https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1599

Maru v Baraton College (The Board of Management) & another (Employment and Labour Relations Appeal E003 of 2024) [2026] KEELRC 1599 (KLR) (8 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1599 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Eldoret Employment and Labour Relations Appeal E003 of 2024 MA Onyango, J June 8, 2026 Between Paul Kimibei Maru Appellant and Baraton College (The Board of Management) 1st Respondent Bethwel Kimutai (Principal Baraton College) 2nd Respondent (Being an appeal from the judgment delivered by Hon. P.N. Areri (SPM) on 4th January 2024 in Eldoret CMELRC No. 288 of 2019) Judgment 1.The Appellant herein was the Claimant in Eldoret CMELRC No. 288 of 2019, wherein he instituted proceedings against the Respondent by way of a Statement of Claim dated 18th September 2019 seeking compensation for what he alleged to be the unfair termination of his employment by the Respondent. 2.Upon hearing the parties, the trial court delivered its judgment on 4th January 2024 dismissing the Appellant’s suit with costs on the basis that the Appellant had failed to prove his claim against either of the Respondents. 3.Dissatisfied with the said judgement, the Appellant instituted the instant appeal vide his Memorandum of Appeal dated 29th January 2024 on the following grounds of appeal:i.The learned trial magistrate erred in law and in fact by dismissing the claim without any basis and justification in law.ii.The Learned trial magistrate erred in law and in fact by dismissing the claim at the face and against the heavy and uncontroverted evidence led by the Appellant since the Respondents did not call any witness in court to rebut the appellant's strong case.iii.The Learned trial magistrate erred in Law and in fact by failing to analyze and consider the evidence tendered and failing to appreciate that in employment matters the employer is one tasked with the custody of the employment documents and that the employer is called upon to justify that the termination of an employee was fair and lawful.iv.The trial magistrate erred in law and in fact by holding that it was incumbent upon the Appellant to lead evidence and prove to the required standards that he was not paid the monthly salary in full, he was underpaid, that he worked overtime, that he was not paid for overtime worked and that he was unprocedurally dismissed from employment yet the Respondents as employers were the custodians of employment documents and were required by law to justify that the dismissal was fair, lawful and procedurally fair.v.The learned trial magistrate erred in law and in fact by failing to exercise his discretion judiciously in dismissing the Appellant's claim without any supporting evidence and when his decision is not supported by any legal backing.vi.The learned trial magistrate erred in law and fact by finding that the evidence led by the appellant was uncontroverted and at the same breath finding that the claim was without basis and merit dismissing the same with costs to the respondents who did not testify in court.vii.The learned trial magistrate erred in law and in fact by laying blame on the appellant in the absence of contract of employment yet the responsibility of preparing and issuing the same legally lies with the Respondents.viii.The learned trial magistrate erred in law and in fact by openly being biased against the Appellant.ix.The learned trial magistrate erred in law and in fact by failing to act fairly, applying the wrong principles of law and legal provisions thereby occasioning miscarriage of justice. 4.Consequently, the Appellant prays for orders that: -i.This Appeal be allowed and the ruling delivered on 4th day of January 2024 be and is hereby set aside and the Appellant's claim dated 18/9/2019 be allowed as prayed.ii.Costs of the appeal with interest be borne by the Respondents.iii.Further or other orders as the Honourable Court shall deem fit. Analysis 5.This being a first appeal, this Court has the duty to analyze and re-examine the evidence adduced in the lower Court and reach its own conclusion bearing in mind that it neither saw nor heard the witnesses testify and make due allowance for that. 6.In Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, the Court stated as follows:-“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” 7.Vide a Statement of Claim dated 18th September 2019, the Claimant (now the Appellant) averred that he was employed by the 1st Respondent on 1st May 2018 as a lecturer for P1 and Diploma students as well as a Physical Education instructor and tutor at a gross monthly salary of Kshs. 25,000. 8.The Appellant contended that, despite diligently discharging his duties, the Respondents intermittently failed to pay his salary, resulting in accrued salary arrears amounting to Kshs. 135,575 by the time he instituted the suit. 9.He further averred that he continued rendering his services notwithstanding the persistent salary delays until 14th June 2019 when the 2nd Respondent allegedly telephoned him and informed him that his employment had been terminated. According to the Appellant, no reason was given for the termination. 