Management Committee Kitale Secondary School v Maina & 3 others (Employment and Labour Relations Appeal E010 of 2024) [2026] KEELRC 2096 (KLR) (21 May 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KITALE** **ELRC APPEAL NO. E010 OF 2024** *(Before Hon. Lady Justice Maureen Onyango)* **THE MANAGEMENT COMMITTEE** **KITALE SCHOOL SECONDARY…………..…………. APPELLANT** **VERSUS** **GILBERT CHIMASYA MAINA……………..………1ST RESPONDENT** **GEORGE WEKESA……………………..….…………2ND RESPONDENT** **EMMANUEL SIMIYU…………………………………3RD RESPONDENT** **SINGILA KOCHOLIA……………………….………..4TH RESPONDENT** (*Being an appeal from the judgment of Hon. S.K. Mutai delivered on 28th day of October 2024 of the Chief Magistrates Court at Kitale in MCELRC No. 15 of 2021; Gilbert Chimasya Maina, George Wekesa, Emmanuel Simiyu Nalianya and Singila Kocholia v The Board of Management Kitale School Secondary)* **JUDGMENT** 1. The Appellant herein was the Respondent, while the Respondents were the Claimants in Kitale CMELRC No. 15 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. EO15 OF 2021, Gilbert Chimasya & Others v The Management Committee Kitale Secondary 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 submission are dated 10th February 2026 while the Respondents’ 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, 2nd and 3rd Claimants averred that they were employed by the Appellant in 2012 and worked as security guards without letters of appointment until 26th February 2018 when they were issued with letters of appointment as security guards. 4. It is averred that the 4th Claimant was employed by the Respondent in September 2018 and worked as a security guard without a letter of appointment. 5. The 1st, 2nd and 3rd Claimants stated that from 2012, each of them earned an all-inclusive monthly salary of Kshs. 5,000 until October 2017, when the Respondent began paying them an NSSF allowance. They further averred that upon being issued with letters of appointment in 2018, their monthly remuneration comprised a basic salary of Kshs. 6,050, medical allowance of Kshs. 390, house allowance of Kshs. 1,200 and an NSSF allowance which they stated varied and increased annually. 6. The Claimants contended that they worked diligently for the Respondent until 29th June 2020, when they were sent on indefinite unpaid leave and their services suspended until the Covid-19 situation normalized and school operations resumed. 7. The Claimants stated that they subsequently approached the Respondent to inquire when they would resume work, but were instead issued with termination letters. 8. 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. 9. 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. 10. 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 Respondents (Claimants) in their claim. With regard to the 1st Respondent, Gilbert Chimasya Maina, the Appellant averred that he was serving under a three-year contract effective from 1st January 2018, which expired on 26th February 2021 and that he was subsequently informed through a letter dated 5th March 2021 that his contract would not be renewed. 11. With respect to the 2nd Respondent, the Appellant averred that his letter of appointment was dated 3rd January 2012. The Appellant further contended that the 2nd Respondent had been negligent in the performance of his duties, resulting in the loss of public property, which amounted to a fundamental breach of his contract of employment. It was averred that the 2nd Respondent’s terminal dues had been computed and were available for collection upon clearance with the Appellant. 12. The Appellant further averred that due to the Covid-19 pandemic, which led to the closure of schools and increased criminal activities allegedly occasioned by the negligence of security guards, it scaled down its workforce and the 2nd Respondent became a victim of force majeure. The Appellant stated that owing to the deteriorating security situation within the school and the need to safeguard public property and students, the Trans-Nzoia County Commissioner deployed two armed security officers to the school and, as a long-term measure, the Appellant procured the services of a private security firm. Consequently, on 5th March 2021, the 2nd Respondent was declared redundant upon the engagement of the security firm to guard the school premises. 13. In relation to the 3rd Respondent, the Appellant similarly contended that the Covid-19 pandemic, coupled with the closure of schools and increased criminal activities allegedly arising from the negligence of security guards, necessitated a scaling down of its workforce, thereby rendering the 3rd Respondent a victim of force majeure. The Appellant further averred that due to the deteriorating security situation within the school and the need to protect public property and students, the Trans-Nzoia County Commissioner deployed two, armed security officers to the school while the Appellant engaged a private security firm as a long-term security measure. It was averred that on 5th March 2021, the 3rd Respondent was rendered redundant following the engagement of the said security firm. The Appellant also alleged that the 3rd Respondent had been negligent in the discharge of his duties, leading to the loss of public property, which amounted to a fundamental breach of his contract of employment. The Appellant stated that the 3rd Respondent’s terminal dues had been computed and were available for collection upon clearance with the Appellant. 