https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2393

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KITALE** **ELRC APPEAL NO. E009 OF 2024** **THE MANAGEMENT COMMITTEE-** **KITALE SCHOOL PRIMARY…….…………..…………. APPELLANT** **VERSUS** **RICHARD WAMALWA ………...………….……… 1ST RESPONDENT** **EKITALE MORU EIPA alias** **JAMES EKITALA ………………………………... 2ND RESPONDENT** **JOHN MUKHWANA MAMBAYU ………………… 3RD RESPONDENT** **JOHN LOPTIRO SINGILA ……………………….. 4TH RESPONDENT** (*Being an appeal from the judgment of Hon. S.K. Mutai, Senior Principal Magistrate in MCELRC No. E016 of 2021 delivered on 28th October 2024)* **JUDGMENT** 1. The Appellant herein was the Respondent, while the Respondents were the Claimants in Kitale CMELRC No. E016 of 2021 wherein the Respondents sued the Appellant vide a Memorandum of Claim dated 27th September 2021 seeking compensation and terminal dues for alleged unfair termination of their employment. 2. After hearing the parties, the trial court delivered its judgment on 28th October 2024, in favour of the Claimants awarding them the prayers they sought in their Memorandum of Claim. 3. The Appellant being dissatisfied with the said Judgement instituted the instant appeal vide the Memorandum of Appeal dated 11th November 2024 on grounds that: - 4. The learned Magistrate erred in law and in fact by finding that the termination of employment of the Respondents was unfair, unprocedural and unlawful. 5. The learned Magistrate erred in law and in fact in finding that the respondents were entitled to compensation for wrongful dismissal from employment equivalent to 9 months' salary from June 2020 to April 2021. 6. The learned Magistrate erred in law and in fact by failing to appreciate and apply the applicable principles of law while determining the issues of whether severance pay and gratuity were applicable in this matter. 7. That the learned trial Magistrate erred in fact and law in failing to appreciate that the claim for unpaid leave and underpayment were statutorily time barred with regard to Section 90 of the Employment Act. 8. The learned Magistrate erred in law and in fact by failing to take into account the Appellant's witness evidence and/or the entirety of the evidence tendered by the Appellant in support of its defense. 9. The learned Magistrate erred in law and in fact in taking into account irrelevant factors and/or evidence that was not part of the Court record in determining the issues raised. 10. The learned Magistrate erred in law and in fact by failing to consider and/or take into account the submissions and authorities proffered by the Appellant in making his finding. 11. The learned Magistrate erred in law and in fact in misapprehending the evidence tendered by the Appellant. 12. The learned Magistrate erred in law and in fact by failing to consider and give sufficient weight to the Appellant's pleadings and the evidence tendered. 13. The learned magistrate erred in law and in fact by failing to find that the Respondents had not proved their case on a balance of probability. 14. Consequently, the Appellant seeks the following orders: 15. The appeal be allowed. 16. The judgement and decree delivered and issued by the Honourable S.K. Mutai (Senior Principal Magistrate), delivered in Court on 28th October 2024 in Kitale MELRC No. EO16 OF 2021, Richard Wafula & Others Vs- The Management Committee Kitale Primary School be set aside. 17. The Appellant be awarded the cost of this appeal. 18. Pursuant to the directions of the court, the appeal was disposed of by way of written submission. The Appellant’s submissions are dated 10th February 2026 while the Respondents undated submissions were filed on 27th January 2026. **Analysis** 1. This being a first appeal, this court is guided by the principles espoused in several decisions among them, ***Selle & Another v Associated Motor Boat Co. Ltd &Another (1968) EA 123,*** to re-evaluate and re-examine the evidence adduced in the trial court in order to reach its own finding, taking into account the fact that this court had no opportunity of hearing or seeing the parties as they testified. 2. Vide the Memorandum of Claim dated 27th September 2021, the Claimants (now the Respondents) sued the Appellant seeking compensation for the alleged unfair termination of their employment and payment of their terminal dues. 3. The 1st and 4th Claimants averred that they were employed by the Appellant as security guards in 2017 and confirmed in 2018. 4. The 2nd Claimant and 3rd Claimants state that they were employed by the Appellant as security guards on 17th February 2005 and 27th September 2016 respectively. 5. They claimants contended that in 2018 they were issued with letters of appointment as security guards on a monthly salary of Kshs 9,117 inclusive of medical allowance, house allowance and National Social Security Fund allowance which varied and increased yearly. 