https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2272

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT *&* LABOUR RELATIONS** **COURT OF KENYA AT KISII** **APPEAL NO. E009 OF 2025** THE BOARD OF MANAGEMENT ST. PETERS NYANGWETA SECONDARY SCHOOL…………. …………………….……..**APPELLANT** **VERSUS** SARAH KEMUNTO ONDARI.....................….....................**RESPONDENT** *(Being an Appeal from the Judgement of Hon. Mugendi Nyaga (PM) in Etago MCELRC No. E001 of 2025 delivered on 13th November, 2025)* **JUDGMENT** 1. In a judgment delivered on 13th November 2025 the Trial Magistrate found that the Respondent was unfairly terminated from employment and awarded her Kshs. 104,085/- compensation for unfair dismissal, Kshs. 518,595/- as underpayment for 21 months, Kshs. 10,000/- being 1 months’ salary in lieu of notice as well as costs and interests of the suit. The Appellant was dissatisfied with that decision and it lodged this appeal vide a Memorandum of Appeal dated 8th December 2025 contending that: * + 1. The learned Trial Magistrate erred in law and in fact in finding that the Respondent was unlawfully terminated, despite clear and uncontroverted evidence that she voluntarily deserted duty without notice or lawful cause, thereby repudiating her contract of employment. 2. The learned Trial Magistrate misapprehended and misapplied the legal principles governing desertion, including the burden of proof under sections 47(5), 44(4)(a) and 41 of the Employment Act, by shifting the burden to the Appellant contrary to law. 3. The learned Trial Magistrate erred in awarding the Respondent compensation for unfair termination yet there was no termination initiated by the Appellant. 4. The learned Trial Magistrate erred in awarding underpayment calculated on TSC salary scales, notwithstanding clear evidence that: The Respondent was employed under BOM (Board of Management) terms; The Respondent accepted the BOM salary; The Respondent was not a TSC-appointed teacher; and The Court therefore applied wrong salary structures contrary to the contract and prevailing law. * + - 1. The learned Trial Magistrate erred in law and fact in awarding backdated underpayments without legal justification and in total disregard of the contractual terms, the Respondent’s acceptance of her terms of service and the principle that a court cannot rewrite a contract for parties. 2. The learned Trial Magistrate erred in awarding one (1) month’s salary in lieu of notice yet the Court made no finding of termination by the Appellant, and in any event, an employee who deserts duty is not entitled to notice pay under section 44(1) of the Employment Act. 3. The learned magistrate misdirected herself in law and fact by ignoring material contradictions and admissions in the Respondent’s testimony confirming her desertion from duty. 4. The entire judgment was against the weight of evidence, the law and established principles governing desertion, unfair termination and contractual employment under BOM terms. 1. On the basis of the foregoing grounds, the Appellant urges this Court to allow the appeal, set aside the judgment of the Trial Court, and substitute it with an order dismissing the Respondent’s claim. It also urges the court to make any order it deems fit to meet the ends of justice and to award it costs of the appeal. The appeal was canvassed by way of written submissions. Appellant’s Submissions 1. The Appellant identifies the following issues for determination: * + 1. Whether the Trial Court erred in finding that the Respondent’s employment was unlawfully terminated; and 2. Whether the Trial Court erred in finding the Respondent was entitled to underpayments based on TSC Salary scale; 3. Whether the Trial Court erred in finding that the Respondent was entitled to Notice Pay; and 4. Whether the Trial Court erred in granting the reliefs. 2. On the first issue the Appellant submits that the Respondent voluntarily absented herself from work hence was not unlawfully terminated from employment. It highlights the fact that the Respondent did not produce a termination letter, or any other evidence demonstrating termination of employment. In support of this position, it cites **Dungani *v* West Kenya Sugar Company Limited [2024] KEELRC 172 (KLR)** for the proposition that an employee bears the initial burden of proving unfair termination under section 47(5) of the Employment Act. It maintains that it made efforts to reach the Respondent after she absconded duty citing **Joseph Njoroge Kiama *v* Summer Ltd [2014] eKLR**, where the court held that although an employer is encouraged to contact an employee who has absconded duty, the primary responsibility lies with the employee to communicate the absence. 3. Additionally, the Appellant submits that the Respondent’s abscondment constituted an exceptional circumstance excusing it from conducting a disciplinary hearing. Reliance is placed on **Co-operative Bank of Kenya Limited *v* Yator [2021] KECA 95 (KLR),** where the court in similar circumstances of abscondment held that a hearing may be done away with where it is proven that employer was unable to reach the employee. In any case, the Appellant submits that the Respondent never applied for maternity leave as required under section 29(1) and (4) of the Employment Act, hence her absence amounted to a fundamental breach of the employment contract. Consequently, it submits that the compensation for unfair termination was erroneous. 4. On whether the Trial Court erred in finding that the respondent was entitled to underpayments based on the TSC salary scale, the Appellant emphasizes that the Respondent was employed under Board of Management terms. It asserts that the Respondent failed to prove the existence of any Regulation of Wages Order or statutory instrument requiring BOM teachers to earn salaries equivalent to TSC-employed teachers. The Respondent relies on **National Bank of Kenya Ltd *v* Pipeplastic Samkolit (K) Ltd *&* another [2001] eKLR**, where the Court of Appeal held that courts cannot rewrite contracts between parties. The Appellant further submits that absorption into TSC service is governed by competitive recruitment under the Teachers Service Commission Act and the TSC Code of Regulations for Teachers, and that there is no automatic transition from BOM employment to TSC employment. It therefore contends that the award for underpayments lacked both legal and evidential foundation. 5. On the award of notice pay the Appellant submits that the finding that the Respondent was entitled to notice pay of Kshs. 10,000/- was erroneous because the Respondent was not terminated from employment. It emphasizes that section 36 of the Employment Act applies only where a contract is terminated without notice, not in the present circumstances where the Respondent deserted duty and repudiated the employment contract. 