical documentation in the form of a TB appointment card corroborating his illness and hospital attendance. These are not the acts of a person who intended to desert his employment. Against this, the Respondent’s witness conceded under cross-examination that there was no notice to show cause, no disciplinary hearing, and no written communication addressed to the Appellant at any stage. 15.Courts have been consistent on the obligations of an employer who asserts abscondment. In the authority of Arasa & another v Benori Agencies and Services Limited [2022] KEELRC 116 (KLR), this Court held that wherever an employer asserts that an employee absconded duty, it is incumbent upon the employer to demonstrate what reasonable steps it took to ascertain the whereabouts of the employee, including issuing a notice to show cause why the employee should not be dismissed for having absconded duty and that the employee must be made aware that the question of his or her termination is being considered on account of his or her absence. Again in Sabatia v Singh [2023] KEELRC 1076 (KLR), the court further observed that an employer considering termination on grounds of desertion must show efforts made to recall the employee, and if those fail, must give notice to the employee that termination is being considered on grounds of desertion. The Respondent in this appeal did none of these things. The sole steps taken were telephone calls which the Respondent claimed were unanswered, for which no record, screenshot, or other evidence was produced. No written notice was sent to the Appellant’s last known address. No notification was made to the Labour Office. The Respondent’s assertion of abscondment was accordingly a bare claim, not established in evidence or at all to the standard the law requires. 16.There is a further evidentiary matter that this Court must address. The Appellant’s last payslip in evidence is for September, 2017 and reflects a gross salary of Kshs. 18,000. The Respondent’s witness confirmed this figure. The Appellant, however, testified on oath that his salary had been increased to Kshs. 24,000 per month. The Respondent produced no payslips for the period 2018 to 2020. This is a period of approximately three years for which the employer, on whom the obligation to maintain employment records rested, produced nothing. The adverse inference that flows from this omission is that those records, had they been produced, would have confirmed the Appellant’s account of the salary increase. On a balance of probabilities, this Court accepts Kshs. 24,000 as the Appellant’s gross monthly salary at the time of termination. 17.This court finds, on a balance of probabilities, that the employment relationship was terminated by the Respondent. The Appellant’s evidence that he was called and told not to report to work was not satisfactorily contradicted. Even on the Respondent’s own account of abscondment, the Respondent wholly failed to take the steps the law requires before treating an employee as having deserted. On either analysis, the termination was substantively and procedurally unfair. 18.On the 2nd issue for determination, Section 41 of the Employment Act, 2007 requires that the Respondent, before terminating the Appellant’s employment on grounds of misconduct or any cognate ground, to explain the reason for the intended termination in a language the Appellant understands and to afford him the opportunity to respond, accompanied by a fellow employee or shop floor union representative of his choice. Section 43 required the Respondent to prove the reason for termination. Section 45(2) required both a valid reason and fair procedure. The Respondent discharged none of these obligations. There was no show cause letter, no disciplinary hearing, no termination letter and no opportunity accorded to the Appellant to answer any charge(s.) The Respondent’s own witness confirmed each of these failures in cross-examination. The Respondent’s failure to follow the fair procedure prescribed by statute is a clear breach of the Employment Act, 2007 and of the Appellant’s contractual rights. 19.On the 3rd issue, Section 47(5) of the Employment Act,2007 provides a bifurcated burden of proof: the employee bears the burden of proving that an unfair termination or wrongful dismissal has occurred, while the burden of justifying the grounds for the termination rests on the employer. The trial court appears to have placed the entire evidential burden on the Appellant without considering whether a prima facie case had been established sufficient to shift the burden to the Respondent. In Galgalo Jarso Jillo v Agricultural Finance Corporation [2021] eKLR, this Court articulated the interplay between sections 43, 45 and 47(5) of the Employment Act, 2007: all the employee needs to do to discharge the burden on his or her part is to place before the court prima facie evidence suggesting that a termination has occurred and that the said termination lacks substantive justification or is procedurally flawed, whereupon the burden of proof shifts onto the employer to justify the termination. The Appellant in the present matter testified that he was employed, that he fell ill and notified his employer and that he was subsequently told not to report to work. That evidence established a prima facie case. The burden then shifted to the Respondent to justify the termination in terms of sections 43 and 45 of the Employment Act, 2007. The Respondent did not discharge that burden. The trial court failure to appreciate this shift was an error of law that infected the entirety of his analysis. It is on this ground that this judgment cannot stand. 