6. The Claimants contended that they served the Respondent diligently until 10th June 2020, when they were sent on indefinite unpaid leave following the outbreak of the COVID-19 pandemic. They averred that their services were suspended pending the normalization of the pandemic situation and the resumption of normal school operations. 7. The Claimants further averred that they remained available for work and awaited communication from the Respondent regarding their resumption. They aver that despite making inquiries as to when they were to report back to duty, they were repeatedly informed that they would be contacted once operations resumed. They contended that no such communication was ever made and that, to date, they have neither been recalled to work nor formally informed of the status of their employment. 8. The Claimants stated that they subsequently approached the Respondent to inquire when they would resume work, but were instead issued with termination letters. 9. According to the Claimants, the termination of their employment was unfair and unlawful as the Respondent failed to act in accordance with the provisions of the Employment Act. 10. The Claimants thus prayed for the following reliefs: 1. The arrears of salary and allowances from June 2020 to February 2021 2. A declaration that the termination of the Claimants’ employment was unfair, unreasonable, unlawful and unprocedural contrary to law. 3. Damages for wrongful dismissal & unfair termination under Section 49 of the Employment Act, Laws of Kenya. 4. Pay in lien of notice 5. Unpaid leave 6. Severance pay 7. Gratuity 8. Statutory entitlements 9. Underpayments for the periods of service 10. Interest on a, b, c, d, e, f and g above at courts rate from the date of filing of this claim until payment in full 11. Cost of this claim 12. Such other or further reliefs as this Honourable court may deem just to grant. 11. The Appellant (Respondent in the trial court) filed a Response to the Memorandum of Claim dated 1st November 2021 denying the averments made by the Claimants in their claim. With regard to the 1st Claimant, Richard Wamalwa, the Respondent averred that he was appointed as a security guard on 1st October 2018. It was further averred that following the outbreak of the COVID-19 pandemic, which necessitated the scaling down of its workforce, the 1st Claimant became a victim of force majeure with effect from May 2020. The Respondent further contended that by a letter dated 9th February 2021, the 1st Claimant requested for early retirement, to which it responded vide a letter dated 10th February 2021. It was also averred that the Claimant misled the Labour Officer, who, by a letter dated 17th March 2021, sought particulars relating to the Claimant's complaint. The Respondent further averred that on 1st April 2021, the 1st Claimant was summarily dismissed for negligence of duty and that his terminal dues were computed and remained available for collection upon clearance with the Respondent. 12. With respect to the 2nd Claimant, the Respondent averred that he was initially appointed on 1st October 2018 and was subsequently engaged on a one-year contract commencing on 1st October 2019, which expired on 30th September 2020. It was further averred that on 30th September 2019, while on duty, livestock belonging to the school was stolen from the cowshed and that the 2nd Claimant admitted negligence of duty, pleaded for pardon, and undertook to improve his performance. The Respondent further contended that following the outbreak of the COVID-19 pandemic, the closure of schools, and the alleged increase in criminal activities attributed to the negligence of security guards, it scaled down its workforce, thereby rendering the 2nd Claimant a victim of force majeure. The Respondent averred that it computed the Claimant's terminal dues, which remain available for collection upon clearance. 13. In relation to the 3rd Claimant, the Respondent contended that the COVID-19 pandemic, coupled with the closure of schools and the alleged increase in criminal activities arising from the negligence of security guards, necessitated the scaling down of its workforce, thereby rendering the Claimant a victim of force majeure. It was further averred that owing to the deteriorating security situation within the school and the need to safeguard public property and the students, the Trans-Nzoia County Commissioner deployed two-armed security officers to the school, while the Respondent engaged a private security firm as a long-term security measure. The Respondent further averred that on 1st April 2021, the 3rd Claimant was summarily dismissed for negligence of duty. It was stated that the Claimant's terminal dues had been computed and were available for collection upon clearance with the Respondent. 