https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2301

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **ELRC APPEAL NO. E326 OF 2024** *(Before D. K. N. Marete)* **R.K. SANGHANI……………………………………...................……………APPELLANT** **VERSUS** **GREGORY KIHUMBA WAGURA………………………………………RESPONDENT** **JUDGMENT** This matter was originated by way of a Memorandum of Appeal dated 20th November, 2024. It is a derivation of the judgment delivered on 28th October, 2024 at Nairobi in CMELRC No. E1422 of 2022. It comes out as thus; *1. The Learned trial magistrate erred in both fact and law in failing to hold that the Respondent had a written contract of employment that commenced on 3rd September 2019.* *2. The Learned trial magistrate erred in both fact and law in finding the Respondent’s termination was unfair when the Respondent failed to plead and adduce evidence of who exactly terminated him, what exactly was said, the time when and place where he was verbally terminated.* *3. The Learned trial magistrate erred in law and fact in concluding that the Respondent had been unfairly terminated when the Respondent did not call any independent eyewitness to corroborate his assertion of verbal termination.* *4. The Learned trial Magistrate erred in law and fact in not finding that the Claimant was employed as a ten wheeler driver in Kokotoni, Kilifi County and was paid a gross salary of Kshs. 20,000 which was above the applicable minimum wage.* *5. The Learned trial Magistrate erred in law and fact in finding that the Claimant was terminated from employment without notice or disciplinary process when there was no sufficient evidence to support that finding.* *6. The Learned trial Magistrate erred in law and fact in dismissing the Appellant’s defence of desertion in its entirety without taking into consideration the following factors:* 1. *The Respondent deserted duty without any explanation;* 2. *The Appellant had made attempts to reach out to the Respondent to no avail;* 3. *The Appellant reported the desertion to the Ministry of Labour* 4. *After desertion the Respondent never returned to work.* *7. The Learned trial Magistrate erred in law and fact in finding that the Respondent had proved his claim of underpayment and unpaid leave when there was documentary evidence disputing the same and in any event the claims were not particularised.* *8. The Learned trial Magistrate erred in law and fact in awarding compensation for unfair termination without factoring in the considerations stipulated under Section 49 of the Employment Act.* *9. The Learned trial Magistrate erred in failing to completely consider the written submissions filed by the Appellant.* *10. That the Honourable Learned trial Magistrate erred in law and fact in misapprehending the evidence, misapplied, misunderstood and/or overlooked the correct legal principle and judicial precedent on the Appellant’s submissions.* *11. That the Honourable Learned trial Magistrate erred in law and fact in finding that the Appellant had failed to prove its counter-claim on a balance of probability.* *12. The Learned trial Magistrate erred in law and fact in considering extraneous factors unsupported by evidence and consequently arriving at an* unjust decision. The Appellant prays for orders that; 1. *The Honourable court be pleased to allow this Appeal with costs to the Appellant.* 2. *The Honourable court be pleased to set aside the judgment delivered on 28th October, 2024 and dismiss the Claimant/Respondent’s claim with costs.* It is the Appellant’s case and submission that the Respondent’s employment commenced on 3rd September, 2019 as evidenced by a written employment contract of that date duly executed by both parties and produced in evidence as part of the Respondent’s (Appellant’s) bundle. The Appellant contends that the written contract constitutes the only *prima facie* evidence of the employment relationship and its commencement date, that it was not challenged in evidence, and that the Respondent neither objected to its existence nor alleged coercion in its execution. On the issue of termination, the Appellant submits that the Respondent deserted his duties on 31st August 2021 while stationed at the Appellant’s South C yard in Nairobi where he had been allocated staff housing and tasked with monitoring motor vehicle KBK 932J during repairs. The Appellant’s administrator and transport manager, one, Said Charo Kaingu (RW-1), testified that on 31st August 2021 the Respondent stopped reporting to duty and could not be reached on his mobile phone despite several attempts. The Appellant