10.The Appellant stated that following the termination, he made several attempts to inquire from the Respondents about the status of his employment and to demand payment of his salary arrears, but his efforts were met with what he described as cold receptions and unfulfilled promises. 11.It was the Appellant's case that he served the Respondents for approximately thirteen months and that his employment was unlawfully terminated through a telephone call, after which the Respondents failed to settle his salary arrears and terminal dues. 12.The Appellant maintained that the Respondents terminated his employment without complying with the provisions of the Employment Act, 2007 and the rules of natural justice, in that he was neither issued with notice nor afforded an opportunity to be heard. 13.The Appellant therefore sought to be compensated for the unfair and unlawful termination, and to be paid his terminal dues which he particularized as hereunder:i.One month salary in lieu of notice …. Kshs. 25,000ii.Salary arrears ………………...……….... Kshs. 135,575iii.Outstanding overtime pay ………..….. Kshs 195,000iv.12 months compensation forunfair termination ………………….….. Kshs 300,000v.Salary underpayments …………..…… Kshs. 455,000Total ………………………..…………….. Kshs. 1,110,575 14.Consequently, the Appellant sought the following reliefs:i.A declaration that the termination process as carried out by the Respondents was unlawful and or unfair and that during his employment with the Respondents, he was not remunerated as required by law.ii.Payment of the sums of money claimed aboveiii.Costs and interestsiv.Any other relief the Honourable Court may deem fit to grant 15.In response, the 1st and 2nd Respondents filed a Response to the Claim dated 24th February 2022, in which they denied the Appellant’s claim. They averred that, in June 2019, the Appellant suddenly disappeared from his workplace without any reason and that, despite their efforts to trace his whereabouts, he could not be found. 16.The Respondents therefore maintained that the Appellant was not entitled to the reliefs sought and urged the trial court to dismiss the Claim with costs. The Evidence adduced 17.At the hearing, the Claimant testified as CW1. He adopted his witness statement as part of his evidence-in-chief and relied on the documents filed in support of his claim. 18.Upon cross-examination by Counsel Lutta, the Claimant testified that he was employed by the Respondents from 1st May 2018 until 14th June 2019. He further testified that on 14th June 2019, he received a telephone call instructing him not to report to work. He stated that he was claiming salary arrears amounting to Kshs. 135,575. He conceded that he had not produced any documents to support the claim for the alleged arrears. 19.He further stated that he was claiming overtime pay at the rate of Kshs. 15,000 per month, contending that he worked across the Respondent's three campuses. However, he conceded that he had never demanded overtime pay during the subsistence of his employment and had not produced any evidence to demonstrate that he had worked overtime. 20.The Claimant also testified that he was underpaid, stating that he earned a monthly salary of Kshs. 25,000 instead of Kshs. 35,000, which he believed was the applicable salary. He further stated that he was 70 years old at the time he was terminated from employment. 21.On re-examination, the Claimant reiterated that his employment was terminated through a telephone call in which he was instructed not to report to work. 22.The Respondent did not call any witness to testify in support of its defence and elected to rely solely on its Statement of Response and the documents on record. 23.Thereafter, the parties were directed to file written submissions, which they duly did. Upon considering the pleadings, evidence and submissions on record, the trial court delivered its judgment on 4th January 2024, dismissing the Claimant's suit. The Appeal 24.The appeal was disposed of by way of written submissions pursuant to the directions of this court issued on 16th December 2025. Only the Appellant filed submissions. 25.In his submissions dated 24th April 2026, the Appellant submitted that the trial court erred in dismissing his claim despite the evidence on record establishing an employment relationship between the parties and the circumstances surrounding the termination of his employment. Counsel argued that the learned trial magistrate failed to properly apply Sections 41, 43 and 45 of the Employment Act, 2007, which place upon an employer the burden of proving the reasons for termination and demonstrating that the termination was carried out in accordance with a fair procedure. 26.It was further submitted that, having found that the Appellant was an employee of the Respondents, the trial court fell into error by simultaneously holding that the Appellant had failed to prove his employment, remuneration and termination. According to the Appellant, the Respondents did not adduce any evidence to rebut his testimony and therefore his evidence remained uncontroverted. 