14. With regard to the 4th Respondent, the Appellant asserted that he was a casual labourer and that due to the Covid-19 pandemic, which led to the closure of schools, it scaled down its workforce, thereby rendering the 4th Respondent a victim of force majeure. The Appellant further averred that the 4th Respondent’s ex gratia dues had been computed and were available for collection upon clearance with the Appellant. 15. The Appellant therefore averred that the Respondents 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 Respondents testified on 24th May 2024, while the Appellant called its principal, who testified on 8th July 2024 in furtherance of the Appellant’s case. 18. The 1st Respondent testified as CW1 and adopted his witness statement recorded on 27th September 2021 as his evidence in chief. He stated that he was never issued with a termination letter and maintained that the reason for the termination of his employment was not the Covid-19 pandemic, since other employees were hired immediately thereafter. 19. On cross-examination, CW1 stated that he was employed in 2012, that in 2018 the Respondent issued him with a renewable three-year contract which was due to expire on 26th February 2021. He further testified that in March 2020, while he was on duty, a television set and flour were stolen from the school. He stated that he left work on 29th June 2020 after the school was closed due to the Covid-19 pandemic. 20. On re-examination, CW1 stated that although the theft occurred while he was on duty, he was never charged with any offence relating to the theft. 21. The 2nd Respondent testified as CW2 and adopted his witness statement recorded on 29th September 2021 as his evidence in chief. He denied being negligent in the performance of his duties and further denied that he had been rendered redundant due to the Covid-19 pandemic. He stated that he was never issued with a redundancy notice. 22. On cross-examination, CW2 stated that he worked with one Evans Burudi and that a television set was stolen from Evan’s section in the dining hall, while a cow was stolen from the primary section. He further stated that he was sent on unpaid leave following the Covid-19 pandemic. 23. On re-examination, CW2 stated that the guards were assigned to specific sections and that in the event of any incident occurring within a particular section, the guard assigned to that section bore responsibility. He testified that the theft in the dining hall occurred in the section under the responsibility of Evans Burudi, who was subsequently dismissed after being subjected to due process. He maintained that unlike Evans Burudi, he was never subjected to any disciplinary process and that he worked in the secondary section. 24. The 3rd Respondent, Emmanuel Simiyu Nalianya, testified as CW3 and adopted his witness statement recorded on 29th September 2021 as his evidence in chief. He stated that he was employed in 2018 and was later transferred from the primary section to the secondary section. He further testified that he was never given reasons for the termination of his employment and was not subjected to any disciplinary hearing. 25. On cross-examination, CW3 stated that he was initially employed by the Respondent in 2007 and worked in the primary section. He testified that in 2018 he was transferred to the secondary section and that at the time of termination he earned a monthly salary of Kshs. 9,000 together with house, medical and NSSF allowances. He further stated that there was provision for gratuity and that NSSF contributions were remitted from 2012. He testified that he worked as a guard and that no incident occurred within his assigned section as alleged by the Respondent. He however acknowledged that there had been theft of a television set from the dining hall section under the supervision of one Birundu, but he guarded the secondary school dormitory. 26. The 4th Respondent, Singila Kocholia, testified as CW4 and adopted his witness statement recorded on 27th September 2021 as his evidence in chief. He stated that his employment was terminated due to Covid-19 and that he had initially been informed that he would resume work once the Covid-19 situation normalized. He testified that he never resumed work after the pandemic because the school engaged a new security company. He maintained that he was never issued with any redundancy notice and prayed for the reliefs sought in the Memorandum of Claim. 27. On cross-examination, CW4 stated that school property had been stolen and that he had been employed to guard school property. He however maintained that nothing was stolen from his assigned section. He further testified that he had been issued with letters placing him on indefinite leave due to Covid-19. He further stated that there was no provision for gratuity in his appointment letter and that he was paid NSSF upon retirement. 