https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1132

Romageco Kenya Ltd v Kisigwa (Civil Appeal E025 of 2020) [2026] KECA 1132 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1132 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E025 of 2020 WK Korir, L Ndolo & AI Hassan, JJA June 12, 2026 Between Romageco Kenya Limited Appellant and Hudson Kidaha Kisigwa Respondent (Appeal from the Judgment of the Employment and Labour Relations Court at Nairobi (N. Nduma, J) delivered on 10th August 2018 in ELRC Cause No. 2149 of 2012 Cause 2149 of 2012 ) Judgment 1.On 10th August 2018, the Employment and Labour Relations Court (N. Nduma, J. (as he then was)) delivered judgment in favour of the respondent in the sum of Kshs.4, 707,945.38 made up of: unpaid commissions, twelve months' salary in compensation for unfair and unlawful dismissal, April 2010 salary, one month’s salary in lieu of notice, and 15 days’ salary in lieu of leave. 2.Being dissatisfied with this judgment, the appellant filed the present appeal. In its memorandum of appeal dated 16th July 2020, the appellant faults the trial court for:a)Finding that the respondent was terminated while sick and on leave and that the respondent never absconded duty and therefore awarding him compensation for unlawful termination;b)Finding that the respondent was terminated from work for misappropriation of funds or failure to remit or account for the appellant’s funds and not for absconding from work without lawful cause;c)Finding that the respondent was unfairly and unlawfully terminated without compliance with due process of the law;d)Finding that the respondent’s alleged illness or neck injury is attributable to his occupation;e)The award of unpaid commissions in the sum of Kshs. 3,851,140.38 and interest thereon at court rates from the date of filing the suit, despite overwhelming evidence that the same was not proved;f)Dismissing the appellant’s counterclaim;g)Failing to consider the appellant’s pleadings, submissions, as well as the overwhelming evidence in favour of the appellant’s case. 3.This is a first appeal and, as restated by this Court in Abok James Odera & Associates vs. John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, the duty of a first appellate court is to re- consider, re-analyze, and re-evaluate the evidence on record and draw its own conclusions, always bearing in mind that it has neither seen nor heard the witnesses. 4.Regarding the remit of a first appellate court, this Court in its decision in Musera vs. Mwechelesi & Another [2007] KLR 159 stated as follows:“We must at this stage remind ourselves that though this is a first appeal to us and while we are perfectly entitled to make our own findings on the evidence, the trial judge has in fact made clear and unequivocal findings and as an appellate court we must indeed be very slow to interfere with the trial judge’s findings unless we are satisfied that either there was absolutely no evidence to support the findings or that the trial judge must have misunderstood the weight and bearing of the evidence before him and thus arrived at an unsupportable conclusion.” 5.The employment relationship between the parties is not in dispute.The respondent was engaged by the appellant on 11th October 2005 as a Salesman and served in that capacity until 1st May 2010 when his employment was terminated. The controversy lies in the circumstances surrounding that separation, which now forms the subject of this appeal. 6.The respondent’s case before the trial court was that his termination was precipitated by his lodging of a legitimate complaint with the appellant regarding unlawful deductions from his salary occasioned by dishonoured cheques issued by the appellant’s customers. He further testified that commissions duly earned on various months between February 2006 and November 2009 remained unpaid without explanation. The respondent contended that the dismissal was effected while he was unwell and on leave, and that he was neither notified of the termination nor served with a show-cause letter or charged with any misconduct. He added that the appellant failed to issue him with a certificate of service as required by law, and that his reputation was gravely injured when notice of his dismissal was published in the Nation Newspaper. 7.Further, the respondent asserted that the appellant maliciously instigated criminal proceedings against him before the Makadara Law Courts in Criminal Case No. 1827 of 2010 on a charge of stealing by servant. He recounted that he was arrested while still unwell, subjected to trial, and ultimately acquitted. In his view, the charges were false, unfounded, and actuated by malice. 8.In response, the appellant contended that the respondent had been issued with warning letters regarding the misuse of the company cars, as well as warning letters regarding failure to collect money for goods delivered to customers and failure to remit the appellant's money received from customers. The appellant acknowledged that the respondent had indeed been admitted at Nairobi Hospital between 15th and 21st April 2010, after which it granted him fourteen days’ sick leave. The appellant contended, however, that the respondent failed to resume duty upon the expiry of the sick leave. The appellant asserted that the refusal to return to work upon expiry of sick leave was in breach of the respondent’s contract of employment. 