14. With regard to the 4th Claimant, the Respondent asserted that following the outbreak of the COVID-19 pandemic and the resultant closure of schools, it scaled down its workforce, thereby rendering the Claimant a victim of force majeure. The Respondent further averred that on 30th September 2019, while the 4th Claimant was on duty, livestock belonging to the school was stolen from the cowshed and that the Claimant admitted negligence of duty. It was further contended that on 1st April 2021, the 4th Claimant was summarily dismissed for negligence of duty and that his terminal dues had been computed and remained available for collection upon clearance with the Respondent. 15. The Respondent therefore averred that the Claimants were neither unfairly nor unreasonably suspended, dismissed or separated from employment as alleged. It maintained that the suspension, dismissal or separation from employment was fair, reasonable and justified in the circumstances. 16. Consequently, the Appellant prayed that the suit be dismissed with costs. 17. The matter subsequently proceeded to hearing, where the Claimants testified on 24th May 2024, while the Respondent called its principal, who testified on 8th July 2024 in furtherance of the Respondent’s case. 18. The 1st Claimant testified as CW1 and adopted his witness statement recorded on 27th September 2021 as his evidence in chief. He testified that he was employed as a security guard in 2018 and was stationed at the school's main gate during the day. He stated that although a school cow was stolen, the theft occurred at night while he was not on duty and that he was neither investigated by the police nor subjected to any disciplinary process by the school board. He further testified that he was not the guard assigned to the teachers' quarters where an alleged break-in occurred and denied any negligence on his part. 19. The 1st Claimant further testified that he was not sent on unpaid leave because of the COVID-19 pandemic but was unfairly terminated from employment. He maintained that security at the school had not deteriorated as alleged by the Respondent. Although he acknowledged requesting early retirement to enable him raise school fees, he stated that the Board never responded to his request. He also testified that he lodged a complaint with the Labour Office after his termination, never received the Respondent's alleged response letter, was never subjected to disciplinary proceedings on 1st April 2021 and was never invited to collect his terminal dues. 20. During cross-examination, the 1st Claimant testified that his gross monthly salary was Kshs. 10,250 inclusive of house allowance and that although he had no written contract of employment, he had been confirmed in employment. He stated that his duties were to guard school property. He admitted that the school cow was stolen while he was assigned to the main gate. He acknowledged that the COVID-19 pandemic adversely affected schools and that he had requested early retirement to access his benefits for payment of school fees. He further confirmed that NSSF contributions had been remitted and that there was no provision for gratuity or severance pay. Upon re-examination, he reiterated that he had never been disciplined over the stolen cow and maintained that he had been underpaid. 21. The 2nd Claimant, James Ekitala testified as CW2 and adopted the witness statement he recorded as his evidence. He testified that he was initially employed in 2005 as a security guard and later served at the Respondent's secondary school. He stated that on 30th September 2019, while guarding the main gate at night, a school cow was stolen but was later recovered. He testified that he flashed his torch at the thief, who fled, and that he was neither arrested nor disciplined over the incident. According to him, the Respondent subsequently informed him that it lacked funds due to the COVID-19 pandemic and sent him home. He maintained that he was never recalled to work, was never called to collect his terminal benefits, and had diligently discharged his duties throughout his employment. 22. During cross-examination, the 2nd Claimant acknowledged that the COVID-19 pandemic contributed to the termination of his employment but maintained that security guards could still have continued working. He testified that after the Claimants were sent home, the Respondent engaged police officers to guard the school. He denied any negligence in the performance of his duties and maintained that he had been unfairly terminated. He further testified that although he believed he was entitled to gratuity and severance pay, there was no express contractual provision providing for the same. Upon re-examination, he stated that police officers had always patrolled the school even before their termination and reiterated that he had never been given reasons for the termination of his employment. 