Pride Kings Services Limited v Koniala (Appeal E111 of 2025) [2026] KEELRC 2267 (KLR) (31 July 2026) (Judgment)

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT *&* LABOUR RELATIONS** **COURT OF KENYA AT KISII** **APPEAL NO. E111 OF 2025** PRIDE KINGS SERVICES LIMITED…..…………….….….…**APPELLANT** **VERSUS** SIMEON OCHUNG KONIALA.....………...........................**RESPONDENT** *(Being an appeal from the judgment and decree of Hon. Amos Kiprop Mokoross (SPM) in Tamu MELRC No. E003 of 2024 delivered on 28th October 2025)* **JUDGMENT** 1. This appeal arises from the Judgment of Hon. Amos Kiprop Mokoross SPM delivered on 28th October 2025 in **Tamu MELRC No. E003 of 2024,** **Simeon Ochung Koniala *v* Pride Kings Ltd**. Aggrieved by that decision, the Appellant lodged a Memorandum of Appeal dated 6th August 2025, setting out the following grounds: * + 1. *That the Learned Magistrate completely misunderstood the evidence before him, wrongly analysed the evidence and therefore came to wrong conclusions of fact and law.* 3. *That the Learned Magistrate totally misunderstood and wrongly evaluated the evidence before her and therefore arrived at a wrong conclusion.* 2. On the strength of the foregoing grounds, the Appellant urges this court to allow the appeal, re-appraise the evidence, arrive at an independent conclusion and award it costs of the appeal. The appeal was canvassed by way of written submission. There was no representation on the part of the Respondent. Appellant’s Submissions 1. The Appellant identifies the following issues for determination: * + 1. Whether the Respondent was unlawfully terminated; and 2. Whether the Respondent was entitled to the award of damages and other reliefs granted by the Trial Court. 2. On the first issue the Appellant submits that the Trial Court erred in finding that the Respondent had been unlawfully terminated. It relies on section 47(5) of the Employment Act 2007, arguing that the burden lay on the Respondent to prove that his employment had been unfairly or wrongfully terminated before the employer was required to justify the reasons for termination under sections 43 and 45 of the Act. The Appellant contends that the evidence on record showed that the Respondent was instructed to report to the Appellant’s headquarters for redeployment, but he declined to do so despite a memo having been displayed on the notice board. It submits that the Respondent voluntarily failed to report for duty and effectively deserted his employment. Consequently, it asserts that there was no termination by the Appellant and that the Respondent failed to establish unlawful termination. The Appellant further submits that the Respondent’s conduct amounted to desertion of duty and gross misconduct and that he wholly contributed to the separation from employment. It therefore maintains that the Respondent was not entitled to compensation under section 49 of the Employment Act and that the Trial Court erred in awarding damages for unfair termination. 3. On the second issue the Appellant submits that the award of compensation for unfair termination was excessive and erroneous because the Respondent had deserted his duties and was therefore responsible for the separation from employment. 4. On the issue of underpayment, the Appellant submits that the trial court misapprehended the evidence regarding the period of employment. It submits that the Respondent pleaded and testified that he was employed from 1st September 2021 to 24th January 2024, but the trial court calculated underpayments from 1st May 2018 to 1st May 2022 and thereafter to the date of termination. The Appellant contends that this resulted in an excessive and prejudicial award. 5. With respect to leave pay, the Appellant relies on section 28 of the Employment Act, 2007 and submits that the trial court incorrectly used a monthly salary of Kshs. 17,151/- in calculating leave dues instead of Kshs. 8,636.30, thereby arriving at an award that was contrary to the statute and excessive. 6. Regarding house allowance, the Appellant submits that claims for unpaid house allowance are subject to the limitation period prescribed under section 90 of the Employment Act, 2007. It asserts that the claim constituted a continuing injury and that any entitlement was limited to the three years preceding the filing of the suit. The Appellant therefore contends that the Trial Court erred in awarding house allowance beyond the statutory limitation period. In conclusion, the Appellant urges the Court to allow the appeal with costs. Disposition 1. On appeal a Court has to analyse the evidence noting it did not hear the parties and make allowance for that. In the case of **Selle *v* Associated Motor Boat Co. Ltd [1968] EA 123** and restated in the case of **Kenya Ports Authority *v* Kuston (Kenya) Limited [2009] 2 EA 212** where the Court of Appeal rendered itself as follows: "*On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.*" [Underline for emphasis] 1. It is trite that the responsibility of this Court is to rule on the evidence on record and not to introduce extraneous matters that were not dealt with by the parties in the evidence they presented before the Learned Magistrate at Tamu. Having properly warned myself that I neither saw nor heard the Appellant nor the Respondent testify in trial, I have carefully evaluated the evidence the parties presented in the Trial Court, and which evidence and documents in support thereof, are before this Court and I have come to the following determination. 2. There was constructive dismissal as the non-payment of salaries for 3 months was a fundamental breach of the employment contract. In the case of **Milton M. Isanya *v* Aga Khan Hospital Kisumu** (*supra*), the Court held that constructive dismissal occurs where an employer creates a hostile working environment or otherwise frustrates an employee. In my considered view, the Learned Magistrate properly evaluated both the pleadings and the evidence on record and correctly concluded that the Respondent had been constructively dismissed. The Learned Magistrate therefore did not err at all in holding that there was constructive dismissal and awarding compensation for the same. The only issue that gives the Court pause is the limitation of actions in terms of section 89 of the Employment Act in respect of continuing injury. The periods outside the window for preferring a claim for continuing injury would of necessity fail. 3. The Learned Magistrate after hearing the parties and considering the evidence and the law awarded unpaid leave days, unremitted salary, underpayment of wages and house allowance. I do not discern any error in the way the Learned Magistrate disallowed some claims and allowed others. The only discernible error in the judgment is the computation of the sum payable to the successful Respondent. In this case, the amounts due bearing in mind the limitation period imposed by section 89 of the Employment Act are capped at 12 months for leave and unpaid salary since the continuing wrong injury should have been presented within 12 months and any claim made outside the period of 12 months from the cessation thereof is time barred. 4. In this Appeal, the Appellant is partly successful in that the sums awarded are revised as follows: * + 1. Unpaid leave – Kshs. 13,697/- 2. House allowance Kshs. 33,070.05 5. I uphold the decision on underpayment at Kshs. 106,510/- and the award of compensation ordered by the Learned Magistrate in this case. As the Court gave an award of costs and interest as per the Judgment of the Court at Tamu, I uphold the award of costs at the Trial Court. There will be no order as to costs on this Appeal. It is so ordered. **Dated this 30th day of July 2026 and delivered on 31st July 2026** **Nzioki wa Makau, MCIArb.** **JUDGE**