28. The Appellant’s witness, Rose Pande, testified as RW1 and adopted her witness statement recorded on 1st November 2021 as her evidence in chief. She stated that the 1st Respondent had served as a security guard on contract from 2018 until 5th March 2021 when his three-year contract expired and was not renewed. She further testified that during the Covid-19 pandemic in 2020, all school workers were sent on unpaid leave following a decision of the Board. 29. RW1 further testified that the 2nd Respondent, George Wekesa, had been employed in 2012 and that his contract was terminated due to the Covid-19 pandemic and insecurity within the school. She stated that several theft incidents had occurred within the school, including the theft of a television set, break-ins at the school bakery and the cutting and sale of trees. According to RW1, the Board resolved to engage a security firm and requested the County Police Commander to deploy two police officers to the school. 30. RW1 further testified that the 3rd Respondent, Emmanuel, was a permanent and pensionable employee who was similarly affected by the Covid-19 pandemic, while the 4th Respondent, Singila Kocholia, was a casual labourer who was also affected by the Board’s decision. 31. On cross-examination, RW1 stated that although the Covid-19 pandemic affected everyone, insecurity within the school persisted yet security services were classified as essential services and guards had been allowed to continue working. She testified that the Board resolved to engage three security firms to provide security services to the school. 32. RW1 denied that the Appellant used the Covid-19 pandemic as a basis to dismiss the Respondents and maintained that there was insecurity within the school and incidents of theft. She however admitted that there had been no disciplinary proceedings against the 2nd Respondent, George Wekesa, and that no complaint of misconduct had been raised against him. She further stated that the Labour Office was not involved in the redundancy process. 33. With regard to the 3rd Respondent, RW1 stated that Emmanuel Simiyu joined the school in 2018 and had been transferred from the primary section to the secondary section. She stated that she was unaware of the transfer letter and maintained that he had been engaged afresh by a different Board. RW1 admitted that there was no disciplinary case against Emmanuel but maintained that his employment was terminated after the Appellant engaged a security firm to replace him following breaches of duty and loss of school property. 34. RW1 further testified that the 4th Respondent, Singila, was a casual labourer who was terminated from employment due to the Covid-19 pandemic and was only eligible for ex gratia payment at the discretion of the Board. She confirmed that although the Respondents were alleged to have been negligent, no disciplinary proceedings or action for gross misconduct had ever been commenced against any of the four Respondents and that they were rendered redundant. **The Appellant’s submissions** 1. In its submissions, the Appellant crystallized the grounds of appeal into the following two issues: 2. Whether the termination of the Respondents 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 termination of the Respondents was unlawful. It was submitted that the Respondents’ separation from employment was lawful and proper, having arisen from fundamental breaches of their contracts of employment, effluxion of time and force majeure circumstances which necessitated the steps taken by the Appellant. 5. With regard to the 1st Respondent, the Appellant submitted that the he testified that he was employed on a three-year contract commencing on 26th February 2018 which expired on 26th February 2021 and that vide a letter dated 5th March 2021, the 1st Respondent was informed of the Appellant’s decision not to renew the contract. The Appellant therefore submitted that at the time of separation, the contract of employment had already lapsed by operation of its terms. It was contended that the separation was not occasioned by any unilateral action on the part of the Appellant but by effluxion of time in accordance with the contractual provisions. 6. The Appellant thus submitted that the learned trial magistrate erred in finding that the 1st Respondent’s termination was unfair while the contract had expired by effluxion of time. The Court was consequently urged to set aside the findings of the trial court on the issue. 7. Regarding the 2nd, 3rd and 4th Respondents, the Appellant submitted that RW1 testified that as a result of the devastating effects of the Covid-19 pandemic, the school was indefinitely closed down and employees were sent on unpaid leave. It was further submitted that during the period of closure, the school premises were broken into and several items stolen. 8. According to the Appellant, the Respondents, who were allegedly on duty at the material time, were adversely mentioned in connection with the theft, thereby necessitating their suspension to pave way for investigations. 