https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2392

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **APPEAL NO. E302 OF 2025** **SANA INDUSTRIES LIMITED APPELLANT** *VERSUS* **HESINA MOKEIRA RESPONDENT** **[Being an appeal from the judgment of Hon. Diana Orago delivered on 29 July 2025 in Ruiru CMELRC No. E055 of 2024]** **JUDGMENT** The appeal arises from the judgment delivered on 29 July 2025 in Ruiru CMELRC No. E055 of 2024. The suit before the trial court related to Lucy Njeri Mwaura & 6 others v Sana Industries Limited. The appellant is seeking that the judgment of the trial court be set aside and the claim dismissed with costs. The background of the appeal is a claim filed by the respondent, along with others, before the trial court. The case was that she was employed by the appellant in 2010 as a hand piper and worked until September 2023 when her employment was terminated without due process. At the time, she was earning ksh. 15,410 per month. The claim was that the respondent's workplace was in Ruiru, and in September 2023, she reported for work, where the supervisor instructed her to check the blackboard to see if her name was listed. She did not find her name, and the supervisor directed her to vacate the premises and that she would be called back after two weeks. She was never called or allowed back to work. The claim was that this has caused the respondent and other employees to lose income and caused unnecessary anxiety for their families. The employment was terminated without due process, which led to wrongful and unfair. She claimed the following terminal dues: 1. One month's notice pay Ksh. 15,410. 2. Accrued leave days Ksh. 154,100. 3. Service calculated at one month's salary, Ksh. 15,410. 4. House allowance for 120 months Ksh. 288,000. 5. Service pay for 10 years Ksh. 51,367. 6. NSSF deductions for 2015 to 2021 Ksh. 33,600. 7. Underpayments for 120 months Ksh. 612,882. 8. Compensation Ksh. 200,330. The respondent also claimed for a conversion of the employment relationship from casual to terms and conditions under the Employment Act (the Act) together with compensation for wrongful termination of employment and issuance of a Certificate of Service. In reply, the appellant denied the claims, save that the respondent was employed as a casual worker in the Hand Pipe section earning a consolidated daily wage of Ksh.652 and payable every fortnight and that the respondent absented himself from work on 30 January 2024 and was issued with a notice to show cause on 12 February 2024. A return-to-work notice was issued on 21 February 2024, but she failed to attend. Two disciplinary notices were issued on 29 February 2024 and 8 April 2024, with no response, resulting in a notice of summary dismissal on 8 April 2024. A notice was also issued through the Sub-County Labour Office and the Union Steward's office. The claims made are without merit and cannot be justified after the respondent absconded work. She failed to respond to the notice to show cause or subject herself to the disciplinary process. The claims made are not justified, as the respondent was paid for days worked and was therefore not entitled to take leave days as a casual employee. Service pay is not due since the appellant made statutory remittances to NSSF. The daily wages paid were inclusive of house allowance; hence service pay is not due. The alleged underpayment does not apply because the daily wage complied with the Wages Orders. In the judgment, the learned magistrate delivered judgment and held that the respondent’s employment was terminated unlawfully and unfairly and awarded the following: 1. Notice pay Ksh. 15,410. 2. Unpaid leave Ksh. 32,361. 3. Service pay Ksh. 41,093. 4. 9 months compensation Ksh. 138,690. 5. Underpayments from May 2023 to September 2023 for 5 months Ksh. 1,549. 6. Underpayments Ksh. 7,745 7. Interest from 29 July to 10 October 2025 Ksh. 4,050. Aggrieved by the judgment, the appellant filed the appeal. There are 10 grounds of appeal: 1. The learned magistrate erred in law and fact in finding that the respondent’s employment had converted to permanent despite evidence showing that the respondent never worked continuously. 2. The learned magistrate erred in law and fact in finding that the respondent’s employment was unlawfully terminated despite the appellant having demonstrated that it made all reasonable effort to submit the respondent to the disciplinary process after she absconded duty. 3. The trial court erred in failing to find that the respondent absconded duty, which then entitled the appellant to terminate her employment. 4. The trial court erred in awarding excessive damages when the respondent in fact absconded duty, hence abating her own dismissal from employment. 5. The learned magistrate erred in failing to give reasonable justification of how she arrived at 9 months' salary of Ksh. 139,690 as damages for unfair termination. 6. The learned magistrate erred in awarding one month's salary in lieu of notice despite evidence showing that the claimant absconded duty. 7. The learned magistrate erred in awarding service pay of Ksh. 41,093 despite having made a finding that the appellant remitted the statutory dues. 8. The learned magistrate erred in awarding leave of Ksh. 32,361 despite having found that the respondent worked for two months. 9. The learned magistrate erred in awarding underpayments from May 2023 to September 2023 of Ksh. 15,410 despite having found that the respondent worked for two months. 