https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1822

 REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT KILIFI COUNTY COURT NAME: MALINDI ELRC CASE NUMBER: ELRCA/E026/2025 ATHUMAN NDEGE SWALEH VS ASSOCIATED CONSTRUCTION COMPANY (K) LIMITED JUDGMENT JUDGMENT Background 1. The Appellant, Athumani Ndege Swaleh, was the Claimant before the Principal Magistrate’s Court at Kaloleni in MCELRC No. E042 of 2024. He filed the suit against the Respondent, Associated Construction Co. (K) Ltd, by a Memorandum of Claim dated 4th April, 2024. The claim arose from an alleged unfair and unlawful dismissal from duty, and non-payment of terminal dues and contractual benefits. The Appellant sought a declaration that the Respondent unlawfully and unfairly, summarily terminated his employment, and further sought the following liquidated reliefs: a) 1 month’s salary in lieu of notice of… KShs 13,572.90 b) Leave Allowance ………………………………..KShs. 73,981.95 c) Pro-rata Leave Allowance…………………….KShs. 1, 827.10 d) Underpayment…………………………………KShs. 188, 645.00 e) House allowance………………………………..KShs. 101.796.50 f) Public Holidays worked ………………………KShs. 20,881. 20 1. NSSF deductions not remitted………………KShs. 1,200.00 2. Compensation for unfair termination……. KShs. 162, 874.00 3. The Respondent opposed the claim by a Response to the Memorandum of Claim dated 21st February, 2025. The Respondent denied the Appellant’s cause of action against and entitlement to the reliefs sought. 1. After hearing the parties on their respective cases and considering their evidence and submissions, the trial Court allowed the Appellant’s case only to a very limited extent. The Appellant’s Case before the Lower Court 1. It was the Appellant’s case before the trial Court that he first entered the employment of the Respondent in1st January 2018 as a General Labourer, at a monthly salary of KShs. 9,800 until 7th June 2022, when the Respondent summarily terminated his services. 2. He stated that on 7th February, 2022, as he was leaving work, one Mr Brian instructed him not to report for work the following day. Mr Brian told him that he would be called later to resume work, but he waited for the call, and it never came. 3. The Appellant further stated that he was not given notice of termination and was not paid in lieu of notice. He also stated that he never took leave during his employment with the Respondent. He worked more than the 8 hours stipulated by law; he was not paid a house allowance during his employment, and he worked on public holidays without compensation. 4. He further stated that at all material times, the Respondent paid him below the minimum wage, which was KShs. 13,572. 5. He further alleged that at all material times the Respondent deducted NSSF contributions from his salary but failed to remit them to the relevant Authority in some months, contrary to sections 20 and 21 of the Employment Act, 2007. 6. The Appellant argued that the termination of his employment was without substantive justification and adherence to the procedural requirements of the Employment Act. The Respondent’s Case before the Lower Court 1. The Respondent called one witness, KipKosgei James Snow, the Respondent’s Project Administrator, to give evidence before the lower Court. The witness stated that the Appellant was not employed by the Respondent on the date he alleged. Contrary to the Appellant’s allegation, he was employed from 7th February 2022 to March 2022, a period of two months at the Respondent’s road construction site for the Jomvu Kuu–Jitoni–Rabai road in Kilifi County. He earned an all-inclusive salary of KShs. 10,400. 1. The witness stated that the Respondent did not have a supervisor by the name Brian or Manager at the said site. 2. He stated that the Respondent’s contract for the road construction project was temporarily suspended by the Government due to insufficient funds. This led the Respondent to temporarily release the Appellant from his employment. Once the Government allocated funds for the project, the Appellant was to be advised to resume his duties. 3. He further asserted that the Appellant never worked on public holidays or weekends. Additionally, the Appellant’s NSSF statement showed that the monthly deductions had been remitted. As the Appellant had not worked for a continuous period of twelve months, he did not qualify for annual leave. Judgment of the Lower Court 1. After hearing the parties and considering their respective evidence and submissions, the learned trial Magistrate found that the Appellant failed to prove his case for unfair and unlawful termination of employment. She declined all the reliefs sought, save for one, the issuance of a certificate of service. The Appeal before this Court. 19. Dissatisfied with the whole judgment, the Appellant appealed against the decision on the following grounds: 1. The Learned Magistrate erred in law and fact in holding that the Appellant was not employed from 7th February 2022 and not January 2018, despite the Appellant adducing an NSSF provisional Member Statement of Account confirming continuous working engagement with the Respondent since January 2018. 2. The learned Magistrate erred in law and fact in failing to acknowledge that the Appellant was unfairly terminated from employment, was never issued with any valid reason for termination, or any notice of temporary suspension of the Respondent’s operation. 3. The Learned Magistrate erred in law and fact in failing to appreciate that the Respondent did not produce work records for the period January 2018,to confirm that indeed the Claimant was not part of the Respondent’s employees when the project is stated to have commenced. 1. The Learned Magistrate erred in law and fact in arriving at the conclusion that the Appellant was undeserving of his sought reliefs, including overtime allowance, off days and holidays allowance, despite there being overwhelming evidence in support of the same. 2. The Learned Magistrate erred in law and fact in failing to find that the termination of the Appellant’s employment was unlawful for the reason that the Appellant was not granted a hearing as contemplated under the mandatory provisions of section 41 of the Employment Act. 3. The Learned Magistrate erred in law and fact in failing to award the Appellant service pay for unremitted NSSF deductions from his salary despite the NSSF extract showing there were no remittances by the Respondent for months, but the same were being deducted. Analysis and Determination 1. I have carefully considered the entire record of appeal, the grounds of appeal, the judgment of the lower court, and the written submissions filed by both parties. Two core issues emerge for my determination: first, whether the learned trial Magistrate erred in law and in fact by finding that the Appellant’s employment was not terminated; and second, whether the Appellant was entitled to the reliefs he sought. 2. As this is a first appeal, I am obliged to subject the evidence on record to fresh, independent scrutiny and to draw my own conclusions therefrom, while remaining alive to the inherent limitation that I did not have the privilege of observing the demeanour and credibility of the witnesses as they testified. 