9. The Appellant further submitted that during the suspension period, the County Commissioner deployed armed police officers to the institution who effectively undertook the functions previously performed by the Respondents, the school having lacked the financial capacity to engage alternative security. 10. The Appellant therefore contended that the Respondents were victims of force majeure circumstances occasioned by the Covid-19 pandemic and circumstances beyond the Appellant’s control. 11. On the second issue, the Appellant, while relying on section 49 of the Employment Act, submitted that the said provision obligates the Court, in determining the nature and quantum of reliefs to be awarded in claims for unfair termination, to consider the extent, if any, to which an employee contributed to the termination of the contract of service. 12. With respect to the claim for salary arrears from June 2020 to February 2021, the Appellant submitted that the closure of the institution was occasioned by factors beyond the school’s control, namely the Covid-19 pandemic which affected institutions and organizations globally. According to the Appellant, the Respondents themselves acknowledged in their pleadings that during the period in question the school was not operational and that they were not the only employees affected, as all employees had been sent on unpaid leave pending normalization of the situation. 13. The Appellant therefore urged the Court to disallow the claim for salary arrears on the basis that no services were rendered during the period in question so as to justify the award sought. 14. On the award for salary underpayments, statutory entitlements and unpaid leave, the Appellant submitted that the said claims were in the nature of special damages which had to be specifically pleaded and strictly proved. It was submitted that the Respondents neither pleaded the particulars of the alleged underpayments nor adduced evidence in proof thereof. The Appellant contended that the Memorandum of Claim did not indicate the amount allegedly underpaid, nor did it place reliance on any specific wage order or comparative document to support the claim. 15. It was further submitted that the Respondents failed to plead whether they were subject to any specific Regulation of Wages (General) (Amendment) Order and further failed to indicate whether their workplace fell within a city, municipality or any other wage zone for purposes of determining the applicable minimum wage. The Appellant argued that in the absence of such pleadings and particulars, there was no legal or evidentiary basis upon which the trial court could properly make awards under those heads. 16. In addition, the Appellant submitted that the Respondents attempted to improve their pleadings through written submissions before the trial court. It was contended that written submissions constitute neither pleadings nor evidence and could not cure the deficiencies in the Respondents’ case. The Appellant submitted that the failure to specifically plead and prove the claims under the said heads was fatal and that the trial court ought not to have granted the awards. 17. On the award for damages for wrongful dismissal and unfair termination, the Appellant submitted that the trial court awarded damages equivalent to eight months’ salary for the period running from June 2020 to February 2021. The Appellant submitted that in his testimony before the trial court, the Respondent acknowledged that at the time of separation his contract of employment had expired. It was further submitted that between June 2020 and February 2021 the school was not operational due to the Covid-19 pandemic and all employees had been sent home on unpaid leave until the situation normalized. 18. The Appellant therefore submitted that it was unfair to punish the Appellant for circumstances that were beyond its control, considering that the closure of the school affected all employees and not only the Respondents. The Court was urged to set aside the award made under that head. 19. On the award of severance pay and gratuity, the Appellant submitted that although the Respondents contended that gratuity had not been expressly provided for in their contracts of employment, the trial court nonetheless proceeded to award both severance pay and gratuity as prayed for. 20. The Appellant submitted that all the Respondents admitted that statutory contributions to the National Social Security Fund (NSSF) were made by the employer and indeed produced NSSF statements at pages 42 to 48 of the Record of Appeal showing the remittances made. It was submitted that the Respondents argued that because the Appellant allegedly failed to fully comply with its statutory obligation to remit contributions for some months, the Court ought to compel the Appellant to pay service pay. 21. The Appellant relied on section 35(5) of the Employment Act which provides for service pay and further submitted that section 35(6) of the Act expressly excludes certain categories of employees from entitlement to service pay, including employees who are contributors to statutory social security schemes such as the NSSF. 22. The Appellant submitted that the Respondents fell within the category of employees contemplated under section 35(6) of the Employment Act and were consequently not entitled to service pay or gratuity. 