https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1595

Towfiq Kenya Limited v Onyambu (Appeal E226 of 2025) [2026] KEELRC 1595 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1595 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Appeal E226 of 2025 NJ Abuodha, J June 12, 2026 Between Towfiq Kenya Limited Appellant and Isaiah Mitanya Onyambu Respondent (Being an Appeal against the entire judgement of Honourable P. Olengo, Senior Principal Magistrate in Milimani Commercial Magistrate's Court, Employment and Labour Relations Division, MCELRC No. E746 of 2024 dated the 25th day of February 2025) Judgment 1.Through the Memorandum of Appeal dated 9th July 2025, the Appellant appeals against the whole of the Judgment of Hon. P. Olengo, Senior Principal Magistrate. 2.The Appeal was based on the grounds that:i.The Learned trial Magistrate erred in law and fact in finding that the Respondent's termination was unlawful and unfair.ii.The Learned trial Magistrate erred in law and fact by finding that the Respondent was entitled to the reliefs sought despite the overwhelming evidence of his misconduct and warnings against the said misconduct on several occasions.iii.The Learned trial Magistrate erred in law and fact by finding that the Respondent was not given a Notice before termination of his employment when the said notice was issued to him.iv.The Learned trial Magistrate erred in law and fact by finding that the Respondent was entitled to one month's pay in lieu of notice when the Respondent willingly absented himself from employment and without notice to the Appellant.v.The Learned trial Magistrate erred in law and fact by finding that the Respondent was entitled to unpaid leave days amounting to Kshs.38,815/-.vi.The Learned trial Magistrate erred in law and fact by finding that the Respondent was entitled to 6 months' salary as compensation for unfair termination.vii.The Learned trial Magistrate erred in law and fact by finding that the Respondent was entitled to house allowance amounting to Kshs.69,867/-. 3.The Appellant consequently prayed that the appeal be allowed with costs and the whole of the judgment in MCELRC E746 Honourable P. Olengo delivered on 25th February, 2025 be set aside. 4.The Appeal was disposed of by written submission Appellant’s Submissions 5.The Appellant’s Advocate, Ms. Anjiko submitted among others that for the termination of employment to pass the test of fairness, there must be both substantive justification and procedural fairness and relied on section 43 of the Employment Act and among others the cases of Evans Kamadi Misango v. Barclays Bank of Kenya [2015]eKLR and KRA v. Reuwel Waithaka Gitahi & 2 Others [2019]eKLR. Counsel further submitted that respondent worked for the appellant with a lot of difficulty as he was always absenting himself from his workplace without any permission. 6.According to counsel, the appellant was warned about his frequent absenteeism severally both verbally and in writing and subsequently issued with a termination letter when he failed to change. In this regard counsel cited the case of KRA v. Maginga Salim Murgani [2010] eKLR where the court noted that fairness of a hearing was not determined solely by its oral nature. It could be determined through exchange of letters and or email. Accordingly, counsel submitted that it was not once but a serries of verbal warnings issued to the respondent but he never heeded the same. In this regard counsel relied on the case of Thomas Dzombo Kirunga v. Krystalline Salt Ltd [2020] eKLR where the court held that where the appellant absented himself from work without explanation, the employer was entitled to terminate his service summarily. Counsel further submitted that on 6th March, 2024 there was theft in the appellant’s premises and the incident investigated by the police who recorded statements from staff including the respondent. The respondent claimed he was arrested and taken to the police station over the incident at 8 p.m. yet he did not produce OB report number or any evidence of such arrest and later release from the police station on cash bail. Further, the appellant’s working hours as stated during the trial was between 8:00 am- 4:00 p.m hence there was no way the respondent could have been arrested at the appellant’s premised at 8:00 pm. 7.On the issue of justification of reasons for termination of the respondent’s service, counsel finally submitted that the respondent was afforded opportunity to remedy his actions but failed to do so hence the appellant had showcased a reasonable cause for the respondent’s dismissal from service. 8.On the finding that the respondent was entitled to the reliefs sought, counsel submitted that the trail magistrate erred in this regard. On the issue of pay in lieu of notice, counsel submitted that the respondent was guilty of frequently leaving or absenting himself from the appellant’s premises without any cause or authority. Further, the respondent never gave any advance notice that he would be absenting himself from work thereby occasioning the appellant great inconvenience. In this regard counsel relied on the case of Daniel Mueke v. Bhogas A Autoworld [2014] eKLR. On the issue of maximum compensation for unfair termination, counsel submitted that the respondent’s employment was never terminated unlawfully and unfairly hence was not entitled to any compensation hence the award of 6 months’ salary as compensation constituted an unjust enrichment of the respondent and in this respect counsel relied on the case of Elizabeth Wakanyi Kibe v. Telkom Kenya Ltd [2014]eKLR. Regarding unpaid leave, counsel submitted that all employees who worked more than a year deserved leave based on the time spent in a given employment. According to Counsel, the respondent who had worked for more than a year, enjoyed leave as any other employee hence the trial magistrate erred in awarding leave pay. 9.Concerning the issue of house allowance, counsel submitted that the respondent was paid a consolidated salary of Kshs. 16,173/- which included housing allowance and, in this respect, relied on the cases of Postal Corporation of Kenya v. Andrew K. Tanui [2019] eKLR and Joseph Sani Orina v. Hiprora Business Solution (EA) [2017]eKLR where the courts stated that gross salary as opposes to basic pay usually included housing allowance and other allowances paid by the employer. Counsel further submitted that the respondent was paid in accordance with the prevailing Wages Order of 2018 where the gross salary was inclusive of housing allowance. Respondent’s Submissions 10.Counsel for the respondent Ms. Karuiki, submitted among others that in the trial court, the respondent’s case was that he was terminated on 7th March, 2024 and the appellant’s case on the other hand was that the respondent left work on 7th March, 2024 and never returned thereby absconding duty yet in the appellant’s list of documents was a letter dated 8th March, 2024 allegedly signed by the respondent. Counsel in this respect submitted that if as alleged the reason for termination arose on 7th March, 2024 and the termination followed on 8th March, 2024, the appellant failed to demonstrate when, if at all, the mandatory disciplinary process was conducted prior to the termination and in this regard relied on the case of Chege v. Unilever Kenya Ltd [2024] eKLR where the court stated that compliance with section 41 was not a suggestion but was mandatory. 