23. The 3rd Claimant, John Mukhwana (CW3), adopted his witness statement dated 27th September 2021 as his evidence-in-chief and relied on the documents filed in support of his case. He testified that he had never been investigated, issued with a warning, or subjected to any disciplinary process by the Respondent prior to the termination of his employment. 24. During cross-examination, the 3rd Claimant testified that he earned an all-inclusive monthly salary of Kshs. 10,250 and conceded that he had never lodged any complaint with the Respondent regarding alleged underpayment. He stated that the theft complained of occurred in a different section of the school from where he had been deployed on duty and maintained that he had not failed to perform his duties. He further testified that his employment was unfairly terminated and that, following the Claimants' departure, the Respondent engaged police officers to guard the school. He maintained that neither he nor the other Claimants had been negligent in the performance of their duties. 25. The 4th Claimant, John Loptiro Singila CW4, also adopted his witness statement and documents as his evidence. He testified that he had initially been employed in 2016 and denied any negligence on his part. He stated that at the time the school cow was stolen, he was guarding the administration block and not the staff quarters. He denied that there had been any vandalism at the administration block, denied ever begging for forgiveness, and testified that he had never been subjected to any disciplinary proceedings. He further stated that after being sent home during the COVID-19 pandemic, he was never recalled to work despite the Respondent engaging new security guards. 26. During cross-examination, the 4th Claimant conceded that he had no written contract or letter of appointment from 2016 and acknowledged that he was earning a monthly salary of Kshs. 10,250 inclusive of house allowance, medical cover and NSSF contributions. He admitted receiving a warning letter relating to lost items but maintained that he had diligently discharged his duties. He denied that he had admitted negligence or sought pardon from the Respondent. He reiterated that although theft occurred while he was on duty, he had not been subjected to any disciplinary process prior to the termination of his employment. 27. The Respondent called its headteacher, David Luganda who testified as RW1 on its behalf. He stated that the Claimants were summarily dismissed after thefts occurred while they were on duty and that the Respondent had reported the incidents to the police, resulting in the issuance of Occurrence Book (OB) numbers. 28. On cross examination, RW1 admitted during cross-examination that the Respondent had no letters notifying the Claimants of their summary dismissal, no records of disciplinary proceedings, no warning letters, no minutes evidencing disciplinary hearings, and no letters showing that any of the Claimants had admitted negligence or sought pardon. He further acknowledged that although the Board had resolved to engage a private security firm and had been allocated two armed police officers during the COVID-19 period, the Claimants' services had been essential. He also conceded that there was no documentary evidence demonstrating compliance with the disciplinary procedure other than Board meetings. 29. Upon re-examination, he stated that verbal warnings were permissible and maintained that the Claimants' services were ultimately terminated due to the combined effects of the COVID-19 pandemic and insecurity within the school. **The Appellant’s submissions** 1. In its submissions, the Appellant crystallized the grounds of appeal into the following two issues: 2. Whether the Respondents' termination was unfair and unlawful 3. Whether the Respondents are entitled to the reliefs sought 4. On the first issue, the Appellant submitted that the trial court erred in finding that the Respondents' termination was unfair and unlawful. It was argued that the Respondents' separation from employment arose from lawful circumstances, including mutual separation, expiry of a fixed-term contract, and force majeure occasioned by the COVID-19 pandemic, rather than an unlawful termination by the Appellant. 5. With respect to the 1st Respondent, the Appellant submitted that the evidence showed that he voluntarily sought early retirement, which request was accepted by the Appellant. It was contended that his separation from employment was therefore by mutual consent and not through dismissal. The Appellant further submitted that prior to his request for early retirement, several theft incidents had occurred while he was on duty, prompting his decision to leave employment. It was therefore argued that the trial court erred in finding that his termination was unfair. 6. As regards the 2nd Respondent, the Appellant submitted that he had been engaged on a one-year fixed-term contract commencing on 1st October 2018, which expired by effluxion of time. It was contended that the employment relationship came to an end upon expiry of the contract and not through any unilateral act of termination by the Appellant. The trial court was therefore faulted for treating the expiry of the contract as an unfair termination. 