20.On the 4th issue, having found the termination to be unfair and unlawful, this court proceeds to consider the Appellant’s entitlement to the reliefs sought. Section 49 of the Employment Act, 2007 is the governing provision. Section 49(1) provides that where a court finds that a termination of employment is unfair, it may order re-instatement or re-engagement, or award compensation not exceeding the equivalent of twelve months’ gross wages or salary. Section 49(4) sets out the factors to be considered in determining the appropriate relief and quantum. 21.On salary in lieu of notice, Section 35(1)(c) of the Employment Act, 2007 provides that where the period of employment is five years or more, the period of notice required is twenty-eight days. Having served for approximately seven years, the Appellant is entitled to one month’s salary in lieu of notice in the sum of Kshs. 24,000.00 22.On leave arrears, Section 28 of the Employment Act, 2007 guarantees every employee not less than twenty-one days of annual leave with full pay for each completed year of service. The Appellant’s uncontroverted evidence, given in his witness statement and confirmed in his testimony before the trial court, was that he did not take annual leave throughout his entire period of service from 2013 to 2020. The Respondent produced no leave application forms, no leave records, and no evidence of any kind that any leave was ever granted. The leave arrears as itemised in the Memorandum of Claim, computed at 1.75 days per month on a monthly salary of Kshs. 24,000.00 are found to be appropriate. The claimed sum of Kshs. 121,800.00 is accordingly awarded. 23.On compensatory damages, this Court has regard, pursuant to Section 49(4) of the Employment Act, 2007 to the following considerations. The Appellant served the Respondent for approximately seven years without any disciplinary record whatsoever. He was never warned, counselled, or subjected to any disciplinary process. The termination was effected without any of the procedural safeguards required by statute. The Appellant did not contribute to the termination of his employment. He was dismissed while ill and unable to defend himself, and the Respondent made no genuine effort to ascertain his circumstances or to afford him any process. He has not found comparable alternative employment and was the sole breadwinner of his family. Having regard to all of these considerations, this Court is satisfied that the maximum award of twelve months’ gross salary is warranted. Compensatory damages are accordingly awarded in the sum of Kshs. 288,000. 24.On the award of a Certificate of Service, Section 51 of the Employment Act, 2007 imposes a mandatory obligation on every employer to issue a departing employee with a Certificate of Service. This obligation arises by operation of law and is not contingent on the circumstances of the employee’s departure. The Respondent is directed to comply accordingly. 25.On the 5th issue, costs follow the event. The appeal having been allowed, the Appellant is entitled to the costs of this appeal and of the lower court proceedings. 26.I am therefore inclined to allow the appeal and order relief as follows;i.The Judgment and Decree of the trial court dated 15th July 2024 in MCELRC/E1953/2022 be and is hereby set aside.ii.A declaration be and is issued that the termination of the Appellant’s employment by the Respondent was unfair and unlawful.iii.One (1) months salary in lieu of notice…………………..……Kshs. 24,000.00iv.Leave arrears ……………………………………………..…..Kshs. 121,800.00v.Twelve (12) months salary as compensation for unfair termination ……………………………………………………….…....….Kshs. 288,000.00Total of Award …………………………………………...Kshs. 433,800.00vi.The Respondent be and is hereby ordered to issue the Appellant with a Certificate of Service within thirty (30) days of this judgment of court.vii.Interest on the sums awarded shall run at court rates from the date of this judgment until payment in full.viii.The costs of this appeal and of the trial court shall be borne by the Respondent. DELIVERED, DATED AND SIGNED THIS 14TH DAY OF MAY 2026.D. K. NJAGI MARETEJUDGEAppearances:Mr. Mutonyi instructed by Mutonyi Mulama & Company Advocates for the AppellantNo appearance for the Respondent