seeks to rely on the authority of **K.B. Sanghani & Sons v Peter Idewa Papa [2021] eKLR** where the court observed that where a claimant alleges verbal termination but produces no evidence of the date, the person who terminated him, the words used, the venue or other circumstances, the claim of verbal termination fails. The Appellant further relies on **Wilson Mudogo Mulima v AGS Worldwide Movers (K) Limited [2014] eKLR** where the court held that a bare claim of verbal termination, unaccompanied by any effort to rebut the employer’s evidence of desertion, cannot discharge the evidential burden. On the reliefs, the Appellant submits that the salary underpayment award is erroneous because employment only commenced in September, 2019 and because the applicable minimum wage is the ‘other areas’ rate of Kshs. 18,881.21 under the Regulation of Wages (General) (Amendment) Order 2018, the Respondent having been stationed at Kokotoni in Kilifi County which is neither a city nor a municipality. The Appellant further submits that the Respondent utilised all his leave days, that the contractual forfeiture clause extinguishes any leave claim, and that having deserted his duties the Respondent is entitled to neither notice pay nor compensation for unfair termination. The Respondent’s case and submission is that the trial court correctly found that his employment commenced on 17th December, 2014. Three items of uncontroverted evidence support this. First, the Kenya Ports Authority Port User Movement Control Pass produced as Claimant’s Exhibit (c), issued by or on behalf of the Appellant on 1st February, 2015 and bearing the Appellant’s name as his employer. Second, the Respondent’s duly certified bank statement, Claimant’s Exhibit (d), showing salary payments from RKM (R.K. Sanghani Mombasa) commencing 4th February, 2015. Third, and critically, the Appellant’s own witness Said Charo Kaingu confirmed on cross-examination that the Respondent was employed in 2015 and was paid through the bank. The Respondent submits that this concession from the Appellant’s own witness, in the witness box, is fatal to the Appellant’s position on the commencement date and that the Appellant thereby failed to discharge the burden imposed by Section 10(7) of the Employment Act, 2007. On termination, the Respondent submits that his account is anchored in the Appellant’s own documentary evidence. The Appellant’s internal memo of 28th July, 2021 was addressed to Said Charo Kaingu himself, the Operations Manager, the Safety Manager and the Nyali Yard Administrator, and directed the smooth relocation of all heavy machines and ten-wheeler trucks including their drivers from Nyali and Kokotoni Yards to Katani-Mlolongo in Machakos County. Motor vehicle KBK 932J, driven by the Respondent, was expressly listed in that memo. The Respondent drove that vehicle to Nairobi in compliance with Said Charo’s directive. The Respondent was then directed to return to Mombasa without the vehicle, was questioned about having left the vehicle in Nairobi, returned to Nairobi a second time and was on that return orally informed that his employment was over. The Respondent further contends that an employee who intends to abscond does not first make two cross-country journeys at his supervisor’s direction. He further points to Said Charo’s own concession in cross-examination that “no written complaints against the claimant of poor performance” existed despite the Respondent having characterised the Claimant as a notorious absentee and poor performer in his witness statement. The Respondent also notes an internal inconsistency in the Appellant’s own pleadings: the Statement of Response and Said Charo’s witness statement assert that the vehicle driven to South C was KBK 932J, while the Appellant’s trial submissions refer to KBK 934J, reflecting an inconsistency in the Respondent’s own account of events at South C. The Respondent submits that the Appellant produced no call logs, SMS records or any contemporaneous documentary evidence confirming efforts to contact him, and that the sole documentary foundation of the desertion defence the desertion notification letter of 6th September 2021 and associated documents at pages 37 to 51 of the Record of Appeal was not before the trial court and has since been expunged from the Record of Appeal by consent of both parties pursuant to the directions of this court on 8th July, 2025. The Respondent relies on the authorities of **Simon Mbithi Mbane v Inter Security Services Limited [2018] KEELRC 2234 (KLR)**, **Boniface Francis Mwangi v B.O.M. Iyego Secondary