3. Was the Appellant’s employment terminated? The Appellant’s case was that on 7th February, 2022, Mr Brian informed him not to report to work the following day, citing a lack of further work and assuring him that he would be contacted later to resume his duties. While acknowledging that the Appellant was released from work on that date, the Respondent contended that the release was temporary, pending the resumption of the road construction project, which the Government had temporarily halted due to a lack of funds. 4. Having weighed the evidence of both parties with care, I am persuaded that there is a clear and significant convergence between the Appellant’s account and the Respondent’s version of events on one critical point: the separation from employment on the said date was never intended by either party to constitute a final and permanent termination of the employment relationship. I am satisfied that the evidence establishes a mutual understanding that the separation was temporary, triggered by the suspension of the road construction project, and premised on the expectation that the Appellant would be recalled to resume his duties once the project recommenced. 1. In light of the foregoing finding, I am unable to accept that the Appellant’s employment was terminated by the Respondent on the said date. I am firmly of the view that what occurred on that occasion did not amount to a termination of employment in its proper legal sense. 2. I am unable to allow the Appellant to anchor a claim for unfair termination on the events of 7th February 2022, as doing so would be to disregard the parties’ own common understanding at the time and to ascribe a permanence to the separation that neither party ever contemplated. The Appellant simply cannot approbate and reprobate: he cannot, with one breath, acknowledge that the separation was temporary, and with the next, insist that it constituted a final termination of employment. The law insists on consistency with the facts, and those facts simply do not support a finding that termination occurred on that day. 3. Section 47[5] of the Employment Act establishes a reverse system of burden of proof. It places a duty on the employee to first establish that an unlawful termination of employment or wrongful summary dismissal occurred, after which the evidential burden shifts to the employer to justify the termination or summary dismissal. Where the employee does not discharge this initial burden, their case would collapse at that hurdle. 4. Having found, for the reasons set out above, that what occurred was not a termination of employment but a temporary release from service, I am satisfied that the Appellant failed to discharge the legal burden imposed upon him by Section 47[5] of the Employment Act. I accordingly uphold the trial Court’s finding that the claim for unfair termination was unproven. 5. If, as the Appellant contends, the Respondent thereafter failed to recall him to work within a reasonable period, or failed to communicate its intentions regarding the continuation of the employment relationship, the gravamen of his complaint would not be an unfair termination occurring on 7th February 2022. Rather, his cause of action, if any, would arise from the Respondent’s subsequent conduct, which effectively demonstrated an intention not to be bound by the employment contract. 1. I am of the view that, in the circumstances, the more legally sustainable cause of action would have been one grounded in constructive dismissal. The alleged wrong, if established, would flow not from the temporary separation itself, but from the Respondent’s subsequent silence and inaction, which — measured against the applicable legal standard — could be said to have repudiated the employment contract and rendered continued employment untenable. 2. I note that the Appellant pursued two distinct categories of relief before the lower court. The first category was tied directly to the unfair termination claim and included notice pay under section 35 of the Employment Act, read together with section 36, and compensation for unfair termination under section 49[1][c] of the Employment Act. The second category comprised stand-alone reliefs independent of that claim, including unpaid house allowance, compensation for leave days earned but not utilised, underpayment of salary, and compensation for public holidays worked without remuneration. 3. Since I have affirmed the dismissal of the unfair termination claim, it follows inexorably that the reliefs for compensation for unfair termination and notice pay were equally and rightly dismissed by the learned trial Magistrate. 4. The Appellant advanced a claim he characterised as Overtime, and underpayment compensation. The learned trial Magistrate declined this claim on the basis that it constituted a continuing injury claim and, as such, was required to have been lodged within twelve months of the date of cessation of the injury, as provided under section 89 of the Employment Act. I agree entirely with the learned trial Magistrate’s characterisation of the claim as a continuing injury claim; it was plainly time-barred by operation of that provision. See German School Society vs Helga Ohany [2017] KECA 112 [KLR]. 5. I am equally satisfied that the learned trial Magistrate was correct in rejecting the claim for compensation for alleged work done on public holidays. As pleaded, this too was a continuing injury claim. It should have been filed within twelve months of the alleged date of cessation, and the failure to do so rendered it time-barred. 6. I am satisfied that the learned trial Magistrate was correct in declining to grant compensation for earned but unutilised leave days and unpaid house allowance. The basis for that refusal — the time limitation provisions under section 89 of the Employment Act — was sound in law, and I see no reason to disturb that conclusion. 1. The award of costs in litigation is, of course, a matter of judicial discretion; but it is equally well settled that costs ordinarily follow the event. This foundational principle is expressly articulated in Section 27 of the Civil Procedure Act, and any departure from it must be justified by cogent reasons. I observe that the learned trial Magistrate took into account the limited success of the Appellant’s claim before making the order that each party bear its own costs. I accept that the degree of a party’s success is a wholly legitimate factor in the exercise of discretion on the question of costs. I am therefore unable to find that the learned trial Magistrate improperly exercised her discretion, and I decline to interfere with that order. 2. For all the foregoing reasons, I find the Appellant’s appeal to be entirely without merit. It is accordingly dismissed. Each party shall bear its own costs of this appeal. Read, Signed and Delivered this 24th Day of June 2026. SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. MR. JUSTICE OCHARO KEBIRA** Malindi ELRC Employment and Labour Relations Court Date: 2026-06-24 15:53:32