23. It was further submitted that where an employer fails to remit NSSF contributions as required, the appropriate remedy lies under section 14 of the NSSF Act. According to the Appellant, where statute expressly provides a remedy for a particular grievance, neither litigants nor the Court should devise an alternative remedy outside the statutory framework. 24. The Appellant contended that the provisions of the NSSF Act do not contemplate payment of service pay as a sanction for failure to remit statutory deductions and that there was therefore no legal justification for the trial court to award service pay or gratuity to the Respondents. 25. The Appellant submitted that even assuming that there had been failure to remit certain contributions as alleged by the Respondents, the remedy lay under section 14 of the NSSF Act and not in a claim for service pay before this Court. The Appellant urged the Court to set aside the award made under that head. 26. In the end, the Appellant prayed that the judgment of the trial court be set aside in its entirety and substituted with an order dismissing the claims by the Respondents with costs. **The Respondents’ submissions** 1. On their part, the Respondents set out the issues for determination in their 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, the Respondents submitted that the learned trial magistrate properly evaluated the evidence placed before the court and correctly found that the termination of their employment was unfair and unlawful. It is the Respondents submission that the Appellant failed to comply with both the substantive and procedural requirements set out under sections 41, 43 and 45 of the Employment Act. The Respondents submitted that the Appellant neither issued valid reasons for termination nor accorded the Respondents a fair hearing before separating them from employment. 3. With regard to the 1st Respondent, the Respondents submitted that although the Appellant sought to justify the separation on account of effluxion of time, the evidence on record demonstrated that the 1st Respondent had served the Appellant continuously from the year 2012 and was only issued with a written contract on 26th February 2018. According to the Respondents, the fixed-term contract did not extinguish the long-standing employment relationship that had existed between the parties prior to the issuance of the written contract. 4. The Respondents further submitted that the letter dated 5th March 2021 informing the 1st Respondent that the contract would not be renewed was in substance a termination of employment and not a mere expiry of contract. It was their contention that the Appellant failed to demonstrate any valid reason for declining to renew the contract and further failed to subject the 1st Respondent to any fair process prior to the separation. 5. As regards the 2nd, 3rd and 4th Respondents, the Respondents submitted that they were neither accorded a hearing nor formally informed of the allegations linking them to the alleged theft at the school premises. It was submitted that although the Appellant alleged that investigations were being conducted, no evidence was produced before the trial court to demonstrate that the Respondents were ever charged, interdicted or found culpable in relation to the alleged theft. 6. The Respondents further submitted that the Appellant could not rely on the Covid-19 pandemic or force majeure to justify the termination of employment without complying with the mandatory provisions of the Employment Act. It was their contention that the law did not permit an employer to send employees home indefinitely without pay and thereafter terminate their services without due process. 7. The Respondents submitted that even during periods of operational difficulty occasioned by the Covid-19 pandemic, employers remained bound by the provisions of the Employment Act relating to fair labour practices, procedural fairness and lawful termination of employment. 8. On the Appellant’s contention that the Respondents were on unpaid leave during the closure of the institution, the Respondents submitted that there was no evidence that they consented to being placed on unpaid leave. They argued that an employer could not unilaterally vary terms of employment to the detriment of employees without consultation or agreement. 9. With regard to the award of salary arrears, the Respondents submitted that they remained employees of the Appellant during the period between June 2020 and February 2021 and that there was no lawful termination of their contracts during that period. They maintained that they were entitled to their salaries and dues for the period claimed. 10. On the issue of underpayments, statutory entitlements and unpaid leave, the Respondents submitted that the trial court properly considered the evidence on record and correctly awarded the claims. It was submitted that the Respondents had pleaded the relevant claims in the Memorandum of Claim and adduced evidence in support thereof. 