27.The Appellant also contended that the Respondents, as employers, were under a statutory obligation to keep and produce employment records. Reliance was placed on Sections 10 and 74 of the Employment Act and Section 112 of the Evidence Act to argue that the failure by the Respondents to produce employment records warranted the drawing of an adverse inference against them. It was further submitted that, pursuant to Section 10(7) of the Employment Act, the burden of disproving the terms of employment alleged by the Appellant shifted to the Respondents upon their failure to produce a written contract of employment. 28.The Appellant further submitted that the alleged termination was communicated through a telephone call and was therefore not effected in accordance with the law. Counsel maintained that the trial court failed to properly evaluate the evidence and the applicable law, thereby arriving at an erroneous decision that occasioned a miscarriage of justice. 29.Consequently, the Appellant urged this Court to allow the appeal, set aside the judgment of the trial court and substitute it with an order allowing the claim as prayed. Determination 30.I have considered the Record of Appeal and the submissions filed by the Appellant. It is not disputed that the Appellant worked for the Respondents. Indeed, the trial court accepted that an employment relationship existed between the parties. The issues for determination in my view are: -i.Whether the Appellant proved that his employment was terminated by the Respondents or whether he absconded dutyii.What reliefs should issue? Whether the Appellant proved that his employment was terminated by the Respondents or whether he absconded duty 31.The Appellant's case was that he was employed by the Respondents on 1st May 2018 and served continuously until 14th June 2019, when the 2nd Respondent allegedly telephoned him and instructed him not to report back to work. 32.The Respondents on the other hand denied unlawfully terminating the Appellant’s employment and maintained that the Appellant absconded duty. 33.Under Section 47(5) of the Employment Act, an employee bears the burden of establishing the fact of dismissal, while the employer bears the burden of justifying the grounds for the dismissal. Similarly, Sections 43 and 45 of the Act require an employer to prove the reasons for termination and to demonstrate that the termination was effected in accordance with a fair procedure. 34.Section 43 of Employment Act 2007 provides as follows:“43.Proof of reason for termination(1)In any claim arising out of termination of a contract, the employer shall be required 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.(2)The reason or reasons for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist, and which caused the employer to terminate the services of the employee”. 35.Section 44(4)(a) of the Employment Act 2007 provides that an employer may summarily dismiss an employee if:SUBPARA (a)without leave or other lawful cause, an employee absents himself from the place appointed for the performance of his work; 36.Section 44(4)(a) is specific that absence from work per se does not constitute a ground for dismissal unless it is without leave or other lawful cause. 37.In their defence, the Respondents pleaded that the Appellant had absconded duty from employment in June 2019 and that efforts to trace him were unsuccessful. 38.For an employer to plead that an employee has absconded duty in its defence, it is now trite that the employer must demonstrate and prove that it took steps to find out the whereabouts of the employee. In the case of Stanley Omwoyo Onchweri v BOM Nakuru YMCA Secondary School [2015] eKLR the court held that the employer must demonstrate what measures were put in place to trace the employee who is alleged to have absconded duty. 39.In the instant case, the Respondents did not tender any evidence to prove that the Appellant absconded duty as alleged. It further did not adduce evidence of the efforts it made in tracing the Appellant after he allegedly absconded duty. In the absence of such proof, the allegation of desertion remained unproved. 40.Further, Sections 10 and 74 of the Employment Act impose upon employers a statutory duty to keep employment records. Section 10(7) specifically provides that where an employer fails to produce a written contract or written particulars of employment, the burden of disproving an alleged term of employment shifts to the employer. The Respondents neither produced employment records nor called any witness to challenge the Appellant's testimony regarding the circumstances under which his employment came to an end. 41.On his part the Appellant produced a time table which proves that he was employed by the Respondent. He further produced his bank statement which has evidence that he was paid salary by the Respondent for several months thus he proved the existence of an employment relationship. 42.From the evidence on record, the learned trial magistrate fell into error by placing the entire burden upon the Appellant notwithstanding the failure by the Respondents to discharge their statutory obligations under the Employment Act. Having accepted the existence of an employment relationship and in the absence of any evidence from the Respondents to justify the termination or prove desertion of duty, the court ought to have found that the Respondent failed to prove that the Appellant was not unfairly terminated. 