6. On whether the Court erred in granting the reliefs, the Appellant submits that the Trial Court failed to properly evaluate the evidence and ignored material facts demonstrating that the Respondent deserted duty, received no termination letter from the Appellant, served as a BOM employee rather than a TSC employee, and was paid the agreed contractual salary. The Appellant relies on **Ndiema Samburi Soti *v* Elvis Kimtai Chepkeses [2010] eKLR**, where the court held that an appellate court may interfere with a Trial Court’s findings where they are based on no evidence, a misapprehension of the evidence, or the application of wrong legal principles. Consequently, it urges the Court to allow the appeal as prayed. Respondent’s Submissions 1. The Respondent on her part identifies the following issues for determination: * + 1. Whether the Trial Court erred in finding that her employment was unlawfully terminated; 2. Whether the Trial Court erred in finding she was entitled to underpayments based on the TSC Salary Scale; and 3. Whether the Trial Court erred in finding she was entitled to Notice Pay. 2. On the first issue, the Respondent submits that the Appellant verbally dismissed her in August 2023 while she was expectant, without notice, a hearing, or written reasons, thereby violating the procedural requirements under section 41. She highlights the Appellant’s admission that no termination letter was issued and its failure to demonstrate efforts at contacting her. She relies on **Ndung’u *v* Safaricom Kenya PLC Limited [2025] KEELRC 181 (KLR)**, where the court held that termination is unfair where an employer fails to comply with the procedural safeguards under section 41, even where a valid reason may exist. The Respondent maintains that she did not desert duty contending that no valid reason for termination was provided as required by section 45(2) of the Employment Act. In response to the allegation of abscondment, the Respondent relies on **Aron *v* Bokhol Transporters Limited [2025] KEELRC 805 (KLR),** where the Court held that an employer must formally terminate the employment relationship even where an employee has deserted duty. 3. On the assertion that the Court erred in finding that the Respondent was entitled to underpayments based on the TSC salary scale, the Respondent reiterates that the Appellant admitted paying her Kshs. 10,000/- per month, which was below the statutory minimum remuneration applicable during her employment and therefore constituted unlawful underpayment. She relies on section 48 of the Labour Institutions Act, which provides that the minimum rates of remuneration prescribed under a Wages Order form part of every contract of employment and cannot be varied by agreement. She maintains that she was a qualified teacher with a TSC number therefore her remuneration should therefore have reflected the applicable statutory wage protections. She contends that the Appellant cannot rely on the parties’ agreement to justify payment below the statutory minimum. 4. On notice pay, the Respondent submits that her employment was terminated without notice hence she was entitled to the same under section 36 of the Employment Act. In conclusion the Respondent urges the Court to dismiss the appeal with costs. Disposition 1. The Court on appeal has to analyse the evidence noting it did not hear the parties and make allowance for that. In the case of **Selle *v* Associated Motor Boat Co. Ltd [1968] EA 123** and restated in the case of **Kenya Ports Authority *v* Kuston (Kenya) Limited [2009] 2 EA 212** where the Court of Appeal rendered itself as follows: "*On a first appeal from the High Court, the Court of Appeal should 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 that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.*" [Underline for emphasis] 1. It is trite that the responsibility of this Court is to rule on the evidence on record and not to introduce extraneous matters that were not dealt with by the parties in the evidence they presented before the Learned Magistrate at Etago. Having properly warned myself that I neither saw nor heard the Appellant nor the Respondent testify in trial, I have carefully evaluated the evidence the parties presented in the Trial Court, and which evidence and documents in support thereof, are before this Court and I have come to the following determination. 2. The Appellant was the employer of the Respondent a teacher. The teacher from evidence adduced before the Learned Magistrate had inferior terms of service from those enjoyed by the teachers under the Teachers Service Commission. She was employed by the Board of Management of the Appellant. That did not permit the Respondent to be underpaid. The Appellant was guilty of underpayment of wages. The fact that she was a Board of Management appointed teacher did not absolve the Appellant from paying a proper salary. The Appellant was guilty of underpayment. The Trial Court was correct in the surmise that the Respondent was entitled to receive relief in the way of the amount subject of the underpayment of salary by the Appellant. However, in granting the relief, the Learned Magistrate fell into error in granting the underpayment for 21 months instead of the maximum allowable 12 months as the underpayment constituted a continuing harm for which the Respondent ought to have raised issue with the Appellant immediately. She allowed the claims for the period prior to the last 12 months of her service to abate. 3. The evidence before the Court is that the Respondent was expectant at the material time and for some reason, lost her pregnancy as she had a still birth. The Appellant as employer did not demonstrate any efforts to contact the Respondent, its worker. It ought to have done more than hide behind the transparent shield of non-application for maternity leave. The Respondent is therefore entitled to have been accorded a fair process in termination. She has not cross appealed and therefore I will not interfere with the Kshs. 10,000/- awarded as payment of one month’s salary as notice. She was awarded compensation by the Court and in its discretion had ample consideration of the matter and that resulted in the award made. I will not interfere with the same. 4. As the Appellant is liable for the costs in the matter before the Trial Court, I will not make any orders as to costs on this Appeal. 5. In the final analysis I uphold the judgment and decree of the Learned Magistrate save for the amount awarded as underpayment which is revised to Kshs. 265,340/- being 12 months underpayment of salary as opposed to the 21 months awarded. It is so ordered. **Dated and delivered at Kisumu this 31st day of July 2026** **Nzioki wa Makau, MCIArb.** **JUDGE**