11. The Respondents further submitted that the applicable Regulation of Wages Orders are matters of law and that the trial court was entitled to take judicial notice of the applicable minimum wages in determining the issue of underpayments. 12. The Respondents also opposed the Appellant’s contention that the claims constituted unproved special damages, maintaining that employment claims relating to statutory underpayments and accrued labour rights are ascertainable from the applicable wage regulations and evidence adduced before the court. 13. On the award of compensation for unfair termination, the Respondents submitted that the same was properly awarded in view of the Appellant’s failure to comply with the law governing termination of employment. It was their contention that the trial court properly exercised its discretion under section 49 of the Employment Act after considering the circumstances of the case. 14. With regard to severance pay and gratuity, the Respondents submitted that although NSSF statements were produced, the Appellant failed to demonstrate full and consistent remittance of statutory deductions throughout the period of employment. The Respondents contended that the Appellant could not rely on section 35(6) of the Employment Act while at the same time failing to fully comply with its statutory obligations regarding remittance of NSSF contributions. 15. The Respondents further submitted that the trial court properly evaluated the evidence before it and correctly found that the Respondents were entitled to the awards granted. 16. The Respondents therefore urged the Court to find that the appeal lacks merit and to dismiss the same 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 when they were sent on unpaid leave following the closure of schools during the Covid-19 pandemic. That upon reopening of schools following the Covid-19 closure the Respondent engaged a private security firm. 3. The Appellant advanced varying and at times contradictory reasons for the separation with each of the Respondents. Whereas the 1st Respondent’s separation was attributed to effluxion of time upon expiry of contract, the 2nd and 3rd Respondents were at different times alleged to have been negligent, victims of force majeure and also rendered redundant following outsourcing of security services. The 4th Respondent was similarly described as a casual labourer affected by the Covid-19 pandemic and later redundancy. 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 employment of the Respondents was terminated. RW1 admitted in cross examination that no disciplinary proceedings were commenced against any of the Respondents despite allegations of negligence and loss of school property. She further admitted that the Labour Office was never involved in the alleged redundancy process of any of the Respondents. 6. To the extent that the Appellant alleged misconduct and negligence against the Respondents, the provisions of section 41 of the Employment Act required 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. No evidence was adduced to demonstrate compliance with these mandatory procedural safeguards. The allegations of negligence therefore remained mere excuses raised as an afterthought as there was no evidence that the terminations were on disciplinary grounds. 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. Even though 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. With regard to the 1st Respondent, the evidence shows that he was issued with a written three-year contract in 2018 but had been in the Appellant’s employment from 2012. While a fixed-term contract ordinarily terminates by effluxion of time, the circumstances surrounding this case reveal that all the Respondents were affected by the operational decisions taken by the Appellant following the outbreak of the Covid-19 pandemic. The 1st Respondent was sent on indefinite unpaid leave on 1st June, 2020 but was not recalled in September, when the school was reopened. The Appellant did not demonstrate that the decision not to renew the contract was independent of the restructuring and outsourcing of security services by the Appellant long before the 1st Respondent’s contract lapsed. 10. With respect to the 2nd and 3rd Respondents the Appellant failed to prove that they were declared redundant or terminated on grounds of misconduct as the Appellant did not comply with either the provisions of sections 40 relating to redundancy or sections 41 and 43 relating to termination on grounds of misconduct. The evidence as adduced in court show that they were unilaterally sent on compulsory unpaid leave following the outbreak of Covid-19 and the resultant closure of schools but were never recalled when schools were reopened in September, 2020. Their services were terminated on 5th March, 2021, allegedly for misconduct and without due process. 11. Regarding the 4th Respondent the averments of the Appellant that he was a casual employee are not supported by the evidence as he had worked for more that two years when together with the other Claimant’s, he was sent on unpaid compulsory leave on 1st June, 2020 when schools closed and was never recalled back to work when schools reopened in September, 2020 until his employment was terminated on 5th March, 2021. 