10. The trial magistrate erred in law in failing to consider the appellant’s evidence. On appeal, the appellant submitted that the respondent filed a claim alleging unfair and unlawful termination of employment, alleging that she reported for work in September 2023, when her employment was terminated. In reply, the appellant denied the claims, admitted that the respondent was at work in January 2024, and produced attendance sheets for **30 and 31 January 2024,** which she had signed. She then deserted work. The appellant produced the Notice to Show Cause letter indicating that the Respondent failed to report for work after her suspension expired. The Appellant also adduced evidence of efforts made to contact the Respondent through the union representative, given that the Respondent was unionised. Letters were received and acknowledged by the labour officer, all of which demonstrated the efforts made by the Appellant before issuing the summary dismissal letter. The Claimant only worked for about one month, and the awards are not justified. In the judgment, the trial court allowed; 1. 9 months’ salary for unfair termination Kshs. 138,690.00, 2. 1 month’s salary in lieu of notice Kshs. 15,410.00, 3. Service pay Kshs. 41,093.00, 4. Underpayment Kshs. 7,745, 5. Unpaid leave Kshs. 32,361.00, 6. Plus half costs and interest. The appellant submitted that the trial court erred in finding that there was an unfair termination within the meaning of Sections 43 and 45 of the Act. Section 47(5) of the Act, the burden of proof in claims for unfair termination is shared. The employee bears the initial burden of establishing the fact of dismissal and alleging unfairness, whereupon the burden shifts to the employer to justify the reasons and procedure adopted in effecting the termination. In **Walter Anuro v Teachers Service Commission [2013] eKLR**, the court outlined the dual requirement of substantive and procedural fairness. The Appellant adhered to both. The Respondent had a duty to engage, but instead absconded duty, a ground for dismissal under Section 44(4)(a) and (c) of the Act. The trial court failed to interrogate the significance of the attendance records, the disciplinary notices and the efforts made through the Labour Office and Union representative. Instead, the court appears to have accepted the Respondent's allegations without subjecting them to the evidentiary threshold required under Section 47(5) of the Act. The awards to the Respondent are not justified. The Respondent was awarded Kshs. 138,690 being 9 months’ compensation for unfair termination, based on an alleged monthly salary of Kshs. 15,410.00. The respondent did not adduce any document to substantiate that she earned the pleaded amounts, even when her own alleged bank statements did not bear any such figure. The appellant admitted to paying a daily wage of Kshs. 652 as per the prevailing Daily Wages Order of 2022, paid on a bi-weekly basis for days worked. Where there was work for the month, a wage of Kshs. 13,040 would be paid. In **Komu v Sana Industries Limited [2025] KEELRC 75 (KLR),** the court, in addressing similar issues, held that termination of employment was based on lawful reasons and cannot attract compensation for unlawful termination. In this case, the respondent worked for under a month. The award of 9 months' compensation is excessive. No notice pay is due for desertion of duty. Regarding leave pay, the appellant submitted that this is regulated under section 28 of the Act. In **Rogoli Ole Manadiegi v General Cargo Services Limited [2016] KEELRC 1607 (KLR),** the court held that it was the employer's duty to keep employment records, including annual leave records. The employee must endeavour to prove his case on the balance of probabilities, even where such records are not made available. The trial magistrate erred in awarding Kshs. 32,361.00 of unpaid leave contrary to the express provision of the law. Service pay is not payable to the Respondent as the Appellant would remit NSSF to the Respondent’s account, subject to provision of the same. Thus, any claim for unremitted NSSF cannot be claimed through the court, as was held by the court in **Simiyu v Nzoia Sugar Company Limited (Employment and Labour Relations Claim E005 of 2021) [2022] KEELRC 1758 (KLR) (12 May 2022) (Judgment).** In the absence of proof of such terms from a contract of service, the Appellant persuades this court to abide by the decision of the **Fredrick Ngari Muchira, Howard Kipkoech Korir & 98 Others v Pyrethrum Board of Kenya [2013] eKLR** the court held in the absence of more favourable agreement between the management staff and the employer, the employees in the management cadre are entitled to 15 days' pay for each completed year of service as per Section 40(g) of the Act as there is no established basis for the court to order the employer to pay out at a higher rate of 30 days per year served. In this case, the appellant made remittances to the NSSF; hence, no service pay is due. On the award of underpayments, the respondent was paid Kshs. 652 per day in accordance with the Regulation of Wages (General) (Amendment) Order, 2022 applicable to employees working within former municipalities. The award of Kshs. 7,745 for underpayment ought to be vacated and the appeal allowed with costs. **Determination** This being a first appeal, the court may review the record, reassess the findings, and reach a conclusion. However, take into account that the trial court had the chance to see and hear the witnesses in court and hence give that provision. The case before the trial court related to several employees of the appellant. The appeal relates to one of its employees, the respondent, Hesina Mokeira. The respondent claimed that she reported to work in September 2023; the supervisor directed her to check the notice board for her name, but it was