https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1786

Plumbing Systems Ltd v Murung'a (Appeal E102 of 2025) [2026] KEELRC 1786 (KLR) (29 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1786 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Appeal E102 of 2025 M Mbarũ, J June 29, 2026 Between Plumbing Systems Limited Appellant and Boniface Ondieki Murung'a Respondent (Being an appeal from the judgment of Hon. Anne Nyoike delivered on the 13 March 2025 in Milimani MCELRC NO. E203 of 2022) Judgment 1.The appeal arises from the judgment delivered on 13 March 2025 in Milimani MCELRC NO. E203 of 2022. The Appellant seeks that the judgment be set aside and the Respondent’s claim be dismissed with costs. 2.The background of the Appeal is the claim that the Respondent filed against the Appellant. 3.The claim was that the appellant employed the respondent as a plumber on 17 January 2018 on a monthly wage of Ksh. 11,640 calculated at Ksh. 485 per day for 24 days. The wage was thereafter increased to Ksh. 15,600 in May 2019, calculated in Ksh. 600 per day for 24 days. His case was that the Respondent unfairly terminated his employment on 4 May 2021 on the grounds of alleged redundancy. The claim was that this was unfair discrimination by the appellant for the respondent for following up on injuries he sustained while on duty. The appellant then threatened to terminate the employment contract unless he stopped pursuing the claim. He was hoodwinked into signing a document he thought would be beneficial, only to be later informed that it concerned a redundancy declaration. He claimed that there was no reasonable hearing and no opportunity to be informed of the reasons and circumstances for the termination of his employment. He was therefore entitled to claim unfair and discriminatory termination, and the alleged redundancy was due to his pursuit of recovery of Work Injury benefits compensation. He was therefore entitled to damages for unfair discriminatory termination. He claimed the following:a.Underpayment of salary and house allowance- Ksh. 263,429. 20.b.Overtime for holidays worked Ksh. 30,204.c.Unpaid leave days Ksh. 47,791.54/d.Claim for unfair termination of 12 months Ksh. 252,773.16/-e.Severance Pay for Redundancy Ksh. 39, 642.75 4.In Response, the appellant admitted that the respondent was employed as a general labourer and was paid a consolidated salary of Ksh. 15,600, which included a house allowance, and that he was paid in accordance with the requisite Regulation of Wages (General) Orders, and therefore not entitled to the claims made. The Appellant complied with all the requirements of law and natural justice in dealing with the Respondent and prayed that the claim be dismissed with costs. 5.The learned magistrate heard the parties and held that the Respondent had not demonstrated on a balance of probabilities that the Appellant terminated his employment because he was pursuing the work-related injuries he had sustained at work. The learned magistrate held that there was no evidence that the Appellant explained its reason for termination to the Respondent, or that it allowed the Respondent an opportunity for a hearing upon the termination decision. The court noted that even if the reason for termination was interpreted as redundancy, section 40 of the Employment Act required the employer to consult the Respondent before declaring his position redundant and to allow him an opportunity to be heard. This was not done. Judgment was entered for the respondent against the appellant in the following terms:a.The Respondent was unlawfully and unfairly terminated from employment. Leave days unutilized: Ksh. 47,791.54.b.Ksh 263, 429.20 underpayment and house allowance;c.Ksh. 91,597.50d.Interests on (b) above at court rates from the date of judgment.e.Costs to the Claimant. 6.Aggrieved by the judgment, the appellant filed the appeal on 5 grounds:1.The learned magistrate erred in law and fact in finding the claimant [respondent] was unlawfully and unfairly terminated.2.The learned magistrate erred in law and fact when he found that the claimant is entitled to payment for leave days unutilized, underpayment, house allowance, and damages for unfair termination, all totalling Ksh. 402,818.24.3.The learned magistrate erred in law and fact in finding the appellant had a valid reason to terminate the claimant’s employment while at the same time finding that the termination was unlawful.4.The learned magistrate erred in law and fact by failing to evaluate correctly the evidence adduced by the appellant and consequently arriving at a conclusion that has no legal or factual basis.5.The learned magistrate erred in law and fact by failing to consider the written submissions of the appellant in arriving at his judgment. 7.In the appeal, no written submissions were filed as directed by the court on 8 May 2026. Determination 8.This is a first appeal. The Court is required to review the record, reassess the finding, and reach a conclusion. However, consider that the trial court had the opportunity to see and hear the witness and thus grant this allowance. 