School [2019] KELRC 1621 (KLR)**, **Felistas Acheha Ikatwa v Charles Peter Otieno [2018] KEELRC 2491 (KLR)** and **Richard Kiplimo Koech v Yako Supermarket Ltd [2015] eKLR** to restate the settled principle that an employer alleging desertion must demonstrate that reasonable efforts were made to contact the employee and must at the very least issue a show-cause notice before treating the employment as ended. On the issue of reliefs, the Respondent submits that his primary base was Mombasa as proved by the KPA pass and that the applicable minimum wage is accordingly the city rate under the Regulation of Wages (General) (Amendment) Order, 2018. On leave, the Respondent points to the fact that the employment contract purports to grant only two working days of leave per year, a provision that directly violates Section 28(1)(a) of the Employment Act, 2007 entitling every employee to not less than twenty-one working days of annual leave, and which is void under Section 5 of the Act. The leave application form produced by one, Said Charo, far from supporting the Appellant’s case, actually confirms that the Claimant’s leave was denied, not taken. The Respondent prays that the appeal be dismissed with costs, relying on **Nicholas Kiptoo Arap Korir Salat v Independent Electoral & Boundaries Commission & 7 Others [2014] KECA 782 (KLR)** on the standard for an appellate court to interference with a trial court’s findings. The issues for determination therefore come out as follows: 1. Whether the Respondent was employed by the Appellant from 17th December, 2014 or from 3rd September, 2019. 2. Whether the Respondent’s employment was unfairly and unlawfully terminated, or whether the Respondent deserted his duties. 3. Whether the reliefs awarded by the trial court are justified in law and in what correct quantum. The 1st issue for determination is whether the Respondent was employed by the Appellant from 17th December, 2014 or from 3rd September, 2019. This is a first appeal and the duty of this court is as settled in **Selle and Another v Associated Motor Boat Co. Ltd and Others [1968] EA 123**: this court must reconsider the evidence, evaluate it itself and draw its own conclusions, making due allowance for the fact that it has neither seen nor heard the witnesses. This court is not bound to follow the trial court’s findings of fact if it appears that the trial court has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence, or if the impression based on the demeanour of a witness is inconsistent with the evidence generally. The trial court found that the Respondent was employed in 2014, stating: “The evidence above is not controverted by the respondent. It is therefore my finding that the claimant was employed by the respondent in year 2014 and not 2019.” That finding was squarely based on three items: the KPA pass issued on 1st February, 2015 bearing the Appellant’s name as employer; the bank statements showing salary payments from RKM (R.K. Sanghani Mombasa) from February, 2015 and Said Charo’s cross-examination admission that the Respondent was employed in 2015 and paid through the bank. The Appellant rests its position on the written employment contract of 3rd September, 2019 which was produced in evidence. That contract, though duly executed, does not answer the question as to when employment actually commenced. It is entirely consistent with the Respondent’s position that the September, 2019 contract formalised a pre-existing employment relationship. Section 10(7) of the Employment Act, 2007 places on an employer who fails to produce a written contract or the prescribed employment particulars the burden of disproving any alleged term of employment; commencement date is among those prescribed particulars under Section 10(1)(c). The Appellant’s own witness, Said Charo Kaingu, conceded in cross-examination that the Respondent was employed in 2015 and paid through the bank. An employer cannot maintain in pleadings and a witness statement that employment began in 2019 while its own witness concedes from the witness box that the employee was in service from 2015. The Appellant failed to discharge the burden imposed by Section 10(7). The trial court’s finding that employment commenced in December 2014 is upheld. This ground fails. The 2nd issue for determination is whether the Respondent’s employment was unfairly and unlawfully terminated, or whether the Respondent deserted his duties. The trial court found as follows: “The claimant also pointed he was not subjected to disciplinary if he was notorious as alleged by the respondent and that