missing. She was directed to go home and would be recalled. She was not allowed to return to work and thus claimed an unlawful and unfair termination of employment. In reply, the appellant admitted that the respondent was a casual worker and was at work until 31 January 2024. To prove these assertions, the appellant produced the work sheets for 30 and 31 January 2024. This evidence is not contested. The appellant then asserts that it issued the respondent a notice to show cause after the respondent failed to report to work following her suspension. In this regard, the records filed indicate the following: 1. On 12 February 2024, the appellant issued the respondent a notice to show cause why she was absent from work from 30 and 31 January 2024 after joining work on 19 January 2024. That she worked for a week then absconded duty. The letter is copied to the Sub-County Labour Officer, Thika. 2. On 21 February 2024, the appellant wrote to the respondent a letter for return to work on the basis that her continued absence from 30 and 31 January 2024 was unlawful and desertion of duty. 3. On 29 February 2024, the appellant wrote to the respondent inviting her to the disciplinary hearing to be held at the company premises on 4 March 2024. She was informed to bring another employee of her choice. 4. On 13 March 2024, the appellant wrote to the respondent indicating that she had been invited to the disciplinary hearing on 4 March 2024 and refused to attend. She was thus invited to attend the disciplinary hearing on 18 March 2024. 5. On 8 April 2024, the appellant issued the respondent with notice of summary dismissal for gross misconduct and due to absenteeism and failure to attend the disciplinary hearing on 4 and 18 March 2024. All these notices are sent to the respondent through an address, WING K 5 or WING *K 5 PLATING.* In the written submissions, the appellant asserts that the respondent was on suspension. There is no notice that was issued to this effect. Fundamentally, the alleged absenteeism was on 30 and 31 January 2024. However, a worksheet confirms that the respondent was at work on both dates. The worksheet is attached by the appellant. The contradictions in the appellant's responses are apparent to the court. I take it that in September 2023, there were workflow disruptions when the respondent claimed that she did not find her name listed on the notice board. This could have escalated to January 2024 when she is recorded as having attended work from 19 January 2024 and then alleged to have been absent on 30 and 31 January 2024. The appellant, as the custodian of work records, was dealing with a workforce of 376 employees on any given day. Some were noted as *experienced,* and others were *new employees.* There could have been errors or mistakes in taking the records. On 31 January, the respondent is listed as present at work and she signed the register. However, her name is cancelled by hand. **The respondent was employee No. 369.** On 30 January 2024, the respondent is listed as employee No. 369, and she signed the worksheet. The respondent was preset at work based on the work records submitted from 19 to 31 January 2024. Why then would the appellant allege that she was absent, proceed to assert that she deserted duty, and issue her with various notices to show cause and disciplinary hearing for absenteeism for days where the records confirm she was at work? On the records, the court finds these are manipulated to suit a case of alleged desertion of duty. Sending a copy to the Labour Officer or the shop steward cannot sanitise an unlawful process based on wrongful procedures. This lends credence to the respondent's claim that she was unlawfully locked out of her workplace without due process or justification. The learned magistrate assessed the claims and held that, based on the duration of employment, there was a conversion of the employment terms and conditions from casual to those of an employee protected under section 37 of the Employment Act (the Act). In response, the appellant admitted that the respondent was a casual employee paid a daily wage and worked from 19 to 31 January 2024. The wages were paid every fortnight. As addressed by the learned magistrate, the casual employment converted to employment protected under the Act. The respondents' rights at work with the appellant were secured with rights and benefits under the Act. On the reasons leading to termination of employment, as analysed above, the records filed by the appellant demonstrate manipulation to support an alleged case of desertion of duty. This cannot suffice. It amounts to engaging in unfair labour practices as defined in **Kenya Ports Authority v Joseph Munyao & others**, **Petition No. E008 of 2023,** the Supreme Court of Kenya held: *… the right to “fair labour practices” encompasses the constitutional and statutory provisions and the established workplace conventions or usages that give effect to the elaborations set out in article 41 or promote and protect fairness at work. These include provisions for basic fair treatment of employees, procedures for collective representation at work, and, of late, policies that enhance family life while making it easier for men, women and persons with disabilities to go to work. …* *From the above definition unfair labour practice encompasses all conduct before, in the course of employment, during and after termination of employment. The provisions of Article 41 therefore encompass the full spectrum of labour practices. The provisions of Article 41 are borne from the realization that employment and/or the right to work is a human right. The right is also linked to other rights in the Bill of Rights, especially the protection of life and the dignity of a person. The right is therefore a principle with legal obligations.