9.The respondent’s claim was premised on facts that his employment was unfairly terminated on alleged grounds of redundancy. His challenge on this ground was that he had made a work-related injury claim and that the appellant had threatened him. He, however, admitted that he executed a document accepting the termination of employment, which read "huna kazi hapa." He claimed this was discriminatory since he was not given a valid reason and was not paid his terminal dues. He claimed underpayments, house allowance, overtime, leave days, severance pay, and compensation for unfair termination of employment. 10.The appellant admitted that the respondent was employed as a general labourer and paid in accordance with the Wages Orders. He accepted that there was no work, hence the termination of employment. The appellant filed various work records. 11.Part of the work records filed by the appellant before the trial was the employment contract dated 1 February 2019. It is a temporary contract. It covered one month's employment at a wage of Ksh. 12,600 inclusive of house allowance. 12.The position of employment was defined as a helper. 13.Several such contracts were issued. Save for changes in wages paid and the work site, the terms remained constant. Each contract is for a month and is temporary. 14.What stands out in each contract is that the respondent would be assigned to a different site under each temporary contract. 15.Contract dated 1 September to 30 September 2019, he was placed at Rosslyn.Contract dated 1 to 31 August 2019, he was placed at Kenvest.Contract dated 1 to 30 June 2019, he was placed at Kenvest. 16.This order was followed under each contract. The wages are graduated based on daily worksheets supported under a Muster Roll. 17.Through a letter dated 6 May 2021, the appellant terminated the employment of the respondent for the following reasons:… The purpose of this letter is to confirm the outcome of the recent review by PLUMBING SYSTEMS LTD (the employer) of its operational requirements and what this means for you. 18.As a result of the shortage of work at the site, we are unable to absorb your services. Regrettably, this means your employment will terminate. This decision is not a reflection of your performance.” 19.On the same date, 6 May 2021, a cash payment was made to the respondent. These payments included:a.Notice pay Ksh. 15,600.b.May leave salary for 1 to 5 Ksh. 2,400.c.Leave days Ksh. 8,400Total paid, Ksh. 26,400.The muster rolls confirm that the respondent worked until 6 May 2021. The worksheets are signed to this effect. 20.The employer is allowed under section 40 of the Employment Act (the Act) to terminate employment for operational reasons, including diminished work or the unavailability of work for the employee. However, under these provisions, due process requires that the employee be given notice where not unionised, and the labour officer be served accordingly. 21.Even in a case where the employer has a justified reason, such as employment requirements, the due process of the law in terminating employment is imperative, as held in Africa Nazarene University v David Mutevu & 103 others [2017] KECA 381 (KLR). The employee affected by operational reasons is hence entitled to notice together with the labour officer. 22.In Thomas De La Rue (K) Ltd vs David Opondo Omutelema [2013] eKLR, the court had occasion to consider the construction of subsections (a) and (b) to the effect that both required different kinds of notices. It stated as follows:It is quite clear to us that sections 40 (a) and 40 (b) provide for two different kinds of redundancy notifications depending on whether the employee is or is not a member of a trade union. Where the employee is a member of a union, the notification is to the union and the local labour officer at least one month before the effective redundancy date. Where the employee is not a member of the union, the notification must be in writing and sent to the employee and the local labour officer. Section 40 (b) does not stipulate the notice period as is the case in 40 (a), but in our view, a purposive reading and interpretation of the statute would mean the same notice period is required in both situations. We do not see any rational reason why the employee who is not a member of a union should be entitled to a shorter notice.” 23.Although a redundancy due to operational reasons existed as at 6 May 2021 for the appellant, the notice issued to the respondent fell short of the mandatory provisions of section 40 of the Act. Under section 43(2) of the Act, a termination of employment due to operational reasons that does not conform to the Act is unlawful, as held in Kenya Airways Ltd v Aviation & Allied Workers Union Kenya & 3 others [2014] KECA 404 (KLR):… redundancy is a legitimate ground for terminating a contract of employment provided there is a valid and fair reason based on operational requirements of the employer and the termination is in accordance with a fair procedure. As section 43(2) provides, the test of what is a fair reason is subjective. The phrase “based on operational requirements of the employer” must be construed in the context of the statutory definition of redundancy. What the phrase means, in my view, is that while there may be underlying causes leading to a true redundancy situation, such as reorganization, the employer must nevertheless show that the termination is attributable to the redundancy – that is that the services of the employee has been rendered superfluous or that redundancy has resulted in abolition of office, job or loss of employment.” 