9.The appellant further contended that during the sick leave, it was discovered that the respondent had collected money from its customers and had failed to remit or account for it, prompting the appellant to terminate his employment through a notice published in the Daily Nation Newspaper of 20th May 2010. 10.The appeal was canvassed by way of written submissions. When the appeal came up for hearing, Mr. Lintoro briefly highlighted his submissions on behalf of the appellant, while Mr. Otieno, learned counsel for the respondent, made no highlights. 11.Mr. Lintoro's submission before us focused mainly on the fact that the claim for unpaid commissions for the period between 2005 and 2008, and the period between January and September 2009, amounting to Kshs. 2,088,076.11 were statute-barred by the limitation of actions law and particularly section 91 of the Employment Act, and could not be awarded by the trial court. It was his submission that the award amounts to an illegality. It is conceded that the issue of limitation or jurisdiction was not pleaded, but counsel avers that the issue of limitation or jurisdiction was on the face of the pleadings. The appellant has cited the matter of Lordship Africa Limited vs. Public Procurement Administrative Review Board & 2 Others [2018] KEHC 7978 (KLR) and Kenya Pipeline Company Limited vs. Glencore Energy (U.K) Limited (2015) eKLR for the proposition that issues of illegality, whether pleaded or not, and lack of jurisdiction, ought to be investigated even if it was not pleaded in the superior court. 12.It was the appellant’s submission that it is trite law that special damages must be pleaded and proved. That the claim for unpaid commissions was not proved on a balance of probabilities, and that the spreadsheets produced by the respondent are uncertified documents whose author and source are unknown. Similarly, the appellant submitted that the salary deductions were not proved. 13.On the reason for dismissal, the appellant submitted that the trial court erred in finding that the appellant did not have a valid reason for dismissing the respondent. It was submitted that upon expiry of the sick leave, the respondent did not report back to work. The appellant dismissed the respondent from work on 3rd May 2010, after 17 days. It is submitted that the respondent did not provide any evidence that he applied for an extension of sick leave or notified the appellant that he could not resume work. 14.Further, the appellant has submitted that from its pleadings and evidence presented, the respondent was culpable of failing to account and remit proceeds of sales. That the respondent had received warning letters to this effect, and the foregoing amounts to gross misconduct under section 44(4) (a) of the Employment Act. 15.In its submissions, the appellant submitted that the respondent’s failure to report back to work or failure to notify the appellant that he would not be able to resume work, coupled with the nature of the respondent’s work that involved dealing with customers, made it difficult to comply with fair hearing requirements under sections 41 and 43 of the Employment Act. 16.On the compensatory award, the appellant submitted that the award was excessive and inconsiderate of the fact that the respondent was guilty of gross misconduct, defaults, or breaches of sections 30 (2) and 40(4) (a, c, f, and g) of the Employment Act. 17.In opposing the appeal, it was submitted that the issue of limitation of action was not raised in the appellant’s Memorandum of Appeal, and raising the same in the written submissions was unprocedural and should not be condoned by this Court. Further, it is contended that the issue of limitation was not raised in the defence by the appellant, and even if a limitation of period were in place, the appellant acknowledged the debt by supplying documents which unwittingly admitted the respondent’s claim. 18.On the issue of unpaid commissions, the respondent submitted that the same was proved. It was submitted that the appellant supplied documentary evidence to the trial court, proof of the sales by the respondents for the years between 2006 and 2010. That the spreadsheet is a computation of the commissions payable to the respondent based on his letter of appointment, prepared by the appellant, and the sales record provided by the appellant. Further, it was contended that the appellant did not file an amended defence, and as such, the new claims of the commissions were uncontroverted, and it is disingenuous for the appellant to claim at this juncture that the claim for commissions was proved by an uncertified spreadsheet. 