https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1820

Pride Kings Services Ltd v Fancy (Appeal E109 of 2025) [2026] KEELRC 1820 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1820 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kisumu Appeal E109 of 2025 Nzioki wa Makau, J June 25, 2026 Between Pride Kings Services Ltd Appellant and Chepkemoi Fancy Respondent (Being an appeal from the judgment and decree of Hon. Amos Kiprop Mokoross SPM in Tamu MELRC No. E007 of 2024 delivered on 28th November 2025) Ruling 1.This appeal arises from the Judgment of Hon. Amos Kiprop Mokoross SPM delivered on 28th November 2025 in Tamu MELRC No. E007 of 2024, Chepkemoi Fancy v Pride Kings Ltd. Aggrieved by that decision, the Appellant lodged a Memorandum of Appeal dated 11th December 2025 contending that the Learned Magistrate:i.Completely misunderstood and improperly analysed the evidence on record, thereby arriving at erroneous conclusions of fact and law.ii.Erred in fact and in law by awarding the sum of Kshs. 8,109/- as 1 months’ pay in lieu of notice without taking into consideration that the same was not proved.iii.Erred in fact and law by awarding Kshs. 44,033.76 house allowance without taking into consideration that the same was not proved.iv.Totally misunderstood and wrongly evaluated the evidence before him 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 and arrive at an independent conclusion and award it costs of the appeal. The appeal was canvassed by way of written submissions. Appellant’s Submissions 3.In support of the appeal the Appellant identifies two issues for determination namely:a.Whether the Respondent was unlawfully terminated from employment; andb.Whether the Respondent was entitled to the remedies awarded by the Trial Court. 4.On the question of termination, the Appellant submits that the Respondent deserted duty and, consequently, the Trial Court erred in finding that she had been unlawfully terminated. It contends that both the pleadings and the evidence demonstrated that following the termination of its contract with Chemelil Sugar Company, the Respondent was instructed to report to the Appellant's headquarters for redeployment but failed to do so. The Appellant further submits that a memorandum requiring affected employees, including the Respondent, to report for redeployment was displayed on the notice board, but the Respondent declined to comply. In those circumstances, the Appellant argues that the Respondent was guilty of gross misconduct and was therefore undeserving of compensatory damages under section 49 of the Employment Act. 5.To buttress this position, the Appellant relies on section 47(5) of the Employment Act, which places the burden upon an employee to prove the occurrence of unfair termination, as well as section 43(1) of the Act, which imposes a corresponding obligation upon the employer to justify the reasons for termination, failing which such termination is deemed unfair. Regarding the remedies awarded, the Appellant submits that the award of compensation for unlawful termination was erroneous in view of the Respondent's desertion of duty. 6.With respect to underpayment, the Appellant contends that the trial court erred in computing the award from 1st May 2018 instead of 1st September 2021, which, according to both the pleadings and the evidence, was the date on which the Respondent commenced employment. On the issue of annual leave, the Appellant relies on section 28 of the Employment Act and submits that any award under this head ought to have been limited to the Respondent's monthly salary of Kshs. 8,636.30 as opposed to the sum of Kshs. 17,151/- awarded by the Trial Court. Concerning house allowance, the Appellant submits that the Trial Court erred in making an award for periods falling outside the three-year limitation period prescribed under section 90 of the Employment Act. Consequently, it urges the Court to allow the appeal with costs. Respondent’s Submissions 7.In response, the Respondent identifies the following issues for determination:i.Whether the Trial Court properly evaluated the evidence;ii.Whether the awards made by the Trial Court were lawful and proved;iii.Whether the appeal meets the threshold for appellate interference; andiv.Who should bear the costs of this appeal. 8.On the first issue, the Respondent submits that the Trial Magistrate properly evaluated both the pleadings and the evidence on record and correctly concluded that she had been constructively dismissed. She points to the testimony of the Appellant's witness, who acknowledged that her salary had remained unpaid for three months and failed to produce evidence demonstrating that the outstanding salary arrears had been settled. The Respondent asserts that the persistent failure to pay salary constituted a fundamental breach of the employment contract, thereby entitling her to treat the contract as terminated. She further maintains that the allegation of desertion was unsupported by evidence, noting that no notice to show cause was issued, no disciplinary proceedings were undertaken, and no evidence of redeployment was produced. To buttress its position reliance is placed on Milton M. Isanya