7. Regarding the 3rd and 4th Respondents, the Appellant submitted that following the outbreak of the COVID-19 pandemic, the school was indefinitely closed and employees were sent on unpaid leave. It was further submitted that during the period of closure, the school experienced theft and vandalism while the Respondents were allegedly on duty, necessitating investigations and their suspension. 8. The Appellant further submitted that owing to the financial challenges occasioned by the pandemic, coupled with the deployment of armed police officers by the County Commissioner to provide security at the school, the Respondents' services became redundant. It was therefore contended that their separation from employment resulted from force majeure and circumstances beyond the Appellant's control. 9. On the reliefs awarded by the trial court, the Appellant submitted that under section 49 of the Employment Act, the Court is required to consider, among other factors, the extent to which an employee contributed to the termination before awarding compensation. It was argued that the trial court failed to take into account the Respondents' alleged contribution to the events leading to the termination. 10. With regard to the award of salary arrears for the period between June 2020 and February 2021, the Appellant submitted that the school remained closed during that period due to the COVID-19 pandemic and that no services were rendered by the Respondents. It was argued that all employees had been sent on unpaid leave pending the reopening of schools and that the Respondents were therefore not entitled to salaries for work that was not performed. 11. On the awards for underpayment of wages, statutory entitlements and accrued leave, the Appellant submitted that these were claims in the nature of special damages, which required to be specifically pleaded and strictly proved. It was contended that the Respondents neither pleaded the particulars of the alleged underpayments nor identified the applicable Regulation of Wages Orders, the relevant wage category or the applicable wage zone. The Appellant thus submitted trial court was said to have lacked any legal or evidentiary basis for making the awards. 12. As regards the award of compensation for unfair termination, the Appellant submitted that the Respondents themselves acknowledged that the school had been closed due to the COVID-19 pandemic and that employees had been sent on unpaid leave pending normalization of the situation. It was argued that the trial court unfairly penalized the Appellant for circumstances that were beyond its control and that the award ought therefore to be set aside. 13. On the awards of gratuity and service pay, the Appellant submitted that all the Respondents admitted that statutory contributions had been remitted to the National Social Security Fund (NSSF) and produced NSSF statements confirming those remittances. Relying on sections 35(5) and 35(6) of the Employment Act, the Appellant argued that employees contributing to the NSSF are expressly excluded from entitlement to service pay. It was therefore submitted that the trial court erred in awarding service pay or gratuity on the basis of alleged non-remittance of statutory deductions. 14. Consequently, the Appellant submitted that the trial court misapprehended both the facts and the law in finding that the Respondents had been unfairly terminated and in awarding the various remedies. It accordingly urged the Court to allow the appeal, set aside the judgment of the trial court in its entirety, and substitute it with an order dismissing the Respondents' claim with costs. **The Respondents’ submissions** 1. On their part, the Respondents set out the issues for determination in his submissions to be: * 1. Whether the Appellant discharged its statutory burden under sections 41 and 43 of the Employment Act to prove that the Respondents’ employment was fair and lawful 2. Whether the Trial Court properly exercised its discretion under Sections 49 and 50 of the Employment Act in awarding compensation to the Respondents 3. Whether the Respondents claims for unpaid leave and underpayment were time-barred under Section 90 of the Employment Act. 2. On the first issue, On the first issue, the Respondents submitted that the Appellant failed to discharge the statutory burden imposed under sections 41, 43 and 45 of the Employment Act. They argued that an employer bears the obligation of proving both the existence of a valid and fair reason for termination and compliance with the prescribed procedural safeguards before terminating an employee's services. Reliance was placed on **Walter Ogal Anuro v Teachers Service Commission [2013] eKLR, as affirmed in Kenafric Bakery Limited v Wanyama & 2 Others and G4S Kenya Limited v Mutinda & Another (Employment and Labour Relations Appeal Nos. E018 & E019 of 2023 (Consolidated)) [2025] KEELRC 2047 (KLR),** for the proposition that substantive and procedural fairness are mandatory requirements and that failure to satisfy either renders a termination unfair. 