19.On the reason for dismissal, the respondent submitted that the appellant’s witness testified and admitted dismissing the respondent while he was on sick leave for failure to remit alleged money received from the appellant’s customers. That no evidence was produced by the appellant that the respondent absconded from duty, nor was any evidence tendered for any disciplinary meeting against the respondent for failing to account for the appellant's money. That, in any event, when sick leave ended on 3rd May 2010, the respondent could not go back to work since the appellant had orchestrated the arrest of the respondent on false allegations of failure to remit money to the appellant. The respondent cited the case of John Wanjohi Wakahora vs. Linksoft Communications Systems Limited (2020) eKLR that held that an employer must demonstrate effort made to have the employee resume duty. 20.On the award, the respondent submitted that the appellant orchestrated the arrest of the respondent while he was sick, terminated his employment while he was on sick leave, and failed to pay his terminal dues after termination, and all these factors aggravated the respondent’s complaint of unlawful termination of employment. 21.We have considered the record in light of our mandate as set out above, the rival submissions and principles of law relied upon by the respective parties in support of their opposing positions. The issues that fall for our determination are as follows:a)Whether the claim for unpaid commissions was barred by the limitation of actions law and specifically by Section 91 of the Employment Act;b)Whether the appellant’s reasons for termination of the respondent’s employment were valid;c)Whether the respondent’s dismissal was unfair and unlawful;d)Whether the award for unpaid commissions and salary deductions in the sum of Kshs. 3,851,140.38 was proved;e)Whether the award for unfair and unlawful dismissal was excessive or erroneous in law and fact. 22.On the first issue, we take note that the appellant did not raise the issue of the claim for unpaid commissions being statute-barred by the limitation of actions law, and particularly by Section 89 of the Employment Act, before the trial court. The issue was first raised in the appellant's written submissions. It was not one of the grounds of appeal, obviously because the issue was not raised in the reply to the claim filed in the trial court. 23.Appeals are not forums for raising fresh issues that were neither pleaded nor canvassed before the trial court. The appellate jurisdiction is confined to a review of matters that were properly placed before the court of first instance. In discharging its mandate, the appellate court is restricted to the evidence on record, and there is no leeway to introduce extraneous matters that were not canvassed at the trial. (See Kenya Ports Authority vs. Kuston (Kenya) Limited [2009] 2 EA 212). It is appreciated that jurisdiction is everything and without jurisdiction a court cannot take any further step. However, in the appeal before us, we note that there were defences that were available to the respondent had the issue of limitation been raised before the trial court. We therefore decline to delve further into the issue. 24.On the issue of whether the appellant’s dismissal was justified.Section 45 of the Employment Act requires the employer to prove the reasons for a termination of an employee’s employment; failure to which the termination will be regarded as unfair. The section requires the employer to prove that the reason for the termination was valid, that the reason for the termination is fair in relation to the employee’s conduct, capacity, and compatibility, and based on the operational requirements of the employer. The section concludes that the employment should also have been terminated in accordance with fair procedure. 25.In its memorandum of appeal, the appellant avers that the learned Judge misdirected himself in finding that the appellant dismissed the respondent for misappropriation of funds instead of due to absconding from work after expiry of sick leave. The appellant contends that the respondent did not apply for extension of the sick leave, and neither did he notify the appellant that he would not be able to resume work. Accordingly, the appellant alleges that the respondent absconded or deserted duty. 26.It is not in dispute that the respondent was ill and admitted at Nairobi Hospital from 15th to 21st April 2010. He was then granted 14 days' sick leave until 3rd May, 2010. The appellant contends that the respondent failed to return to work after 3rd May 2010, and he had therefore absconded from duty or deserted work. 27.The South African decision in Seablo vs. Belgravia Hotel [1997] 6 BLLR 829 (CCMA) defined desertion as follows:“…desertion is distinguishable from absence without leave, in that the employee who deserts his or her post does so with the intention of not returning or, having left his or her post, subsequently formulates the intention not to return. On the other hand, an employer may deduce the intention of not returning to work from the facts of the case and should demonstrate the same. The facts may include a lack of communication from the employee, duration of absence, and attempts made to reach out or establish the whereabouts of the employee. Show cause notice to explain the absence may also be a factor to consider.” 28.The critical consideration is that an employer invoking desertion as a defence to a claim of unlawful termination must demonstrate tangible efforts to reach out to the employee, with the objective of notifying them that termination on this ground is under contemplation. It is insufficient for an employer to merely invoke the term “desertion” without substantiating it through action and evidence. 