https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1538

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MACHAKOS** **ELRC APPEAL NO. E058 OF 2025** **SOFTCARE KENYA COMPANY LIMITED….…………………………………..…APPELLANT** **VERSUS** **PHAULTETTA NDINDA MUTUNGI……………………………………..……..…RESPONDENT** *(Being an Appeal from the* *Judgment and Decree of the Hon. D.K. Kuto (SPM) delivered at Mavoko on the 18th day of November, 2025 in Mavoko MCELRC No. E094 of 2024)* ***CORAM*** ***Before Lady Justice Jemimah Keli*** ***C/A Otieno*** **JUDGMENT** 1. The Appellant herein, being dissatisfied with the Judgment and Decree of the Hon. D. K. Kuto (SPM) delivered at Nairobi on the 18th day of November, 2025 in Mavoko MCELRC No. E094 of 2024 between the parties filed a memorandum of appeal dated the 16th of December 2025 seeking the following orders:- 2. **The appeal be allowed and the judgment and decree in the Magistrate’s Court be set aside.** 1. **The Appellant be allowed costs of this appeal and the costs in the Magistrates Court.** 2. **This Honourable Court be pleased to grant any other directions and reliefs as it may deem just and appropriate.** **GROUNDS OF THE APPEAL** 1. The Honourable Trial Magistrate erred in fact and in law in making a finding and declaring that the Respondent (the Claimant) was constructively dismissed. 2. The Honourable Trial Magistrate erred in fact and in law in making a finding that the Respondent's termination was unlawful, wrongful and unfair. 3. The Honourable Trial Magistrate erred in law and in fact by failing to find that the Respondent (the Claimant) was taken through a lawful and procedural disciplinary process before her voluntary termination. 4. The Honourable Trial Magistrate erred in fact and law by failing to appreciate and find that the Respondent (the Claimant) was only in the employment of the Appellant for a period of six months and that her contract had expired at the time of her voluntary exit from the Appellant's employment. 5. The Honourable Trial Magistrate erred in fact and law by failing to consider the submissions and authorities made on behalf of the Appellant. 6. Without prejudice to the above, the Honourable Trial Magistrate erred in law and fact when he awarded to the Respondent (the Claimant) an excessive, disproportionate, unprecedented, unconscionable, unjustified award of Kenya Shillings 259,668/- being 12 months' salary in compensation damages for unlawful, wrongful and unfair termination plus costs and interest of the Suit. **BACKGROUND TO THE APPEAL** 1. The Respondent filed a claim against the Appellant vide a memorandum of claim dated the 10th of November 2023, seeking the following orders:- 2. The Claimant herein prays that this Honourable Court declares that the Claimant's employment was terminated/dismissed unlawfully and/or wrongfully and awarded damages amounting to Kshs. 404,535.96/=. 3. An order directing payment to the Claimant of all the following terminal dues arising out of the period of service with the Respondent: * 1. Compensation Damages at 12 months' salary Kshs. 259,668/- 2. Service pay Kshs.79,896.96 /- 3. Unpaid leave arrears Kshs. 64,917/- 4. Certificate of service. 5. Costs of this suit. 6. Any other relief this Court deems fit to grant or order. (Pages 4-6 of the ROA dated 14th January 2026). 1. In support of his claim, the Respondent filed his list of documents dated 10th November 2023 with the bundle of documents attached; list of witnesses of even date; and witness statement of even date (See pages 14-50 of ROA). 2. The claim was opposed by the Appellant who entered appearance and filed a response to memorandum of claim dated the 6th of August 2024 (pages 9-11 of ROA). They also filed a list of witnesses dated 29th August 2024; witness statement of MARY MAWIA MULYUNGI of even date; and list of documents also of even date with the bundle of documents attached (pages 55-76 of ROA). 3. To counter the Appellant’s response, the Respondent filed a reply dated 2nd February 2025 (pages 12-13 of ROA). 4. The Claimant/Respondent’s case was heard on the 10th of July 2025, with the Claimant testifying in the case as CW1. She produced her documents as exhibits, and was cross-examined by counsel for the Respondent/Appellant, Mr. Ombeta (pages 111-113 of ROA). 5. The Respondent/Appellant’s case was equally heard on the same day, with the Appellant calling one witness MARY MULYUNGI to testify on its behalf as RW1. She relied on her filed witness statement as her evidence in chief and produced the Appellant’s documents as exhibits. She was cross-examined by counsel for the Claimant/Respondent, Mr. Magotsi (pages 112-113 of ROA). 6. Following directions that the parties file their respective written submissions, each party complied. 