there is no proof he called by the respondent if he deserted duty as alleged by the respondent. Based on the evidence on record it is my finding that the claimant was dismissed unlawfully and unfairly.” The Appellant challenges this finding on the basis that the Respondent never proved verbal termination and that the Respondent was in fact a deserter. The law is clear. The burden of proving unfair termination rests with the employee under Section 47(5) of the Employment Act. When an employer raises the defence of desertion, however, it assumes an obligation to demonstrate that it conducted itself lawfully when faced with the employee’s absence. Section 41(2) of the Employment Act, 2007 requires an employer, before terminating employment or summarily dismissing an employee under Section 44(3) or (4), to hear and consider any representations which the employee may make. Desertion is an act of misconduct under Section 44(4)(a). An employer who asserts desertion must therefore demonstrate steps taken: efforts to contact the employee, a show-cause notice, and an opportunity for the employee to explain the absence. This is settled across a consistent line of authorities. In **Simon Mbithi Mbane v Inter Security Services Limited [2018] KEELRC 2234 (KLR)**, the court held that an allegation of absconding calls upon an employer to reasonably demonstrate that efforts were made to contact the employee without success. In **Richard Kiplimo Koech v Yako Supermarket Ltd [2015] eKLR**, this court held that absence from work without permission falls under misconduct and that Section 41 of the Employment Act, 2007 applies. It is incumbent upon an employer who alleges that an employee has absconded to make reasonable attempts or efforts to reach the employee and seek any explanation to excuse itself from the application of Section 41 of the Employment Act above. In **Boniface Francis Mwangi v B.O.M. Iyego Secondary School [2019] KELRC 1621 KLR** the court observed that the employer must at the very least issue a notice to the deserting employee that termination on the ground of desertion is being considered and in **Felistas Acheha Ikatwa v Charles Peter Otieno [2018] KEELRC 2491 KLR** the court again observed that an employer asserting desertion must demonstrate efforts made towards getting the employee to resume duty. The Appellant’s problem in this appeal is not that the desertion defence is inherently implausible: it is the complete collapse of the documentary foundation of that defence. The desertion notification letter of 6th September, 2021 and related documents were not before the trial court. They were introduced into the Record of Appeal improperly and were expunged from the record by consent of both parties pursuant to the directions of this court on 8th July, 2025. What remains after the expungement is the bare oral testimony of Said Charo Kaingu that he tried to call the Respondent on his mobile phone. No call logs, no SMS records, no written communication to the employee prior to litigation, and no contemporaneous record of any kind was produced before the trial court to corroborate that assertion. The trial court correctly noted there was “no proof he called by the respondent if he deserted duty.” That finding was not a misdirection. It was a straightforward application of the evidential standard required of an employer who alleges desertion. The Respondent’s account is, by contrast, anchored in the Appellant’s own documentary evidence. The internal memo of 28th July, 2021 produced by the Appellant as part of its own bundle was addressed to Said Charo Kaingu himself and expressly directed all drivers of the listed ten-wheeler trucks, including the Respondent as driver of motor vehicle KBK 932J, to relocate to Nairobi. The Respondent drove to Nairobi on Said Charo’s own instruction. An employee who complies with a supervisor’s relocation directive is not behaving in the manner of someone who intends to desert. There is a further problem with the Appellant’s account. The Respondent’s Statement of Response and Said Charo’s witness statement both state that the vehicle driven to South C was KBK 932J. The Appellant’s trial submissions however refer to KBK 934J in the same context. This internal inconsistency in the Appellant’s documents on so central a fact as which vehicle was at the centre of the events of August, 2021 further undermines the reliability of the Appellant’s account. Said Charo also conceded on cross-examination that there were no written complaints against the Claimant for poor performance despite his witness statement having