29.In the case before the Employment and Labour Relations Court (ELRC), there was no proof of any attempt made by the appellant to reach out to the respondent, especially since the appellant was aware that the respondent had been ill; according to the appellant’s witness, the respondent was terminated 17 days after his sick leave ended via a publication in the Nation Newspaper. No attempts were made whatsoever to reach out to the respondent, and certainly, no show- cause notice was ever issued on this account. It is therefore plausible that the respondent only became aware of the termination through the newspaper publication. 30.The learned Judge found that instead of giving the respondent a notice to show cause in respect of any alleged unremitted funds, the appellant decided to dismiss the respondent, who was still sick, through the newspaper. The trial court also observed that it was not until the respondent fell ill that the appellant accused him of failing to remit funds and that the appellant did not give the respondent an opportunity to counter the allegations. In its submissions, the appellant submits that the respondent’s conduct of receiving monies from the appellant’s customers and failing to remit the same or account for it constituted gross misconduct. They therefore fault the learned Judge of the ELRC for holding that it did not have a valid reason to dismiss the respondent. 31.There is no doubt that no notice to show cause was issued to the respondent on account of the misappropriated funds, nor was he given a chance to counter the allegations. We agree with the trial court that from the evidence given by the appellant’s witness, it was not until the respondent fell ill and was on sick leave that the employee was accused of failure to remit monies. No demand letter was issued demanding the funds not remitted. 32.An employee has a right to dispute or allege that an act complained of as amounting to gross misconduct is not warranted in law. We are not satisfied that the appellant discharged the burden of proof that lay on it. Further, upon careful consideration, it is manifest that the claim for unremitted monies was an afterthought and appeared contrived with the objective of terminating the respondent’s engagement. 33.Even assuming, arguendo, that the respondent was guilty of the alleged misconduct, he ought to have been given an opportunity to respond to the relevant charges at the shop floor. In its decision in Kenfreight (E.A) Limited vs. Nguti [2019] KESC, the Supreme Court affirmed that the requirement for due process at the shop floor is mandatory. 34.We observe that the appellant neither issued a formal letter of termination to the respondent nor subjected him to any disciplinary process. Indeed, the appellant has expressly conceded in its submissions that it failed to comply with the requirements of section 41 of the Employment Act. Notably, the appellant now seeks to shift blame onto the respondent for its own non-compliance with section 41. 35.We are in agreement with the trial court that the appellant had no valid reason to terminate the respondent’s employment. In addition, the appellant did not terminate the respondent’s employment in accordance with fair procedure. In all the circumstances of the case, the appellant acted unfairly, and the termination of the respondent was not justified. 36.On whether the claim for unpaid commissions in the sum of Kshs. 3,851,140.38 was proved, it is trite law that special damages must be specifically pleaded as well as specifically proved. This Court in Herbert Hahn vs. Amrik Singh [1985] eKLR found that:“Special damages must be not only claimed specially but proved strictly, for they are not the direct natural or probable consequences of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and the nature of the acts themselves.” 37.From the record of appeal, it is clear that the respondent anchored his claim on documents supplied by the appellant itself, which demonstrated the sales he made between 2006 and 2010. The letter of appointment, constituting the contract of employment between the parties, expressly entitled the respondent to commissions. The spreadsheet produced was a computation of commissions payable under that contract. We are therefore satisfied that the claim for unpaid commissions was proved. In any event, the appellant’s objection to the spreadsheet on the ground of certification ought to have been raised before the trial court at the point of production and marking of the document, and cannot properly be advanced at this stage. 38.We now turn to the final question of whether the compensatory award issued by the trial court was excessive. Remedies for wrongful dismissal and unfair termination are provided for in section 49 of the Employment Act. They include, which the learned Judge invoked, payment equivalent to a number of months' wages or salary not exceeding twelve (12) months based on the gross monthly wage or salary of the employee at the time of dismissal. 39.In deciding the appropriate remedies, the court has to take into account a raft of considerations such as the wishes of the employee, circumstances in which the termination took place and the extent of the employee’s contribution, practicability of reinstatement, employee’s length of service, opportunity available to the employee, severance payable, right to press other claims or unpaid wages, expenses reasonably incurred by the employee as a consequence of termination, conduct of the employee which to any extent caused or contributed to the termination, failure by the employee to reasonably mitigate the losses and any other compensation in respect of termination of employment paid by the employer and received by the employee. 