7. The Trial Magistrate Court delivered its judgment on the 18th of November 2025 partially allowing the Claimant’s claims in respect of Kshs. 2599,668/- being 12 months’ salary as compensation for unfair termination, plus costs of the suit and interest (Judgment at pages 118-121 of ROA and pages 1-6 of the Supplementary Record of Appeal dated 10th March 2026). **DETERMINATION** 1. The appeal was canvassed by way of written submissions. Both parties filed. Issues for determination 1. In their submissions dated the 10th of March 2026, the Appellant submitted on the grounds of appeal generally. 2. The Respondent identified the following issues for determination in her submissions dated 10th March 2026, namely:- * 1. Whether the Claimant was injured while working for the Respondent (Part Response to Grounds 1 & 2 of the Memorandum of Appeal) (Pages 15 -17 of the Record of Appeal). 2. Whether the Claimant’s Employment was Compulsorily Terminated without due regard to the Employment and Labour Laws of Kenya (Final Response to Grounds 1 & 2 of the Memorandum of Appeal) (Pages 118 -121 of the Record of Appeal). 3. Whether the Respondent was validly employed by the Appellant for a period of 2 years and 9 months at the time of her Constructive Dismissal (Response to Grounds 4, 5 & 6 of the Memorandum of Appeal) (Pages 19 -44 & 65 – 72 of the Record of Appeal). 1. Whether taking the Respondent through a Disciplinary Hearing had any value in the Appellant’s case (Response to Ground 3 of the Memorandum of Appeal) (Pages 65 – 72 of the Record of Appeal). 1. The grounds of appeal were as follows- 2. The Honourable Trial Magistrate erred in fact and in law in making a finding and declaring that the Respondent (the Claimant) was constructively dismissed. 3. The Honourable Trial Magistrate erred in fact and in law in making a finding that the Respondent's termination was unlawful, wrongful and unfair. 4. The Honourable Trial Magistrate erred in law and in fact by failing to find that the Respondent (the Claimant) was taken through a lawful and procedural disciplinary process before her voluntary termination. 5. The Honourable Trial Magistrate erred in fact and law by failing to appreciate and find that the Respondent (the Claimant) was only in the employment of the Appellant for a period of six months and that her contract had expired at the time of her voluntary exit from the Appellant's employment. 6. The Honourable Trial Magistrate erred in fact and law by failing to consider the submissions and authorities made on behalf of the Appellant. 7. Without prejudice to the above, the Honourable Trial Magistrate erred in law and fact when he awarded to the Respondent (the Claimant) an excessive, disproportionate, unprecedented, unconscionable, unjustified award of Kenya Shillings 259,668/- being 12 months' salary in compensation damages for unlawful, wrongful and unfair termination plus costs and interest of the Suit. 8. The court taking into account the above grounds of appeal was of the considered opinion that the issues for determination in the appeal were 9. Whether the trial court erred in finding unfair termination based on constructive dismissal 10. Whether the trial court erred in the relief granted Whether the trial court erred in finding unfair termination based on constructive dismissal 1. This being a first appellate court, it was held in Selle v Associated Motor Boat Co. [1968] EA 123 that:- *“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must 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 this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”* 2. The claim before the trial court was that-‘The Claimant and the Respondent entered into a contract of employment on 01/09/2020. The said contract was express and or implied. 4. The Claimant's contract of employment was wrongfully, illegally, and unlawfully terminated (Constructively Terminated) by the Respondent without due regard to The Employment and Labour Laws of Kenya. 5. The said termination of employment was on 11/07/2023. 6. The Claimant had therefore worked for the Respondent for 2 years and 9 months of faithful service when his contract was unilaterally terminated by the Respondent. 7. The Respondent never issued any legitimate reasons to the Claimant upon termination of employment……10. THAT on 11/07/2023, the Respondent decided to terminate the services of the Claimant without a written notice only informing him not to report on duty again..’(PAGE 4 and 5 of ROA) 3. The response was as follows-‘he Respondent denies the contents of Paragraph 3 and 6 of the Memorandum of Claim and avers that the Claimant was employed on fixed term contract of employment for six months commencing on 26/12/2022 and expiring on 25/06/2023. 4. The Respondent denies the contents of paragraph 4 & 5 of the Statement of Claim alleging that the Claimant's termination was constructive, and the Claimant is invited to strict proof thereof. 5. The Respondent denies the contents of paragraph 7 of the memorandum of Claim and states as follows: a. That the Claimant was diagnosed with a hearing impairment on 14/04/23 allegedly attributed to her working environment. b. According to the medical report, she was advised to avoid exposure to noise to avert further damage to her hearing ability. c. The same was communicated to the management and the management offered to transfer the Claimant from packaging operations to cleaning services, d. notwithstanding the fact that the Respondent's contract of employment had already expired. That the Claimant refused to take up the new duties reassigned to her and instead, she insisted on being given a new role as a security guard, a service that is outsourced by the Respondent and supplied by third parties. e. That upon her refusal to work as a cleaner, the Claimant was subjected to due disciplinary process and the end of the hearing, she chose to voluntarily terminate her services.’ 4. The respondent/claimant filed reply to the response as follows-‘The Claimant denies the contents of Paragraph 3 of the Respondent's Response to the Statement of Claim. The Respondent states that the Claimant's Contract was a fixed-term 26/12/2022-25/06/2023 and yet from their documents as of July 2023 the Claimant was still working for the Respondent. 4. The Employment Act is very clear. If and when an employee contract lapses, proper communication ought to be given to the Employee by the Employer. Failure to give such Notice and thereafter continue engaging the Employee means that the Employee's contract is automatically renewed. 5. The Claimant denies the contents of Paragraph 4 of the Respondent's Response to the Statement of Claim. Constructive Termination means that the Employer has introduced alien/foreign/harsh/difficult terms to the terms of the Employee's contract making it difficult for the Employee to perform her duties. This was the case between the Employer and the Employee. 6. The Claimant denies the contents of Paragraph 5 of the Respondent's Response to the Statement of Claim. The Respondent has not denied that the would-be new workstation for the Claimant (as a toilet cleaner) is well inside the factory and within the vicinity of the factory noise. This would-be new posting would continue to harm the being of the Claimant hence the Constructive Dismissal of the Claimant. 7. The Claimant denies the contents of Paragraphs 6 and 7 of the Respondent's Response to the Statement of Claim and puts the Respondent to strict proof. ’ 5. The claimant produced the letter of termination before the trial court, which stated as follows: 'Phauletta Ndinda Mutungi 1D. No. 31833886 Packaging Worker KN HPF Diapers vs Dear Phauletta P.O. BOX 6780 ATHI RIVER NAIROBI, KENYA +254 0113 222 732 July 11, 2023 RE: Confirmation of Voluntary Termination of Employment Contract We hope this letter finds you well. This letter serves as confirmation of our discussion regarding the reallocation of duties due to your ear problem, as recommended by your doctor. During our conversation/meeting on 6th July 2023, in HR meeting room, you expressed your refusal to accept the reassignment of duties and indicated your intention to voluntarily terminate your employment with Softcare Kenya Company limited. We understand that your doctor advised you to avoid noise in order to manage your ear problem effectively. As a ult, the company proposed a reassignment of duties to minimize your exposure to noisy environment. During the proceedings, it was communicated that you were offered a cleaner job as a reallocation of duties to accommodate your health condition related to your ear problem. However, you declined this reallocation and expressed your decision to resign from your position with the company "if the management does not agree with your way - (to give you a job of your choice - (Security assignment). In this context, we regret that we were unable to find a suitable resolution that would have allowed you to continue your employment with us. We respect your decision to prioritize your health and well-being. We acknowledge that you have chosen to pursue other opportunities that align more closely with your career goals while considering your health concerns. Based on our discussion, your last working day will be 11th July 2023. We appreciate your understanding that, due to the unique circumstances surrounding this termination, there is no formal notice period specified. All the same, should circumstance change in the future, and your health permits, we would be open to considering it application for re-employment, taking into account our operational requirements and your qualifications. Note that, you will be paid your final dues as per Company guidelines after successful handing over/clearance. . Once again, we extend our gratitude for your support and wish you all the best in your future endeavours. Yours faithfully, Human Resource Department. (letter at page 18 of ROA). The letter was signed as received by the respondent 6. The witness statement of the respondent/claimant was as follows- ‘STATEMENT OF PHAULTETTA NDINDA MUTUNGI I, PHAULTETTA NDINDA MUTUNGI of c/o P.O BOХ 58803-00100, a resident of Nairobi within the Republic of Kenya do hereby make oath and state as follows: 1. THAT I am a female adult of sound mind and the claimant herein and as such, versed with the facts of this claim and thus competent to write this statement. 2. THAT the Respondent and I entered into a contract of employment. The said contract was express and/or implied. 3. THAT I worked for the Respondent for 2 years and 9 months of faithful service when my contract was unilaterally terminated by the Respondent. 4. THAT I worked for the Respondent as a Diaper Packer. The said job was done in a very noisy environment. My colleagues and I worked in the said factory without any protective gear. 5. THAT on or around mid-2022 I started developing mild migraines which later developed into severe migraines. I sought medical attention from time to time and I was treated by being given painkillers. 6. THAT, however, the migraines never stopped and I sought further medical attention. I visited numerous hospitals as I sought alternative medical assistance. 7. THAT on or around April and or May 2023, I was diagnosed with a condition known as Bilateral High-Frequency Hearing Loss. 8. THAT the cause of this condition was occasioned by the loud voice inside the factory, in the diaper packaging sections where I worked for the Respondent. It is important to Note that while working for the Respondent, the Respondent never provided proper protective gear such as Noise Cancelling Headphones for employees. 9. THAT due to the Respondent's negligence, I am partly deaf, hence I have a deformity. 7 Page 48 10. THAT on visiting the different hospitals I was advised to stay away from noisy backgrounds such as the factory owned by the Respondent. 11. THAT I shared all the medical documents with my supervisors from work. 12. THAT since I still had a valid contract, I implored my employer, who is the Respondent herein to transfer me to their security department (Sunda Security). The security department was outside the factory, far away from the industrial noise. 13. THAT I met the Human Resource Manager and the Legal Team for the Respondent who vehemently denied my prayer to be transferred to the security department. 14. THAT the said Respondent's team insisted that I start working in the toilets as a toilet cleaner. The said toilets are inside the Respondent's factory hence proximity to more noise. In working in the said toilets, I was bound to lose the little remaining hearing that I had left. 15. THAT I explained my predicament to staff for the Respondent but they vehemently insisted that it is either I work in the noisy environment, and put my health at risk or resign. 16. THAT I indicated to the said staff that I would not be willing to risk my health on behalf of the Respondent. 17. THAT is when the Respondent unfairly, unprocedural, and illegally Compulsorily Terminated my employment. 18. THAT my contract and/ or employment was wrongfully, illegally, and unlawfully terminated by the Respondent without duę regard to The Employment and Labour Laws of Kenya. 19. THAT I entered into a contract with the Respondent on or around 01/09/2020 and I served the Respondent well and with an impeccable record. 20.THAT the said termination of employment was on 11/07/2023.’’ 7. Conversely, the appellant’s /respondent’s witness statement before the trial court was as follows: ' By a contract of employment dated 26/12/2022, the Claimant was offered an opportunity for employment by the Respondent as a packaging operator within the Diaper Department. (Refer to a copy the Contract of Employment dated 26th December 2023 being document number 1 on page 1-5 of the Respondent's List/Copies of Documents) 3. The employment contract had the following material terms and conditions: - a) The Contract was for a fixed term period of 6 months commencing on 26/12/2022 and expiring on 25/06/2023. b) The Claimant would be entitled to annual leave of 21 days, i.e. 1.75 days for each completed month of work. c) Entitlement to final dues payable at the end of the contract period. 4. The Claimant was diagnosed with a hearing problem on 14/04/2023 which was allegedly attributed to her working environment. 5. The Claimant was advised to avoid exposure to noise to avert further damage to her ear according to the medical note. 6. The Claimant communicated to the Respondent's management about her impending hearing problem and upon consideration and deliberation, it was agreed that she should be transferred from packaging operations to cleaning services despite expiry of her employment contract. (Refer to a copy the Letter dated 27th June 2023 being document number 2 on page 6 of the Respondent's List/Copies of Documents) 7. The Claimant refused to take up the new cleaning duties assigned to her and instead insisted on being given a new role as Security Guard notwithstanding that security services are 56 57 outsourced by the Respondent and provided by a third party. Needless to mention, the Claimant did not possess the required skills of a security guard. 8. The Claimant refused to take up lawful instruction for her new role from 26th June 2023 to 1st July 2023 and consequently she was invited to a disciplinary hearing vide a letter dated 4th July 2023. (Refer to a copy the Letter dated being document number 3 on page 8 of the Respondent's List/Copies of Documents) 9. The Claimant was subject to a disciplinary hearing on 6th July 2023 and minutes of hearing were recorded but the Claimant refused to sign against the minutes. (Refer to a copy the Letter dated being document number 4 on page 9-13 of the Respondent's List of Documents) 10. The Claimant's refusal to take up her new role left the management with no choice but to accept her voluntary separation from the Company and the decision was communicated to the Claimant vide a letter dated 6th July 2023. (Refer to a copy the Letter dated being document number 5 on page 14 of the Respondent's List/Copies of Documents)’’ The appellant produced the letter of re-assignment dated 27th June 2023 as follows-‘27th June 2023. This is to inform you of the management's decision to transfer you from the production assignments to cleaning assignments effective 26.06.2023. The transfer is necessitated by the doctors report that you submitted to the HR Department dated 14th April 2023. In the report, the doctor had advised we move you to a place with minimum or zero noise. In follow up conversations you had also stated that though the noise levels were low in the factory they somehow caused some occasional irritation on your end. Pursuant to the issues raised above, the HR Representatives held a lengthy meeting with you on 26th June 2023 at 1600hrs in the HR Meeting Room, where we discussed the decision to transfer you to the cleaning section. This is therefore a follow-up letter requesting you to report to your new duties on 27th June 2023 as per the discussions and conclusions made in the meeting. The company shall provide you with all the necessary PPE, equipment and too is required for you to deliver in your new assignment.’’(page 65 of ROA). 8. The appellant produced a letter dated 4th July 2023 before the trial court for disciplinary proceedings which stated as follows-' RE: Disciplinary hearing meeting. We refer you to several meetings you have had with management and particularly with the HR team. These meetings were prompted by your alleged sickness as described in your medical note dated 14th April 2023 from Machakos Hospital and whose details are within your knowledge. Further, take note of our latest meeting held on 1st July 2023 which resulted to you being released from work to take a rest until 6th July 2023. This decision was necessitated by your failure to cooperate with the management in allocating a suitable assignment. You are very much aware that from 26th June 2023 to 1st July 2023, you refused to take lawful instructions by refusing to do the assigned duties. In view of the above, the management has decided to have another meeting with you on the 6th July 2023 at 10am in the HR meeting room. The purpose of this meeting will be; to discuss more on how the management can accommodate you in reference to your alleged sickness, job/position/placement options and to summarise all other discussions in order to find a better solution for your problems. Note; This will be treated as a disciplinary meeting. In compliance with the Employment Act 2007 section 41(1), you are entitled to have any employee of your choice present during the hearing. Also if there are any significant documents, communications or any references you wish to produce or present as evidence +the hearing as part of your response during the hearing please provide copies of the same to the undersigned prior to the meeting Note, should for any unavoidable reason, you or your companion cannot attend the meeting as scheduled, please contact me (the undersigned) immediately.’(PAGE 66 OF ROA ) The letter was signed by the respondent. 9. The appellant produced the internal hearing proceedings of which the respondent refused to sign, stating she did not understand anything. 10. During cross-examination the respondent told the trial court as follows- ‘My contract was over but they renewed. No medical examination was done. I was given work of washing. I refused to pick the washing work. I requested for security. I was taken for disciplinary hearing. I had a problem, with hearing. I have nothing to show. The security of the company was employed by it. I have no pay slip for July. I was paid for June.’ (PAGE 113 of ROA) 11. During cross-examination of the appellant witness, they told the court as follows-‘Contract shows when contract lapsed. 25/6/2023 was when last contract was to lapse. She was not terminated. We just reallocated her. It is fixed term contract so notice was needed. She was not given a new contract after the last lapsed. Toilet is next to the gate. I did not capture in the statement. She was paid her dues. That was any balances that was paid.’ (page 114 of ROA are the verbatim proceedings). 12. The trial court applied case law on constructive dismissal and held as follows- ‘In this case, I have found that the claimant was constructively dismissed. It is the actions of the Respondent that led to this. The termination can therefore not be said to be lawful whichever way one looks at it.’ This court found that the trial court did not justify its reason. The court reading the documents produced before the court it was clear the respondent refused transfer as a cleaner of toilets. On perusal of the material before the court it was apparent that the respondent wanted a job of her choice, namely security, which the appellant explained was not available. I find the respondent was reasonably accommodated by the transfer. During the hearing before the employer the respondent did not indicate the refusal to be deployed as a cleaner was because of noise. The court found that toilet cleaning was not a preferred occupation for the respondent. The documents produced by the appellant were not contested. The respondent claimed injury at the workplace. That claim falls under WIBA, and the Director of Occupational Safety and Health Services has a duty to assess the respondent’s injury and compensate her accordingly. 13. The court sympathized with the condition of the respondent, but that did not justify the finding of constructive dismissal. The contract was terminated as the respondent refused deployment which is a management prerogative of the employer. There was compliance with section 41 of the Employment Act. The employee did not terminate the employment for constructive dismissal to be invoked. The claim of constructive dismissal was not proved by the Respondent on a balance of probabilities as held in Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] KECA 394 (KLR). The legal principles pronounced by the Court of Appeal to prove constructive dismissal include the following: 14. *What are the fundamental or essential terms of the contract of employment?* 15. *Is there a repudiatory breach of the fundamental terms of the contract through conduct of the employer?* 16. *The conduct of the employer must be a fundamental or significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.* 17. *An objective test is to be applied in evaluating the employer’s conduct.* 18. *There must be a causal link between the employer’s conduct and the reason for employee terminating the contract i.e. causation must be proved.* 19. *An employee may leave with or without notice so long as the employer’s conduct is the effective reason for termination.* 20. *The employee must not have accepted, waived, acquiesced or conducted himself to be estopped from asserting the repudiatory breach; the employee must within a reasonable time terminate the employment relationship pursuant to the breach.* 21. *The burden to prove repudiatory breach or constructive dismissal is on the employee* 22. *Facts giving rise to repudiatory breach or constructive dismissal are varied.’’* The court found there was no case of constructive dismissal. The dismissal was based on the ground of refusal to transfer to perform another duty, of which the Respondent refused, as she preferred another job that was not available, and the termination complied with section 41 of the Employment Act. The respondent never resigned for constructive dismissal to be invoked. Her services were terminated. The court was persuaded that the employer offered reasonable accommodation, but the employee was not cooperative without a valid reason. The decision of the trial court is set aside. *Whether the appellant was entitled to reliefs granted* 1. The trial court held that the Claimant/respondent was constructively dismissed and therefore, the termination was unlawful, wrongful and unfair. The trial court then granted the following relief- 1. Compensation Damages at 12 months' Salary - Khs 259, 668/= 2. Certificate of Service. 3. Costs of the claim. 4. Interest at court rates. The court found no proof of constructive dismissal and set aside the decision. On appeal, the Court holds the termination was lawful and procedural. 2. The court found it was not in dispute that the certificate of service had not been issued. That is a breach of section 51 of the Employment Act. The court for this reasons penalizes the appellant to pay notice pay of 1 month's salary. The judgment of the trial court is set aside and substituted with a judgment for the claimant against the respondent as follows- 1. Notice pay of 1 month salary Kshs. 21, 639/= 2. Certificate of service to issue under section 51 of the Employment Act within 15 days though the respondent’s office 3. Costs and interest at court rate from date of filing suit. 3. I make no award on costs at appeal as the appeal was not fully successful and the court noted that the respondent had a claim for work injury against the appellant not determined under WIBA. To temper justice with mercy, I make no order as to costs. 4. It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 5TH DAY OF JUNE, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Appellant – Ombeta Respondent - Magosti