https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1535

Shangcheng Kenya Apparel EPZ v Kimondiu (Employment and Labour Relations Appeal E047 of 2025) [2026] KEELRC 1535 (KLR) (5 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1535 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Machakos Employment and Labour Relations Appeal E047 of 2025 JW Keli, J June 5, 2026 Between Shangcheng Kenya Apparel Epz Appellant and Lucia Ndunge Kimondiu Respondent (Being an Appeal from the Judgment and Decree of the Hon. D.K. Kuto (SPM) delivered at Mavoko on the 10th day of October, 2025 in Mavoko MCELRC No. E164 of 2024) Judgment 1.The Appellant herein, being dissatisfied with the Judgment and Decree of the Hon. D.K. Kuto (SPM) delivered at Mavoko on the 10th day of October, 2025 in Mavoko MCELRC No. E164 of 2024 between the parties filed a memorandum of appeal dated the 2nd of October 2025 seeking the following orders:-a.The appeal be allowed with costs.b.The judgment and decree of the Chief Magistrate delivered on 4th September 2025 in Mavoko CM ELRC Case No. E164 of 2024 be set aside.c.The Respondent's entire claim in the lower court be dismissed with costs.d.The costs of this appeal be awarded to the Appellant. Grounds Of The Appeal 2.The Honourable Trial Magistrate erred in law and fact in holding that the Respondent's employment was unfairly terminated despite the Claimant failing to adduce any evidence to prove dismissal. 3.The Honourable Trial Magistrate erred in failing to appreciate that the Claimant absconded duty on [insert date] and thereafter remained unreachable, which made it impossible for the Appellant to serve her with notice to attend disciplinary hearings or warning letters. 4.The Honourable Trial Magistrate misapplied the law on the burden of proof by requiring the Appellant to prove that it did not dismiss the Claimant, whereas under Section 47(5) of the Employment Act and Sections 107-109 of the Evidence Act, the Claimant bore the initial burden of proving the fact of termination before the burden could shift to the employer to justify the reasons for termination. The Claimant having tendered no dismissal letter, witness, or other evidence of termination, the court erred in law in shifting the evidential burden prematurely to the Appellant. 5.The Honourable Trial Magistrate failed to apply Sections 43 and 45 of the Employment Act correctly, by finding unfair termination without proof of termination by the employer. 6.The Honourable Trial Magistrate erred in awarding the Respondent a sum of Kshs. 137, 671.29 plus costs and interest despite the claim being unproven, speculative, and unsupported by evidence. 7.The Honourable Trial Magistrate misdirected herself in law by holding that the Appellant ought to have issued warning letters and notices of hearing, when the evidence showed the Claimant had absconded and was unreachable. 8.The Honourable Trial Magistrate failed to consider and give due weight to the Appellant's evidence, including attendance records and testimony demonstrating abandonment of duty by the Claimant. 9.The Honourable Trial Magistrate erred in awarding costs and interest against the Appellant in favour of the Respondent contrary to the evidence and applicable principles. Background To The Appeal 10.The Respondent filed a claim against the Appellant vide a memorandum of claim dated the 18th of July 2024, seeking the following orders:-a.A declaration that the Claimant termination was unfair and unlawful.b.An order for payment of the Claimant’s terminal dues and damages by the Respondent amounting to Kshs. 300, 777. 74/= as particularized in paragraph 14 above.c.The Respondent be ordered to issue the Claimant with a Certificate of Service.d.Interest on (b) above.e.Costs of this suit to be borne by the Respondent.f.Any other relief that this Honourable Court may deem fit to grant in the circumstances.(Pages 3-6 of the ROA dated 20th April 2026). 11.In support of his claim, the Respondent filed his list of witnesses dated 18th July 2024; witness statement dated 22nd July 2024; and list of documents of even date with the bundle of documents attached (See pages 8-29 of ROA). 12.The claim was opposed by the Appellant who entered appearance and filed a response to claim and counterclaim dated the 4th of February 2025, seeking the following orders:a.A declaration that the Claimant/Respondent was in breach of their contractual obligations as set out under clause 11 and 14.1 of the contract of employment dated 5th January 2024.b.An order for payment of a total sum of Kshs. 53,438.12 being specific and general damages as particularized in Paragraph 21 above.c.Interest on (b) aboved.An Order dismissing the Claimant's/Respondent's claim with costs.e.Costs of this suit to be borne by the Claimant/Respondent.f.Any other relief that this Honourable Court may deem fit to grant in the circumstances.(pages 32-37 of ROA). 13.Alongside their response and counterclaim, the Appellant also filed a list of witnesses dated 4th February 2025; witness statement of VALENTINE MULUPI of even date; and list of documents of even date with the bundle of documents attached (pages 38-55 of ROA). 14.To counter the Appellant’s response and counterclaim, the Respondent filed a reply and defence to counterclaim dated 15th April 2025 (pages 56-59 of ROA). 15.The Appellant did not attach the proceedings. The court was thus only able to determine one issue, of whether the appeal was proper. 16.Following directions that the parties file their respective written submissions, each party complied. 17.The Trial Magistrate Court delivered its judgment on the 4th of September 2025 partially allowing the Claimant’s claims to the tune of Kshs. 137,671.29 comprising of salary from 5th May 2024 to 21st June 2024; salary in lieu of notice; and 5 months’ salary as compensation for unfair termination, plus costs of the suit and interest (Judgment at pages 70-72 of ROA). Determination 18.The appeal was canvassed by way of written submissions. Both parties filed. Issues for determination 19.In their submissions dated the 7th of May 2026, the Appellant identified the following issues for determination:i.Whether the Respondent proved that her employment was terminated by the Appellant.ii.Whether the Learned Magistrate misapplied the law on burden of proof.iii.Whether the finding of unfair termination was legally sustainable. 20.The Respondent identified the following issues for determination in her submissions dated 8th May 2026, namely:i.Whether the Appellant herein is entitled to the reliefs sought in the Memorandum of Appeal herein dated 2nd October, 2025.ii.Who should bear the costs of this appeal. 21.The court having perused the record of appeal and the issues by the parties finds the issues for determination in the appeal were-a.whether the appeal is properIf (b) is negative, the court would not determine the appeal on merit for lack of proceedings but would hold the same in abeyance to enable the appellant comply. Whether the appeal is proper 22.The court found on record a ruling of the trial court delivered on the 19th December 2025 by Hon D. Kuto (SPM). The ruling was on the Notice of Motion application dated 16th September 2025 by the appellant and sought for the following orders:a.That this Honourable Court be pleased to review and set aside its Judgment.b.That upon review, this Honourable Court do find and hold that the Claimant/Respondent committed perjury by falsely alleging unlawful termination of employment while in fact she had absconded duty at the Respondent's establishment and was gainfully employed at Top New Knitwear MFG EPZ Limited from 24/6/2024.c.That the Claimant's entire claim in Mavoko CM ELRC No. E164 of 2024 be Dismissed with costs.d.That pending the hearing and determination of this application, there be an order of stay of Execution of the Judgment and Decree delivered on 4/9/2025.e.The costs of this application be provided for. 23.The trial court considered the review application and held as follows- ‘‘As indicated, this court rendered a Judgment after considering what was placed before it. My duty was to find if the applicant has satisfied the conditions for review. I find that it has not. I do not think it will be proper for me to begin analysing whether the Claimant absconded or not or whether Sections 41 and 44 an applicable. That will amount to hearing the matter again without "hearing the parties." In any event, such issues were determined in the Judgment. In the Upshot, I find no merit in the Applications. I dismiss the applications with costs’ 24.The respondent submitted as follows: ' Firstly, the present appeal was irregularly filed, and therefore it is erroneous and should be struck out. At the time the Appellant registered and filed the present appeal before this Honourable Court on 2nd October, 2025, the Appellant had lodged and was proceeding with an application for review of the Judgment delivered on 4th September, 2025 before the Honourable Trial Magistrate Honourable Derrick Kuto (Mr), in the primary suit, Mavoko ELRC No.E164 of 2024. The application for review before the Honourable Trial Magistrate Honourable Derrick Kuto (Mr) was filed on 17th September, 2025; it was heard and determined and a ruling delivered on 19th December, 2025. The law is clear that if a review is filed first, one cannot file an appeal simultaneously, as the review must be finalized. Order 45 Rule 1 of the Civil Procedure Rules provides the specific grounds for review; it states: (1) Any person considering himself aggrieved— (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is hereby allowed and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being Respondent, he can present to the appellate court the case on which he applies for the review;’ 25.The appellant did not address the court on this, but produced the ruling in the record of appeal. Does the court have jurisdiction when the appellant elected to seek review of the judgment before the trial court and a decision was issued? I find in the negative, taking into account the provisions of Rule 74 of the Court rules, to wit-‘ 74. Review(1)A person who is aggrieved by a decree or an order from which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed, may within reasonable time, apply for a review of the judgment or ruling—(a)if there is discovery of a new and important matter or evidence which, despite the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made;(b)on account of some mistake or error apparent on the face of the record;(c)if the judgment or ruling requires clarification; or(d)for any other sufficient reason.(2)An application for review of a decree or order of the Court under subrule (1) shall be made to the judge who passed the decree or made the order sought to be reviewed or to any other judge if that judge is not attached to the Court station.(3)A party seeking review of a decree or order of the Court shall apply to the Court by way of notice of motion supported by an affidavit and shall file a copy of the Judgment or decree or ruling or order to be reviewed.(4)The Court shall, upon hearing an application for review, deliver a ruling allowing or dismissing the application.(5)Where an application for review is granted, the Court may review its decision to conform to the findings of the review or quash its decision and order that the suit be heard again.(6)An order made for a review of a decree or order shall not be subject to further review.’ The appellant elected to seek review before the trial court, and a decision was made. It is not open for the appellant to file an appeal. The appellant is bound by its choice. The appeal is improper for the foregoing reason and is struck off the record with costs to the respondent. The file is closed. 26.It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 5TH DAY OF JUNE, 2026.JEMIMAH KELI,JUDGEIn The Presence Of:Court Assistant: OtienoAppellant – WanguiRespondent – Mugo