40.Specifically, in regard to the award of damages for unfair or wrongful termination, the Supreme Court in Kenfreight vs. Nguti (supra) rendered itself thus:“On an award on damages, the Act limits the award a court of law can make to a maximum of 12 months’ salary. In as much as the trial court therefore does have a discretion in the quantum of damages to award for unfair or wrongful termination of employment, it must be guided by the principles and parameters set under sub-section 4 of section 49 of the Employment Act.” 41.In Co-operative Bank of Kenya Ltd vs. Banking Insurance & Finance Union CA No. 188 of 2014, the Court stated as follows:“Our understanding of the Act is that the prescribed remedies…are discretionary rather than mandatory remedies, to be granted on the basis of the peculiar facts of each case. This is made absolutely clear by the use of the word “may”, which in the context of the provision imports a discretionary rather than a mandatory meaning. That the remedies….are not mandatory remedies, is made even clearer by section 49(4) which sets out some 13 considerations which the court must take into account before determining what remedy is appropriate in each case. Those considerations include the wishes of the employee, the circumstances of the termination and the extent to which the employee caused or contributed to it, the practicability of reinstatement or re-engagement, the common law principle that an order for specific performance of a contract for service should not be made save in exceptional cases, the employee’s length of service with the employer, the employee’s reasonable expectation of the length of time the employment was to last but for the termination, the employee’s opportunities for securing comparable or suitable employment, any conduct of the employee that may have caused or contributed to the termination, any action on the part of the employee to mitigate his loses, etc. What all the above means is that before exercising the discretion to determine which remedy to award, the court must be guided by the above comprehensive list of considerations.” 42.Whenever this Court is called upon to interfere with the exercise of judicial discretion, as in this appeal, it is guided by the principles enunciated in numerous case law from this Court. In the case of Coffee Board of Kenya vs. Thika Coffee Mills Limited & 2 Others [2014] eKLR, it was stated that the Court ought not to interfere with the exercise of such discretion unless it is satisfied that the Judge misdirected himself in some matter and as a result arrived at a wrong decision, or that it be manifest from the case as a whole that the Judge was clearly wrong in the exercise of discretion and occasioned injustice. 43.Similarly, in Edward Sargent vs. Chhotabhai Jhaverbhat Patel [1949] 16 EACA 63, it was held that an appeal does lie to an appellate court against an order made in the exercise of judicial discretion, but the appellate court will interfere only if it be shown that the discretion has not been exercised judicially. (See also Spry VP in Haman Singh & Others vs. Mistri [1971] EA 122, 125). The circumstances in which appellate courts can interfere with discretionary orders are well settled in the case of Mbogo & Another vs. Shah [1968] EA 93, where it was held at page 96 that:“An appellate court will interfere if the exercise of the discretion is clearly wrong because the judge has misdirected himself or acted on matters which it should not have acted upon or failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion….” 44.The Employment Act permits the trial court to award compensation up to a maximum of twelve (12) months’ salary. The trial court exercised its discretion and awarded twelve (12) months’ gross salary. In awarding the 12 months’ salary, the learned Judge considered the peculiar aggravating circumstances in the respondent’s termination. He considered the fact that the respondent was falsely accused of theft and was summarily dismissed via the newspaper, was not issued with a certificate of service nor paid terminal benefits. He stated that the respondent, who was sick, was not accorded any decorum in his dismissal. 45.We agree with the learned Judge that this was a proper case for the award of the 12 months’ salary compensation. The respondent’s dismissal was effected without decorum, in a manner inconsistent with the dignity owed to an employee. The appellant has not demonstrated to us how the trial court abused its discretion or if the court misdirected itself in any way. We, therefore, find no reason to cause us to interfere with the award. 46.Ultimately, we find this appeal to be without merit and proceed to dismiss it with costs to the respondent. DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE 2026.W. KORIR...............................JUDGE OF APPEALL. M. NDOLO...............................JUDGE OF APPEALAHMED ISSACK................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR