https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1696

Nthembwa v Veew Distributors Ltd (Employment and Labour Relations Appeal E121 of 2025) [2026] KEELRC 1696 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1696 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Appeal E121 of 2025 NJ Abuodha, J June 19, 2026 Between Stephen Nthembwa Appellant and Veew Distributors Limited Respondent (Being an Appeal from the whole Judgment of Honourable Principal Magistrate T.M. Olando which was delivered on 9th April, 2025 in Milimani MCELR Cause No. E1504 OF 2019) Judgment 1.Through the Memorandum of Appeal dated 25th April, 2025 the Appellant appeals against the whole judgment of Hon. T.M Olando delivered on 9th April,2025. 2.The Appeal was based on the grounds that:a.The Learned Magistrate erred in law and in fact in finding that the Appellant was not terminated from employment by the Respondent.b.The Learned Magistrate erred in law and in fact in finding that the Appellant absconded duty and did not prove his case for Unfair Termination to the required standard.c.The Learned Magistrate erred in law and in fact in finding that the Appellant did not prove his case for Notice Pay to the required standard.d.The Learned Magistrate erred in law and in fact in dismissing the prayer for Underpayment on the ground that the Appellant did not produce the relevant gazette notice (Regulation of Wages Order) in court, contrary to Section 60(1) (a) of the Evidence Act.e.The Learned Magistrate erred in law and in fact in not considering the Claimant’s oral evidence and written submissions while considering the judgement.f.The Learned Magistrate erred in law and in fact in failing to take into account all the factors and the law and thereby came to a wrong conclusion in its judgement. 3.The Appellant prayed that the Appeal be allowed and the Judgment of the learned trial Magistrate be set aside and or varied with costs to the Appellant. 4.The Appeal was disposed of by written submissions. Appellant’s Submissions 5.The Appellant’s Advocates Lemmy Regau & Company Advocates filed written submissions dated 13th October, 2025. Counsel relied on the case of Abok James Odera t/a Aj Odera & Associates v John Patrick Machira t/a Machira eKLR on the role of the first appellate court. 6.On the issue of whether the trial court erred by finding that the Appellant absconded duty and did not prove his case for unfair termination to the required standard and whether the Appellant proved notice pay counsel submitted that the Appellant's case before the trial court was that he was issued with a notice to Show Cause Letter by the Respondent on the 15th September 2018. He responded to the letter on the very same day and had a meeting with the Respondent's Human Resource Manager. The Appellant was then issued with a suspension letter dated 15th September 2018 suspending his services until completion of the investigation. He was informed that he would be called after the investigations were completed. The Appellant was never contacted and the Respondent stopped remitting his salary. The Appellant construed this as a constructive dismissal. 7.It was submitted that the Respondent's case at the lower court was that the investigations were concluded and the Appellant was invited to the office to discuss the matter. However, the Appellant allegedly never showed up for the meeting and the Respondent deemed the Appellant to have absconded duty. 8.Counsel submitted that the trial court in its Judgement held that it had not seen evidence of constructive termination and that the only conclusion it could arrive at was that the Claimant absconded work. 9.It was submitted that the Appellant's submissions at the lower court highlighted the fact that the Appellant's prolonged suspension was unfair and amounted to a termination of employment. He highlighted the case of Donald Mumo Mose V Mid-Wave Freighters Limited (2014) on the same. Counsel reiterated the Appellant's position in the lower court that the Respondent's conduct of suspending him for a long period without pay amounted to a constructive termination of the Appellant's employment relationship with the Respondent. Counsel relied on the Court of Appeal in Coca Cola East & Central Africa Limited V Maria Kagai Ligaga [2015] eKLR, on what amounts to constructive dismissal. 10.Counsel submitted that remuneration of an employee's salary is one such issue that goes to the root of a contract. Further, at paragraph 3 of the Suspension Letter the Respondent informed the Appellant that "your employment is continuous during your suspension and your terms and conditions of employment continue to apply". That the Respondent's assurance via the suspension letter that the Appellant's terms of employment would continue followed by the breach thereof showed that the Respondent was discharging himself from further performance and thus effectively termination the employment contract by its conduct. 11.It was submitted that the Respondent's submissions in the lower court was that the Appellant was summoned a week after the suspension but refused and/or declined to attend the meeting thus being deemed to have absconded. That it is the employer's duty to prove that a termination of employment was procedural. That in the present case the Respondent failed to produce any evidence before the trial court to establish that the Appellant was informed of the lifting of his suspension. No witness testified to having contacted the Appellant, no call records were submitted and no written communication was provided to show that the Appellant was notified of this development. 12.Counsel submitted that the Respondent also submitted in the lower court that the Appellant's employment had lapsed by effluxion of time, and that there was, therefore, no termination. In support of this position, the Respondent relied on a letter of appointment dated 1st October 2016, said to be effective for a fixed term of two years ending on 30th September, 2018. 13.On the issue of whether the trial court erred by dismissing the prayer for underpayment on the ground that the Appellant did not produce the relevant gazette notice (Regulation of Wages Order) in court, contrary to Section 60 (1) (a) of the Evidence Act counsel submitted that Gazette Notices form part of the written laws of Kenya and are matters of public record. As such, the trial court ought to have taken judicial notice of the relevant Gazette Notice pursuant to Section 60(1)(a) of the Evidence Act. The failure to do so amounted to misdirection in law. 14.That the Respondent's own witness confirmed that the Appellant served in a dual capacity as both a Salesman and a Driver. According to The Regulation of Wages (General) (Amendment) Order, the applicable minimum wage for a Salesman-Driver was as follows: Kshs. 30,627/- per month in 2018; Kshs. 29, 169/- in 2017; and Kshs. 24,719/- from 2015 to April 2017. It was therefore evident that the Appellant was entitled to remuneration in accordance with these prescribed minimum wage rates during the respective periods of his employment. 15.That the evidence on record clearly establishes that the Appellant was underpaid in breach of the prescribed minimum wage, and the appropriate relief should be a substitution of the dismissal with an award of underpayment amounting to Kshs.182,046/. 16.Counsel submitted that this honourable court should substitute the trial court’s judgement by awarding the notice pay, compensation for unfair termination, underpayment and the house allowance award by the trial court be upheld. Respondent’s Submissions 17.The Respondent’s Advocates, Mwaniki Njuguna & Company Advocates filed written submissions dated 29th January, 2026 and relied on the case of Haria & another v Shan (Civil Appeal 362 of 2018) 12024) KECA 527 (KLR) on the role of the first appellate court. 18.On the issue of whether the Appellant proved his case on a balance of probabilities on both substantive and/or procedural fairness or lack thereof during the trial stage counsel relied on Section 107(1) of the Evidence Act on burden of proof. That the burden of proof in all litigation matters always lies on the party alleging the same, in the present case the burden of proof was on the Appellant herein and/or the Claimant as he was then in the Subordinate Court. 19.On the question of substantive fairness counsel submitted that the Appellant testified that there was no valid reason that existed to warrant the Respondent herein terminating his services. The Appellant herein did not adduce any evidence the sum total of which would indicated that there was no valid reason behind the Respondent's actions therein of suspending him. 20.It was submitted that the Respondent herein produced a letter of explanation in the Appellant's own hand dated 15th September where the Appellant admitted to the presence of 'leakers' in his designated motor vehicle and admitted to have abrogated his duties and vowed not to do so in future and begged the Respondent not to terminate his services. 21.Counsel submitted that Sections 44(4)(c) and 44(4)(g) of the Employment Act provides for summary dismissal of an employee who does not perform his duties as required or steals employer’s property. That there was substantive fairness for there was a valid and legal reason for terminating the Appellant’s services, the same being, that the Appellant abrogated his duties and as a consequence of said abrogation of duties lead to the theft of the Respondent's property. 22.On the question of procedural fairness counsel relied on Section 41 and 45 of the Act that an employee must be notified of the reasons why the employer is considering terminating his services and that the reasons must not be within the exceptions contained in Section 46 of the Act. That in the present case, the Appellant testified that he was found with leakers in his designated motor vehicle and a Show Cause Letter was issued to him mandating him to respond to allegation leveled against him. The Appellant testified that after he was issued with a Show Cause letter, he did a response in the form of a letter of explanation as seen above. 23.It was submitted that after the Appellant herein wrote the letter of explanation, he was put on suspension to allow investigations be carried out. The Appellant herein alleged that the Respondent convened an unprocedural disciplinary hearing. The Appellant did not expound and/or explain what made the disciplinary hearing convened unprocedural in any way, form, fashion or construction of the word. Counsel relied on section 41 of the Act on procedural fairness where an employee should have a fellow employee during hearing but the Appellant did not exhaust this provision. 24.It was submitted that one of the terms of suspension was that the Appellant would be available for meetings and/or summons during his suspension. The Appellant further stated that he was not summoned back after his suspension and that is when his services were constructively terminated. The Respondent testified that the Appellant was summoned back to the Respondent's office by the then Human Resources officer, one Jane Kamau, about a week after the suspension but the Appellant was a no show. 25.This begs the question, whether a one-week suspension is unreasonable and/or unprocedural? Counsel submitted that a one-week suspension is not unreasonable nor is it unprocedural as it allowed the conclusion of investigations therein. The Appellant during cross-examination stated that he was not given a chance to defend himself but in the same breath stated that there was a disciplinary meeting held and that he gave his defense. 26.On the issue of whether the Respondent defended and/or disproved allegations leveled against it by the Appellant during the trial stage counsel submitted that the Respondent during the trial court stage proved to the Honourable Court's satisfaction that there was substantive and procedural fairness leading to the Appellant's suspension. The Respondent herein during the trial court stage alleged that the Appellant absconded his duties after his suspension was lifted and after he was a no-show after being summoned to the Respondent's offices for a follow up on the outcome of the investigations about a week after the suspension. The Respondent testified that the Appellant absconded his duties and thus voluntarily terminated his services with the Respondent. 27.The Appellant in his witness statement which he adopted as his evidence-in-chief admitted that he realized that his salary for October 2018 had not been remitted to him. The implication being that the Appellant's employment relationship with the Respondent was still in force for his September 2018 salary was paid in full and as such his services could not have been terminated on 13th September, 2018 as alleged. 28.It was further submitted that the suspension letter was issued and the Appellant signed the same on 15th September 2018. This begs the question, how could the Appellant's services be terminated days prior to disciplinary action taking place? To this end counsel only speculates that the Appellant seeks a second bite of the proverbial apple by calling into question the judgment of the trial Court. 29.That the Appellant did not in any way, shape, form and/or construction of the word shown that he ever communicated with the Respondent about his employment status after his suspension came into effect and in the months after. The Appellant did not get confirmation from the Respondent that his services had been terminated. That the trial court upheld that he had absconded his duties; and rightfully so. 30.On the issue of whether the Appellant is entitled to succeed in the current Appeal counsel submitted that the burden of proof in this Court as was in the Subordinate Court subsists and the Appellant has the onerous task of convincing this Honorable Court to rule in his favour. That the Appellant has questioned whether the Trial Court took into consideration his evidence during the trial stage. It was submitted that the Trial Court took into account of the Appellant's evidence and when weighed and measured his evidence was found wanting. 31.Counsel submitted that the Appellant has further claimed that the trial court erred by not allowing the claim for underpayment on account of a failing to consider the Regulation of Wages Order. It was submitted that ours being an adverbial system, the Honourable Court is but an impartial umpire. That the Applicant did not adduce evidence to support his claim for underpayment and as such the Trial Court could not find in his favour in the absence of evidence that he wanted the Trial Court to look into the said law and/or statute 32.Counsel submitted that Section 60(1) of the Evidence Act quoted by the Appellant cannot apply in a vacuum as the Judicial Officer needs direction as to what statute he is look at otherwise the Judicial Officer will be forced to look at the entire compendium of legal statutes to every issue including those that evidence has not been tendered for. 33.On the question of substituting the Trial Court's Judgment counsel submitted that on notice pay, the Appellant did not show that he was deserving of notice pay be it in this or the Subordinate Court, for its evident that his services were not terminated by the Respondent rather the Appellant voluntarily terminated the employment relation by failing to obey summons issued to him to attend a meeting therein by the Respondent. 34.On Compensation for unfair termination, the Respondent's action were both substantively and procedurally fair, lawful and just and as such compensation for unfair termination did not arise. 35.On the Minimum Wage Balance, counsel submitted that the claim for underpayment had not been proved by the Appellant and that the Appellant wishes to invite the Honorable Court into speculating as to the state of affairs all the while no evidence was adduced in support facts for a minimum wage balance prayer being granted. Determination 36.The court has considered the record of appeal, the submissions filed by the both parties herein as well as the authorities and observes that it is now settled law that the duty of the first appellate court was to re-evaluate the evidence in the subordinate court both on points of law and facts and come up with its own findings and conclusions as was held in Court of Appeal for East Africa in Peters –vs- Sunday Post Limited [1958] EA 424.The appropriate standard of review established in cases of appeal can be stated in three complementary principles:i.First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;ii.In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; andiii.It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time. 37.In this case, the judgment of the trial court was that the Claimant’s suit was dismissed for having not proved his case on balance of probabilities. The court found the Claimant to have absconded duties and awarded him house allowance of Kshs 344,250/= and costs of the suit while dismissing other prayers. The Appellant appeals on the whole of the Judgment fronting 6 grounds of appeal which this court will frame in to two issues which are:-a.Whether the trial court erred by finding that the Appellant absconded his duties and did not prove his case on balance of probabilities.WHEHWWwWhetherWhetherWheb.Whether the trial court erred by not awarding the Appellant his terminal dues and reliefs sought. Whether the trial court erred by finding that the Appellant absconded his duties and did not prove his case on balance of probabilities. 38.It was not in dispute that the Appellant was an employee of the Respondent who was employed in 2010 via oral contract as a driver-salesman until 15th September, 2018 when he was given a notice to show cause letter, responded to it the same day vide his letter of explanation and he was suspended on the same date pending investigations after leakers were found in his motor vehicle. 39.This court has had the opportunity to go through the explanation letter by the Appellant of 15th September, 2018 who does not deny the existence of the leakers but requests for forgiveness from the Respondent since he did not have any history of disciplinary issues. Whereas the Appellant alleged that after the suspension he was never called back to work and he only realised that the Respondent had terminated his service when they failed to pay his October salary, the Respondent alleged that in a week’s time after suspension they called the Appellant for a meeting after concluding the investigations but he did not show up. That he absconded duties. 40.The trial court on the other hand held that there was no evidence of constructive dismissal that the Appellant absconded duties. That the Appellant had a duty under section 107 of the Evidence Act to prove his case. This court notes that the Appellant had a burden of proof under section 47(5) to illustrate that he was unfairly terminated before the Respondent could be called upon to justify the grounds of termination. Reliance is put on the case of Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR on the respective burdens. 41.The court is however of the view that the moment the Respondent came up with a defence of absconding of duties by the appellant, the burden shifted to the Respondent to prove that the Appellant absconded duties. The Appellant illustrated that he was sent on suspension and his terms of employment were to remain the same while in suspension but in the month of October, 2018 he did not receive his salary without any official communication from the Respondent or lifting of the said suspension. 42.The Respondent alleged that the Appellant absconded his own duties at his own volition and he was not terminated. Under Section 44(4) (a) of the Employment Act 2007, absconding duty by an employee constitutes gross misconduct and renders an employee liable for summary dismissal. 43.The Respondent had a duty under section 43 and 47(5) of the Act to justify the grounds of termination and demonstrate the reasons were fair and valid which would lead to unfair termination under section 45 of the Act. 44.This court has in a number of times pronounced itself on issues of absconding of duties by an employee with the court in the case of Owudu v Digital Sanitation Services Limited (Appeal E109 of 2023) [2024] KEELRC 917 (KLR) (18 April 2024) (Judgment) holding as follows:-17.First, an employee does not terminate his employment in a case of alleged abscondment. When faced with an employee who fails to attend work, the employer must issue notice to the employee to render an account over his misconduct. Where the employee persists and fails to abide by such directions, the employer is required to issue notice terminating employment or summary dismissal through the last known address of the employer.18.Further, under Section 18(5) (b) of the Act, where the employer cannot trace the employee, notice must be issued to the Labour Officer and any terminal dues deposited in such office. Then, the employer has undertaken its legal duty to properly end employment. 45.In this particular case no notice was issued to the Appellant upon absconding duty or to the Labour Office and his terminal dues deposited therein. In addition, if the Appellant absconded duties, the Respondent did not demonstrate that it commenced any disciplinary action against the Appellant under Section 41 of the Employment Act after he allegedly failed to report on duty. In the case of Joseph Nzioka v Smart Coatings Limited [2017] eKLR Nduma J. observed that“Dismissal on account of absconding must be preceded by evidence showing that reasonable attempt was made to contact the employer concerned and that a show cause letter was issued to such employee calling upon such employee to show cause why his services should not be terminated on account of absconding duties.” 46.In this present case, the Respondent did not illustrate any efforts of contacting the Appellant to inform him that they were considering terminating his services due to absconding of duties. The Respondent did not produce any evidence of lifting of the suspension or calling the Appellant back for the said meetings. If at all the Appellant was called back after one week of suspension it means that it was around 22nd of September, 2018 but the Respondent paid his September salary without notifying him that his suspension was lifted only to omit to pay his October salary. 47.The court disagrees with the trial court that there was no evidence of constructive dismissal when the Appellant was sent on indefinite suspension without pay and the Respondent did not prove its allegations of absconding of duties hence their actions amounted to unfair termination of employment. Whether the trial court erred by not awarding the Appellant his terminal dues and reliefs sought 48.This court having overturned the trial court verdict of dismissing the suit and finding that the Appellant was unfairly terminated will proceed to award him the damages for unfair termination. This court notes that the award of compensation is discretionary but the court ought to be guided by considerations set out under section 49(4) of the Employment Act in awarding the damages herein. 49.The court takes note of period of service of 8 years; the fact that the Appellant admitted having leakers in his car without authority however asked for pardon due to the fact he did not have any history of disciplinary issues but for the fact that the respondent acted in misstep in handling the appellant’s disciplinary process which could have ended in a totally different outcome, an award of two months’ salary as compensation would be reasonable in the circumstances. The same will be based on the last minimum salary as claimed in the claim of Kshs 30,627 x 9 =Kshs. 61,254/= 50.The award of one-month salary pay in lieu of notice is also justified after finding the Appellant was unfairly terminated without notice as provided for under section 36 of the Employment Act but as per the last Minimum wage salary of Kshs 30,627/=. 51.On the claim for housing allowance and underpayments this court appreciates that it is continuing injury which the Claimant must file his suit within 12 months after cessation of employment as per section 90 of the Employment Act. This court notes that the employment relationship herein ended in September, 2018 and the Claim was filed in June, 2019 which is within 12 months as required. 52.On the award of housing allowance, the court appreciates that the Appellant was entitled to the same under section 31 of the Employment Act. The Appellant was not housed by the Respondent or his salary inclusive of house allowance as per minimum wages. The court agrees with the trial court that the Respondent was entitled to the same hence the same is upheld. 53.On the award of underpayments, the trial court and the Respondent alleged that the Appellant ought to have attached the relevant wages to guide the court while the Appellant alleged that the said wages were within public knowledge and section 60(1) (a) of the Evidence Act required the court to consider the said gazette notices. 54.This Court agrees with the Appellant in that the Minimum wages need not to be attached for the court to decide on the same as the same can easily be found online as the court makes it’s own determination. It is not disputed that the Appellant worked as both a driver and salesman and the Regulation of Wages (General) Amendment Order provided for minimum wage of Kshs 30,627 per month in 2018, Kshs 29,169/ between May 2017 and April 2018 and Kshs 24,719/= between May 2015 to April 2017 hence the Appellant was entitled to underpayments of Kshs 182,046/= as claimed. 55.In the upshot the court finds that the Appellant’s Appeal is found merited and the same is hereby allowed with costs as follows: _i.2 months compensation for unfair termination Kshs. 61,254/=ii.Notice Pay Kshs. 30,627/-iii.House Allowance Kshs. 344,250/=(already awarded by the trial court)iv.Underpayments Kshs. 182,046/=TOTAL KSHS. 618,179/=a.The award shall be subject to taxes and statutory deductions.1.It is so ordered. DATED AT NAIROBI THIS 19TH DAY OF JUNE, 2026DELIVERED VIRTUALLY THIS 19TH DAY OF JUNE, 2026ABUODHA NELSON JORUMPRESIDING JUDGE-APPEALS DIVISION