3. The Respondents further submitted that the Appellant did not produce any documentary evidence demonstrating that they were informed of the allegations against them, issued with notices to show cause, invited to disciplinary hearings, or afforded an opportunity to respond to the allegations as required under section 41 of the Employment Act. They argued that the allegations of negligence remained unsupported by credible evidence and that the trial court therefore correctly found that the Appellant had failed to establish a valid reason for termination within the meaning of section 43 of the Act. 4. On the award of compensation, the Respondents submitted that the trial court properly exercised its discretion under sections 49 and 50 of the Employment Act. They argued that the award of nine months' gross salary was within the statutory limit and reflected the relevant considerations, including the Respondents' length of service, the absence of contributory misconduct, the loss of employment, and the Appellant's failure to comply with its statutory obligations. They further submitted that an appellate court should not interfere with the exercise of judicial discretion unless it is shown that the trial court acted on wrong principles or misdirected itself, which had not been demonstrated in the present appeal. 5. On the issue of limitation, the Respondents submitted that their claims for underpayment of wages and unpaid leave constituted continuing injuries within the meaning of section 90 of the Employment Act. They relied on **Ponders Limited v Kihumba [2025] KEELRC 1699 and Gichuru v Emmanuel Trading Company Limited [2024] KEELRC 2758** in support of the proposition that where an employer continuously fails to discharge its statutory obligations, the limitation period begins to run only upon cessation of the continuing injury. 6. They argued that the alleged underpayments and failure to grant annual leave persisted throughout the subsistence of the employment relationship and that the Appellant's decision to place them on unpaid leave, coupled with its failure to recall them to work or regularize their employment, amounted to a continuing breach. According to the Respondents, the cause of action crystallised only when it became apparent that they would not be recalled to work, and the suit was therefore filed within the limitation period prescribed under section 90 of the Employment Act. 7. The Respondents further contended that the Appellant neither adduced evidence demonstrating that the claims were time-barred nor raised limitation as a substantive issue before the trial court. They therefore urged the Court to reject the Appellant's argument on limitation. 8. In conclusion, the Respondents submitted that the trial court correctly found that their termination was unfair for want of both substantive justification and procedural fairness, properly exercised its discretion in awarding compensation, and correctly held that the claims for underpayment and unpaid leave were not statute-barred. They accordingly urged the Court to dismiss the appeal with costs. **Determination** 1. I have considered the Appellant’s Record of Appeal and the submissions by both parties. The grounds of appeal may be summarized into the following issues for determination: * 1. Whether the separation of the Respondents from employment was unfair, unlawful or justified in the circumstances. 2. Whether the Respondents were entitled to the reliefs awarded by the trial court. 3. What orders should issue? *Whether the separation of the Respondents from employment was unfair, unlawful or justified in the circumstances* 1. The Respondents in their pleadings before the trial court averred that they were sent on indefinite leave following the Covid 19 pandemic and subsequently terminated from employment by the Appellant. 2. Evidence on record confirms that the employment relationship between the Respondents and the Appellant came to an end following the closure of schools during the Covid-19 pandemic, alleged insecurity incidents within the school and the eventual deployment of 2 armed police officers and engagement of a private security firm. 3. The Appellant, however, advanced varying and, at times, contradictory reasons for the Respondents' separation from employment. While the 1st Respondent was said to have left employment through mutual separation following his request for early retirement and the 2nd Respondent's employment was alleged to have come to an end by effluxion of time, the 3rd and 4th Respondents were variously described as victims of force majeure arising from the COVID-19 pandemic, employees suspended on account of alleged negligence, and ultimately as having been rendered redundant following the outsourcing of security services and the deployment of armed police officers. These glaring inconsistencies cast doubt on the Appellant's assertion that there existed a clear, valid and lawful basis for the separation of the Respondents from employment. 4. Section 43 of the Employment Act provides that in a claim arising out of termination of contract of employment the employer shall be required to prove the reason or reasons for the termination and where the employer fails to do so the termination shall be deemed to be unfair within the meaning of section 45(2) of the Act. Subsection 43(2) further provides that the reasons must be those that the employer **genuinely believes to exist at the time of termination.** 5. The evidence tendered by the Appellant did not disclose a consistent or lawful basis upon which the Respondents’ employment was terminated. 6. In addition, there is no evidence that the Respondents were taken through the due process as contemplated by the provisions of section 41 of the Employment Act which require the employer to notify the employees of the allegations against them and accord them an opportunity to respond in the presence of a fellow employee or shop floor representative. The allegations of negligence therefore remained mere accusations unsupported by any evidence of disciplinary process. 7. Further, if indeed the Respondents were rendered redundant following the engagement of a private security firm, the Appellant was obligated to comply with section 40 of the Employment Act. The record however reveals that no redundancy notices were issued to either the affected employees or the Labour Officer and no evidence was tendered demonstrating compliance with the mandatory statutory procedure governing redundancy. The Appellant cannot therefore rely on redundancy as justification for the separation while simultaneously admitting non-compliance with the law. 8. In addition, the Appellant’s defence that the termination of the Respondents’ employment was occasioned by the Covid-19 pandemic and force majeure circumstances does not hold water, as such circumstances did not absolve the Appellant from complying with the mandatory provisions of the Employment Act. Whereas the pandemic undoubtedly disrupted operations across institutions globally, employers nonetheless remained bound by the statutory requirements relating to fair labour practices and lawful termination of employment. 9. Consequently, this court finds no basis for interfering with the trial court’s finding that the separation of the Respondents from employment was unfair and unlawful. The Appellant failed to prove valid and fair reasons for the termination and further failed to prove compliance with the mandatory procedural requirements under the Employment Act. *Whether the Respondents were entitled to the reliefs awarded by the trial court.* 1. In its judgment, the trial court awarded the Claimants the reliefs they sought in their Memorandum of Claim dated 27th September 2021. I will address the said reliefs in separate heads as hereunder: - 2. *Salary arrears and allowances from June 2020 to February 2021* The Appellant challenged the award of salary arrears for the period between June 2020 and February 2021 on the basis that no services were rendered during the Covid-19 closure period. The evidence however shows that the Respondents remained employees of the Appellant during that period and had merely been sent on indefinite unpaid leave. An employer cannot unilaterally withhold salaries without lawful basis or mutual agreement. In the circumstances, the trial court cannot be faulted for awarding salary arrears for the period prior to the eventual separation from employment. 1. *Compensation for unfair termination* On the award of compensation for unfair termination, section 49 of the Employment Act vests the court with discretion to award compensation after taking into account the circumstances of each case. The trial court awarded compensation equivalent to eight months’ salary. Considering the length of service of the Respondents, the manner in which the employment relationship was terminated and the Appellant’s failure to comply with statutory requirements, this court is not persuaded that the award was excessive or based on wrong principles. There is therefore no justification for appellate interference with the exercise of discretion by the trial court. 