43.Section 47(5) provides for the burden of proof in employment cases as follows:(5)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. 44.The Appellant having proved that there was termination of his employment as admitted by the Respondent, it was therefore the burden of the Respondent to prove that the termination was not unfair, which it failed to do as it adduced no evidence at all to support its averments that the Appellant absconded duty. 45.I thus find that on the evidence on record, the Respondent terminated the employment of the Appellant unfairly within the meaning of Sections 41, 43 and 45 of the Employment Act. 46.I therefore find that the Appellant established, on a balance of probabilities, that his employment was unfairly terminated. To that extent, the appeal succeeds. What reliefs should issue? 47.Having found that the Appellant's employment was unfairly terminated, the Court must now determine the appropriate remedies available to him. 48.The Appellant prayed for salary arrears, overtime pay, underpayments, payment in lieu of notice and compensation for unfair termination. 49.Section 35 of the Employment Act provides for the issuance of notice before termination of employment or payment in lieu thereof. Section 49(1) further provides for payment of notice to an employee who has been unfairly terminated from employment. The Respondents did not demonstrate that the Appellant was issued with any notice prior to the termination of his employment. Having found the termination unfair, the Appellant is therefore entitled to one month's salary in lieu of notice calculated on the basis of his last salary of Kshs. 25,000. 50.On the prayer for salary arrears, the Appellant pleaded and testified that he was owed salary arrears amounting to Kshs. 135,575. Although he did not produce documentary evidence in support of the claim, employment records, including payroll records, are by law maintained by the employer who was under statutory duty to produce the records. The Appellant could not have been expected to produce records which were never issued to him by the Respondent, who is the custodian of such records by law. 51.The Respondents neither produced any employment records nor called any witness to controvert the Appellant's evidence regarding the alleged arrears. In the circumstances, and pursuant to Sections 10(7) and 74 of the Employment Act, the Court finds that the claim for salary arrears in the sum of Kshs. 135,575 was established on a balance of probabilities and is therefore awarded. 52.The claims for overtime pay and underpayments, however, were not supported by sufficient evidence. The Appellant did not place before the Court material from which the Court could ascertain the hours allegedly worked in excess of the statutory limits of 52 hours per week. From the time table produced by the Appellant, lessons started at 7.30 am and ended at 4 pm. This means that if he was at work from 7.30 am every day from Monday to Friday and left at 4.00 pm, he worked for a total of 8 and a half hours less one-hour break for lunch. He thus worked for less than 52 hours a week. The claim for overtime was thus not proved. 53.The Appellant further did not adduce any evidence to prove that he was underpaid, having not satisfactorily explained where he obtained the figure of 35,000 which he alleged should have been his rightful salary. The claim for underpayment was thus not proved. 54.With respect to compensation for unfair termination, the Court has considered the provisions of Section 49(1)(c) as read together with Section 49(4) of the Employment Act. The Court has taken into account the period served by the Appellant, the circumstances under which his employment was terminated and the Respondents' failure to comply with the procedural and substantive requirements of the law. The court has further noted the age of the Claimant who was 70 years old as per the evidence on record. In the circumstances, an award equivalent to four (4) months’ gross salary is fair and reasonable. Accordingly, the Appellant is awarded Kshs. 100,000 as compensation for unfair termination. 55.In the premises, the appeal succeeds and the judgment of the trial court is hereby set aside. In its place, judgment is entered for the Appellant against the Respondents jointly and severally as follows:i.One month’s salary in lieu of notice ............ Kshs. 25,000ii.Salary arrears ……………………………………. Kshs. 135,575iii.Compensation for unfair termination equivalentto six (6) months’ salary .............................. Kshs. 100,000Total ............................................... Kshs.260,575 56.The claims for overtime pay and underpayments are hereby dismissed. 57.The Appellant shall have the costs of the suit before the trial court and the costs of this appeal 58.Interest shall accrue at court rates from the date of the judgment in the trial court until payment in full. DATED, SIGNED AND DELIVEREDON THIS 8TH DAY OF JUNE 2026M. ONYANGOJUDGE