characterised the Respondent as a notorious absentee and very poor performer. No warning letters, no performance notes, no disciplinary records of any kind were produced. The Appellant relies on the authority of **K.B. Sanghani & Sons v Peter Idewa Papa [2021] eKLR** for the proposition that verbal termination must be proved with particularity as to the person who terminated, the words used, the time, venue and circumstances. That principle is sound. It operates, however, symmetrically: a court will equally require an employer asserting desertion to demonstrate that assertion with evidence. In the **Peter Idewa Papa** authority the employer had written documentary evidence of its actions upon the employee’s disappearance. After the expungement, no such foundation exists here. The trial court made a credibility finding in favour of the Respondent’s account having seen and heard both witnesses. This court finds no valid basis in the law or on the evidence to disturb that finding. The finding of unfair and unlawful termination is upheld. These grounds fail. The 3rd issue for determination is whether the reliefs awarded by the trial court are justified in law and in what correct quantum. Here, this court is required to assess the correct reliefs in law. On the applicable minimum wage rate, the Appellant asserts the Respondent was based exclusively at Kokotoni, Kilifi County, and that the ‘other areas’ rate under the Regulation of Wages (General) (Amendment) Order, 2018 applies. The evidence does not support this. The KPA pass places the Respondent in Mombasa in the course of his employment. His bank statements confirm payment from the Mombasa office. Said Charo himself, while asserting Kokotoni as the work location, confirmed in cross-examination that the Respondent was paid through the bank, which the bank statements place in Mombasa. The Claimant testified that he worked in Mombasa and intermittently in Voi and Kilifi. The Appellant’s own memo of 28th July, 2021 was addressed to both the Nyali Yard and the Kokotoni Yard, consistent with a work pattern that covered both locations. The contract produced by the Respondent is silent on the specific place of work as required by Section 10(3)(d) of the Employment Act, 2007 the Appellant cannot rely on that omission to confine the Respondent to Kilifi. On the balance of the evidence, the Respondent’s primary employment base was Mombasa. Mombasa is a city. The city rate under the Regulation of Wages (General) (Amendment) Order, 2018 therefore applies. The correct city rate for a heavy commercial vehicle driver under Legal Notice No. 2 of 2018 is Kshs. 30,267.45 per month. The Respondent’s Memorandum of Claim pleads PILON at Kshs. 30,627.45 and the trial court adopted that figure; the Respondent’s trial submissions, however, correctly cite the statutory rate as Kshs. 30,267.45. The statutory rate of Kshs. 30,267.45 is the correct benchmark and this court applies it. On notice pay, the Respondent is entitled to one month’s salary in lieu of notice at Kshs. 30,267.45. On compensation for unfair termination, the statutory maximum of twelve months’ salary under Section 49(1)(c) of the Employment Act is appropriate. The Respondent served the Appellant for approximately seven years without a single documented disciplinary matter, without a single warning letter and was terminated in a manner that was procedurally and substantively unfair in every respect: without notice, without a hearing, and without any of the steps required by law. The trial court noted the acute unemployment in Kenya as a relevant Section 49 consideration. In **Sammy Anyinga Madahana v Kenya International Hotel Limited [2020] eKLR**, the maximum compensation was awarded to an employee of seven years’ service in analogous circumstances. The maximum of twelve months is warranted. Twelve months at the correct rate of Kshs. 30,267.45 is Kshs. 363,209.40. On salary underpayment, this court has upheld both the December, 2014 commencement date and the Mombasa city minimum wage as the applicable benchmark. The underpayment is computed against the successive Regulation of Wages Amendment Orders as follows: December, 2014 at the Legal Notice 197/2013 city rate of Kshs. 22,070.95 against a salary of Kshs. 15,000 — one month, Kshs. 7,070.95; January to April 2015 at the same order’s city rate against Kshs. 15,000 — four months, Kshs. 28,283.80; May 2015 to April 2016 at the Legal Notice 117/2015 city rate of Kshs. 24,719.50 against Kshs. 15,000 — twelve months, Kshs. 116,634.00; May 2016 to April 2017 at the same rate against the revised