* In **Kimongo v Shrink Pack Limited [2024] KECA 678 (KLR)** the court defined what *constitutes unfair labour practices to include:* *“Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving –* 1. *unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;* 2. *unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;* 3. *a failure or refusal by an employer to reinstate or re-employ a former employee in* *terms of any agreement; and* 1. *an occupational detriment, other than dismissal, in contravention of the [the law]….* Indeed, the learned magistrate analysed the facts of the case and the law and held that the appellant failed to comply with the provisions of sections 35 and 43 of the Act. The appellant called the Huma Resources officer in evidence, who testified that notices were issued to the respondent and other employees to show cause and attend disciplinary hearings but failed to attend. However, there was no proof that the respondent received the notices. There is nothing to indicate that these letters were served. Hence, the respondent discharged the burden necessary under section 47(5) of the Act. These findings are correct in view of the analysis above. Further, the court finds the appellant engaged in unfair labour practices as defined above. On the claims made by the respondent before the trial court, the appellant has faulted the same on the basis that, having absconded duty, the respondent was not entitled to notice pay; that 9 months' compensation had no justification; that service pay is not due following statutory payments; and that accrued leave was not justified. On the findings above, where termination of employment is not justified, notice pay and compensation are due. The respondent was on a daily wage, however paid in a fortnight. With the protections under section 37 of the Act, upon the unfair termination of employment, she is entitled to one month in notice pay. Under paragraph 35 of the Memorandum of Response, the appellant confirmed that the daily wage paid to the respondent was Ksh. 652 in January 2024. Under the applicable Wages Orders for Ruiru, the due daily wage is Ksh. 672 thus an underpayment of Ksh. 20. The notice pay is Ksh. 672 x 30 = Ksh. 20,160. On the claim for compensation, the learned magistrate reviewed the facts and awarded 9 months' gross pay. Indeed, as submitted by the appellant, the allocated compensation must be based on reasons and justification. Aligning the maximum award of 12 months, the rationale for the award then required consideration and the reasons therefor. See **Kenya Broadcasting Corporation v Geoffrey Wakio [2019] KECA 65 (KLR)** and **Consolidated Bank of Kenya Limited v Njuguna [2026] KECA 1386 (KLR)** where the court has emphasized that the award of compensation must be based on sound judicial principles. The trial Judge must justify or explain why an employee is entitled to the award; that the exercise of discretion must not be capricious or whimsical. In this regard, the court takes into account the respondent's claim that she had remained in the appellant's service since 2010 as a Hand Piper and that her employment was unfairly terminated in January 2024. This is a period of over 14 years. The court takes into account the provisions of section 45(5) of the Act. The manner in which the employment was terminated is tainted by unfair labour practices. An award of 9 months well compensates the respondent in the given circumstances. The daily wage of Ksh. 672 x 30 x 9 = Ksh. 181,440. Regarding the claim for accrued leave days, this is a right under sections 37 and 28 of the Act. However, under section 28(4) of the Act, an employee cannot accumulate annual leave beyond 18 months unless with the written approval of the employer. In this case, without any records of the respondent taking annual leave under the appellant’s mistaken belief that she was a casual employee, she is entitled to leave for 18 months; the total due is 33 days on the daily wage of Ksh. 672 = Ksh. 22,176. On service pay and statutory deductions, this is not due. The respondent was neither unionised nor covered by a collective agreement. On the claim for house allowance, the daily wage of Ksh. 672 analysed above is inclusive of the house allowance. In assessing underpayments, which are a continuing injury, they accrue for only 12 months under section 89 of the Act. For 12 months, the underpayment on the daily wage was Ksh. 20.00 x 6 x 30 x 12 = Ksh.43, 200. NSSF deductions accrue to the statutory body, not the employee. On costs, the appeal is without merit. Costs are due to the respondent. However, the award of interest should sparingly be applied in employment matters. Once the employee is returned to the position subsisting before employment terminated by payment of notice pay and due terminal dues, the employer should not be penalised in costs and interest unless in exceptional cases. The interests awarded are not justified. Pay the due costs only. **Accordingly, the appeal analysed above is without merit, save on the judgment delivered on 29 July 2025 in Ruiru CMELRC No. E055 of 2024, the following orders are hereby issued:** 1. **Employment of the respondent was terminated by the appellant unfairly.** 2. **Compensation for 9 months at Ksh. 181,440.** 3. **Notice pay Ksh. 20160.** 4. **Leave pay Ksh. 22,176.** 5. **Underpayments Ksh. 43,200.** 6. **Costs of the appeal.** **Delivered in open court this 14th day of August 2026** **M. MBARŨ,** **JUDGE** **In the presence of:** Court Assistant: Kemboi ……………………………………………… and …………………………………..………