v Aga Khan Hospital Kisumu [2017] eKLR, where the Court held that constructive dismissal occurs where an employer creates a hostile working environment or otherwise frustrates an employee to the extent that resignation becomes inevitable. The Respondent also relies on Joseph Aleper & another v Lodwar Water and Sanitation Company Limited [2015] eKLR; Western Excavating (ECC) Ltd v Sharp [1978] ICR 221; Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd [2013] KEELRC 920 (KLR); Benuel Mariera v Awand Enterprises Limited [2014] eKLR; Maria Kagai Ligaga v Coca Cola East and Central Africa Limited [2015] KECA 394 (KLR); and Kenneth Kimani Mburu & another v Kibe Muigai Holdings Limited [2014] eKLR, for the proposition that an employer's conduct which fundamentally breaches the employment contract or destroys the relationship of trust and confidence entitles an employee to resign and claim constructive dismissal. 9.As regards the awards granted by the Trial Court, the Respondent submits that they were lawful, justified, and firmly grounded in the evidence adduced at trial. In particular, she contends that the awards for notice pay, underpayment, house allowance, unpaid leave, salary arrears, and compensation for unfair termination were all supported by uncontroverted evidence. She further submits that the Trial Court's refusal to award overtime pay, compensation for unpaid off days, and public holiday dues for want of proof demonstrates that the Court carefully and judiciously evaluated the evidence before it. 10.On whether the appeal meets the threshold for appellate interference, the Respondent submits that the Appellant has failed to demonstrate any misapprehension of the evidence, misapplication of legal principles, or any other error warranting interference by this Court. She asserts that the appeal merely invites the Court to reach a different conclusion on the same evidence, which, without more, is insufficient. In support of this proposition, reliance is placed on Selle & another v Associated Motor Boat Company Ltd & others [1968] EA 123, where the Court held that an appellate court should not interfere with findings of fact unless they are based on no evidence or stem from a misapprehension of the evidence. On costs, the Respondent relies on section 27 of the Civil Procedure Act and submits that costs follow the event and should therefore be awarded to her. Consequently, she urges the Court to dismiss the appeal with costs. Disposition 11.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] 12.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. 13.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. 14.The Court finds that there was constructive dismissal as the non-payment of salaries for 3 months was a fundamental breach of the employment contract which in essence repudiated it as held in the case of Maria Ligaga v Coca Cola East and Central Africa (supra). Further, 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. It does not matter the form of frustration. In some instances, it leads to what an employer may term as abscondment from work which is a form of resignation where the work environment is so toxic that the worker has no option but to stay away. 15.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. 16.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. 17.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. For instance, the Learned Magistrate declined to make any awards for unpaid holidays and off days. 18.The only error the Learned Magistrate fell into was minor. It was on 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 as follows: Kshs. 17,151/- as unpaid leave days, Kshs. 18,134/- as unremitted salary, Kshs. 68,550.10 as underpayment and house allowance in the sum of Kshs. 25,263.10. As the Court noted before, upon considering the evidence adduced, the prayers for payment of unpaid public holidays and unpaid off days were disallowed. Additionally, there was a rejection of the payment of sums claimed under all the heads the Respondent was successful under with the Learned Magistrate allowing some and disallowing some of the claims as tabulated in the memorandum of claim. I find nothing wrong with the approach taken by the Learned Magistrate save for the errors in calculation/computation as adverted to in preceding paragraphs of my judgment. 19.The final result is that the Appeal only succeeds to the extent that the Judgment and decree of the Trial Court is substituted with a Judgment for the Respondent before me to the extent that there is judgment entered for the Respondent against the Appellant for:a.Kshs. 13,697.67 as unpaid leave days,b.Kshs. 68,550.10 as underpayment, andc.Kshs. 25,263.10 as house allowance. 20.The award on unremitted salaries is upheld. I also uphold the decision to award compensation in the sum ordered by the Learned Magistrate in the matter as well as the award of costs and interest as per the Judgment of the Court at Tamu. There will be no order as to costs on this Appeal meaning that parties will bear their own costs for the Appeal before me.It is so ordered. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF JUNE 2026NZIOKI wa MAKAU, MCIArb.JUDGE