salary of Kshs. 20,000 — twelve months, Kshs. 56,634.00; May 2017 to April 2018 at the Legal Notice 112/2017 city rate of Kshs. 29,169.00 against Kshs. 20,000 — twelve months, Kshs. 110,028.00; and May 2018 to August 2021 at the Legal Notice 2/2018 city rate of Kshs. 30,267.45 against Kshs. 20,000 — forty months, Kshs. 410,698.00. The total underpayment is Kshs. 729,348.75, which corresponds to the figure pleaded by the Respondent in his Memorandum of Claim and accepted by the trial court. The Appellant’s challenge to this award on the basis of a different commencement date and a lower wage rate has been rejected. The award of Kshs. 729,348.75 is upheld. On annual leave, the trial court awarded Kshs. 133,186 for unpaid annual leave for the period 2015 to 2021, stating that “there is no agreement between the claimant and the respondent as to how the claimant would utilize his leave days as envisaged in section 28(2) and (3) of the Employment Act.” The Appellant raises two defences. Firstly, that the Respondent utilised all his leave days. This is contradicted by the Respondent’s uncontroverted evidence that he was only permitted eight days of leave in December, 2015 and that his subsequent requests for leave were denied. Said Charo Kaingu produced a leave application form in evidence. On cross-examination he confirmed that the leave form showed the Claimant’s application was ‘rejected’. That concession works against the Appellant. The form does not show leave taken; it shows leave denied. Section 74(f) of the Employment Act, 2007 requires an employer to maintain and produce records of leave entitlement, days taken and days due. The Appellant failed to produce any leave register or other record demonstrating that leave was in fact taken. Secondly, the Appellant invokes the contractual forfeiture clause, arguing that unclaimed leave lapsed within eighteen months of accrual per Section 28(4) and under the terms of the contract. This defence fails at two levels. The employment contract purports to entitle the Respondent to only two working days of leave per year. That is a direct and blatant violation of Section 28(1)(a) of the Employment Act, 2007 which provides that an employee shall be entitled to not less than twenty-one working days of annual leave with full pay upon the completion of every twelve consecutive months of service. Section 5 of the Employment Act aforesaid renders void and of no effect any provision in a contract of service that purports to exclude or limit the operation of any provision of the Act to the detriment of an employee. The two-days contractual provision was void from the outset. The Respondent’s entitlement was at all times the statutory minimum of twenty-one working days per year. An employer who reduces statutory leave entitlement to two days per year cannot then invoke a forfeiture mechanism to defeat the statutory right it was itself breaching. The leave claim of Kshs. 133,182.61 is upheld. In **Mombasa Coffee Ltd v Shuke (Appeal E075 of 2022) [2024] KEELRC 444 (KLR)**, this Court upheld a leave award for the entire period of employment where the employer had failed to maintain and produce leave records, applying an analogous reasoning. I am therefore inclined to dismiss the appeal and uphold the judgment of the trial court. The quantum of the award is adjusted to reflect the correct applicable statutory minimum wage rate of Kshs. 30,267.45 per month pursuant to the Regulation of Wages (General) (Amendment) Order, 2018 (Legal Notice No. 2 of 2018). The award therefore comes out thus; 1. One (1) month’s salary in lieu of notice…………………………Kshs. 30,267.45 2. Twelve (12) months compensation for unfair termination………..Kshs. 363,209.40 3. Salary underpayment for December 2014 to August 2021)……Kshs. 729,348.75 4. Unpaid annual leave (2015 – 2021)…………………………….....Kshs. 133,182.61 **Total of award**………………………………………………..**Kshs. 1,256,008.21** 1. The Respondent is awarded interest on the total award of Kshs. 1,256,008.21 at court rates from 28th October, 2024 being the date of the trial court’s judgment, until payment in full. 2. The Appellant shall issue the Respondent with a certificate of service pursuant to Section 51(1) of the Employment Act, 2007 within thirty (30) days of this judgment of court. 3. Costs shall be borne by the Appellant. Delivered, dated and signed this **29th** day of **July** 2026. **D. K. Njagi Marete** **JUDGE** **Appearances:** 1. Mr. Chamwada instructed by Chamwanda & Company Advocates for the Appellant. 2. Mr. Mutegi instructed by Kipkosiom Gitonga & Company Advocates for the Respondent.