1. *Pay in lieu of notice* Section 35 of the Employment Act requires an employer to issue notice before termination of employment or payment in lieu thereof. The evidence on record demonstrates that the Respondents were separated from employment without issuance of the requisite notice. The Respondents were entitled to payment in lieu of notice and this court finds no basis for interfering with the award made by the trial court under this head. 1. *Unpaid leave* From the record, the Respondents were employees in continuous service and were therefore entitled to annual leave in accordance with section 28 of the Employment Act, or payment in lieu thereof where such leave was not taken. The burden rested upon the Appellant, pursuant to sections 10(7) and 74(1)(f) of the Employment Act, to produce employment records, including leave records, demonstrating that the Respondents had proceeded on annual leave or had been compensated in lieu thereof. No such records were produced before the trial court. In the absence of such evidence, this court finds no basis for interfering with the award made by the trial court under this head 1. *Severance pay* The Appellant contended that the Respondents were not entitled to severance pay on account that their separation from employment was lawful and occasioned by force majeure circumstances and operational challenges arising from the Covid-19 pandemic. However, the evidence on record demonstrates that the Appellant outsourced security services and engaged a private security firm, thereby effectively abolishing the positions previously held by the Respondents. The separation therefore bore all the hallmarks of redundancy within the meaning of section 2 of the Employment Act. Having found that the Appellant failed to comply with the mandatory requirements of section 40 of the Employment Act, including issuance of notices to the affected employees and the Labour Officer, the Respondents were entitled to severance pay as awarded by the trial court. This court therefore finds no reason to interfere with the award under this head. 1. *Gratuity* The Respondents were awarded gratuity by the trial court. From the record, the Respondents admitted in cross-examination that gratuity was not provided for in their letters of appointment. In addition, the record confirms that the Respondents were contributors to the National Social Security Fund (NSSF). In the absence of any contractual or statutory provision establishing entitlement to gratuity, the trial court fell into error in awarding the same. Consequently, the award under this head cannot stand and is hereby set aside. 1. *Statutory entitlements* The trial court awarded the Respondents statutory entitlements. However, this court has consistently held that statutory deductions and remittances are not ordinarily recoverable through the court since the relevant statutes establish specific enforcement and recovery mechanisms through the designated statutory bodies. The trial court erred in making an award under this head and the same is hereby set aside. 1. Underpayments for the periods of service The trial court awarded the Respondents underpayments which the Appellant has challenged on appeal on the basis that the same were neither specifically pleaded nor strictly proved. At the trial, the Respondents pleaded that they were underpaid during the course of their employment and testified on the wages they earned. However, beyond general assertions, the Respondents did not sufficiently particularize the alleged underpayments by demonstrating the specific wage orders applicable to them or the computation showing the difference between the wages paid and the prescribed statutory minimum wages for the respective periods claimed. While the court may take judicial notice of the applicable Regulation of Wages Orders, a claim for underpayment must nonetheless be supported by clear pleadings and evidence demonstrating the extent of the alleged underpayment. In the absence of sufficient particulars and proper computation placed before the trial court, the basis upon which the awards under this head were made remains unclear. I therefore find that the trial court erred in awarding underpayments without sufficient evidentiary foundation and the award under this head is hereby set aside. **Conclusion** 1. The upshot is that the appeal partially succeeds. Accordingly, the Court makes the following orders: 2. The finding of the trial court that the termination of the Respondents’ employment was unfair and unlawful is hereby upheld. 3. The awards for salary arrears and allowances from June 2020 to February 2021 are hereby upheld. 4. The award for compensation for unfair termination is hereby upheld. 5. The award for pay in lieu of notice is hereby upheld. 6. The award for unpaid leave is hereby upheld. 7. The award for severance pay is hereby upheld. 8. The award for gratuity is hereby set aside. 9. The award for statutory entitlements is hereby set aside. 10. The award for underpayments for the periods of service is hereby set aside. 11. As the appeal has partially succeeded, each party shall bear its costs. 12. Orders accordingly **DATED, DELIVERED AND SIGNED** **ON THIS 21ST DAY OF MAY, 2026.** **M. ONYANGO** **JUDGE**