24.For the lapse in adhering to the due process under section 40(1) of the Act, the finding that there was unfair termination of employment is justified. 25.For redundancy, severance pay is due since it arises from operational reasons rather than performance, as noted in the appellant's notice. 26.In the payment of terminal dues, the appellant paid in lieu of notice. This adhered to section 40(1) (f) of the Act. Save for the lapse in due process, there was a valid reason that justified the termination of employment. See Cargill Kenya Limited v Mwaka & 3 others [2021] KECA 115 (KLR). 27.In assessing the various claims made, the records submitted by the appellant demonstrate that until December 2019, he was under a term contract. The remainder of his employment period from January 2020 to 6 May 2021, there is no contract save for the muster rolls. 28.Employment regulated by written contracts began and ended on the terms thereof. Such formed a different series of employment relationships, separate from the ones for which he only signed the muster roll. 29.The claims going back to the term contracts ending December 2019 should have been addressed pursuant to section 89 of the Act. See The German School Society & another v Ohany & another [2023] KECA 894 (KLR) and Teresa Carlo Omondi v Transparency International-Kenya [2017] eKLR, which hold that a fixed-term contract is legitimate and lawful and starts and ends on its terms. Any claim arising therefrom must be addressed in that context. 30.Thus, any claims arising from the fixed-term contracts issued to the respondent by the appellant were regulated under section 89 of the Act. The claims relating to alleged underpayment, overtime, leave and house allowance being continuing injuries were thus regulated. 31.Thus, having worked from January 2020 to May 2021, for the one full year of service, the court finds that compensation of one month's gross wages is sufficient. 32.As a general worker defined as a helper, the wage due in May 2021 was Ksh. 13,572.90 and the 15% house allowance, Ksh. 2,035.95 gross wage Ksh. 15,608.85. 33.The appellant was paid Ksh. 15,600 per month. The due wage is Ksh. 15,608.85, thus less by Ksh. 8.85 per month. 34.The compensation thus due is Ksh. 15,608.85. 35.Based on section 89 of the Act, there was an underpayment of wages, which is a continuing injury and should have been addressed within 12 months; thus, the due underpayment, inclusive of the house allowance, is Ksh. 8.85 x 12 = Ksh. 106.02.On the claim for work during public holidays, the appellant paid a daily wage. This is tabulated under the muster roll. Ordinarily, public holidays are special days published by the Minister. They cannot form a general claim. Each public holiday at work must be particularised. 36.Regarding the claim for leave days, as outlined above, the terminal dues paid on 6 May 2021 include a tabulation of leave days. The claim thereof is not justified. 37.Severance pay applies only to the period during which the appellant was under a written term contract. From January 2020 to May 2021, there is one full year, and under section 40(1)(g) of the Act, severance pay is due at 15 days for the full year, all at Ksh. 7,804.45. 38.Before the conclusion, the respondent raised the issue that he was discriminated against by the appellant in the termination of his employment and that he had filed a work injury claim, which led to threats from the appellant. The particulars of the discriminatory treatment were not particularised. 39.In response, the appellant submitted records of the work-related injury and the payment to the respondent. This addressed his claim for a work injury, including a payment on 8 August 2019. Work continued after that payment until the notice dated 6 May 2021. 40.As outlined above, there were valid operational reasons for terminating employment. The work injury was addressed with payment in 2019. Alleging that the work injury claim was the source of discriminatory treatment in May 2021 is far-fetched. 41.Regarding costs, the appeal was partially successful, having failed to file written submissions as directed; each party should meet its costs from the appeal and the trial court. 42.Accordingly, judgment in Nairobi (Milimani) CMELRC No. E203 of 2022 is hereby reviewed in the following terms:a.Employment terminated unlawfully.b.Compensation Ksh. 15,608.85.c.Underpayment inclusive of house allowance Ksh. 106.02.d.Severance pay Ksh. 7,804.45.e.For the appeal and trial court, each party to bear its costs. DELIVERED IN OPEN COURT THIS 29TH DAY OF JUNE 2026M. MBARŨJUDGEIn the presence of:Court Assistant: Samuel Maruga……………………………………………… and………………….…………………………..