12. The court further observed that the guarding services were not suspended during Covid-19 pandemic as the service is part of essential services that were still required during the pandemic. 13. 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 comply 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 as they had 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, but did not specifically address the factors taken into account before arriving at that decision as required by section 49(4) of the Act. This court has considered 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, and the 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 separation of the Respondents was 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 1st, 2nd and 3rd Respondents had been in the Appellant’s employment since 2012, while the 4th Respondent testified that he was employed in 2018. As employees in continuous service, they were entitled to annual leave under section 28 of the Employment Act or payment in lieu thereof where 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 and 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. The evidence of RW1 alludes to separation having been on grounds of misconduct, force majeure and redundancy, all at the same time. 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, which entitled the Respondents to severance pay. 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. The Appellant did not deny that the Respondents were underpaid. What was pleaded in paragraph 7 of Response to Memorandum of Claim is that “… the entire suit is statute barred …” the Appellant did not specifically prove that the prayer for underpayments was statute barred or adduce evidence to that extent. The only issue raised by the Appellant in the appeal was that the underpayments are statutorily barred. This issue having not been raised before the trial court and the Respondents having not had an opportunity to respond to the same, the Appellant cannot raise it on appeal. Parties are bound by their pleadings and cannot raise new issues on appeal. Be that as it may, the court is enjoined to take judicial notice of the statutory minimum wages by section 48 of the Labour Institutions Act as read with sections 3(6) and section 26(2) of the Employment Act which provide: *Section 48 : Labour Institutions Act* *Wages Order to constitute minimum terms of conditions of employment* *(1) Notwithstanding anything contained in this Act or any other written law—* *(a) the minimum rates of remuneration or conditions of employment established in a wages order constitute a term of employment of any employee to whom the wages order applies and may not be varied by agreement;* *(b) if the contract of an employee to whom a wages order applies provides for the payment of less remuneration than the statutory minimum remuneration, or does not provide for the conditions of employment prescribed in a wages regulation order or provides for less favourable conditions of employment, then the remuneration and conditions of employment established by the wages order shall be inserted in the contract in substitution for those terms.* *Section 3(6) and 26(2) Employment Act* *3(6) Subject to the provisions of this Act, the terms and conditions of employment set out in this Act shall constitute minimum terms and conditions of employment of an employee and any agreement to relinquish, vary or amend the terms herein set shall be null and void.* *26(2) Where the terms and conditions of a contract of service are regulated by any regulations, as agreed in any collective agreement or contract between the parties or enacted by any other written law, decreed by any judgment award or order of the Industrial Court are more favourable to an employee than the terms provided in this Part and Part VI, then such favourable terms and conditions of service shall apply.* 1. In addition, once the claim for underpayments was made by the Respondents, it was upon the Appellant as the employer of the Respondents to prove that it did not underpay the Respondents by producing records of such payments. This is the import of sections 10 and 74 of the Employment Act. the Appellant cannot shift that burden to the Respondents. 2. The Court further notes that indeed had the Respondents tabulated their dues in accordance with the Gazetted Statutory Minimum Wages applicable throughout the duration of their employment all the items in the judgment would have been pegged on the statutory minimum wages applicable, they would have been entitled to much higher terminal dues and compensation on all items which in this case were based on their last pay and which the court will not interfere with. 3. For the record, the basic minimum rate of pay for day and night watchman in 2021 was Kshs. 12,522.70 and Kshs. 14,038.00 respectively, excluding 15 percent house allowance. **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 upheld. 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**