11.According to Counsel, the trial court rightly acknowledged and questioned the contradiction in the appellant alleging abscondment on 7th March while at the same time relying on the signed termination letter by the respondent. Owing to the discrepancy, the trial court justifiably doubted the allegation that the respondent absconded duty and rightly finding that the respondent was unfairly terminated. 12.Regarding the granting of the reliefs by the trial court, counsel submitted that leave was rightfully awarded as the court rightfully noted that the appellant failed to produce employment records as required of it by virtue of section 74 of the Employment Act and with regard to notice pay, the trial court having found that the respondent was unfairly terminated and without notice, this was rightfully awarded. Concerning the award of 6 months’ salary as compensation for unfair termination, counsel submitted that the trial court having found that the respondent was unfairly terminated, this became inevitable by virtue of section 49 of the Employment Act and that under that provision, the trial court rightfully exercised its discretion in awarding six months’ salary as compensation for unfair termination. In this respect, counsel relied on the case of Kimathi v. Ericsson Kenya Ltd [2023] KECA 106(KLR) where the Court of Appeal stated that the appellate court ought not to interfere with the exercise of discretion unless it is satisfied that the trial judge misdirected himself in some matter and as a result arrived at a wrong decision or that it be manifest from the case that the judge was clearly wrong in the exercise of the discretion and occasioned injustice. Determination 13.The court has considered the grounds in the Memorandum of Appeal, the Record of Appeal and the submissions filed by the parties herein and authorities relied on and would as usual state that it is now settled law that the duty of the first appellate court is to re-evaluate the evidence in the subordinate court both on points of law and facts and come up with its own findings and conclusions as was held in the often-cited case of Selle vs Associated Motor Boat Company Limited [1968] E.A 123 where it was stated thus:-An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must 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 this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities……..or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”And further in the case of Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, where it was stated that:-“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” 14.The Judgment of the trial court was that the respondent’s claim was allowed and the trial court awarded him kshs. 16,173/- on account of salary in lieu of termination notice, Kshs. 38,815 on accrued but not taken, leave, Housing allowance of Kshs. 69,867/- and Kshs. 97,038/- on account of six months’ salary as compensation for unfair termination. 15.The appellant feeling aggrieved by the finding of the trial court, brought the present appeal against the entire judgment of the trial court and urged that the same be set aside in its entirety and be replaced with a judgment allowing the appeal and dismissing the respondent’s claim in its entirety and award the appellant the costs of the appeal. 16.As observed above concerning the role of this court as a first appellate court, its primary role is to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial court are to stand or not and give reasons either way. The Court as an appellate court is further reminded not to replace its own opinion of what could have been a better interpretation and ultimate finding on the facts before the trial court if those facts and evidence, align with reasonable conclusions over the issues in dispute and are supported by law. 17.The main issue in this appeal in the court’s view is whether the trial court erred in finding that the respondent was fairly terminated. That is. To say whether the appellant had justifiable course for terminating the respondent’s employment and if the process of his termination accorded with the laid down procedure as set in the Employment Act. The Court has carefully considered the judgement and finding of the trial court on these two issues and notes that in allowing the respondent’s claim and awarding the reliefs as contained in the judgment stated as follows: (at page 13 of the record of Appeal)“…on the 1st issue, the respondent claimed the claimant absconded duty on 7th March, 2024 not to be reached again. What is interesting is that the claimant termination is dated 8th March, 2024 and was signed by the claimant. Where did they get him to sign the letter? I don’t think it is true the claimant absconded duty…further if at all he absconded duty then the respondent should have made efforts to get his whereabouts. No evidence of call logs was produced or any other evidence to show the efforts the respondent made to get hold of the claimant…” 18.The court takes the view that the observations by the trial court was reasonable analysis of the evidence presented before it concerning the justification for terminating the respondent and the doubts cast were reasonable conclusions thereon. Concerning the procedure for termination, the trial court rightly observed that there was no show cause letter presented before it and evidence of trying to get hold of the respondent. Further, this court noted that the appellant contended that the respondent absconded duty on 7th March, 2024 never to be traced but again there was a termination letter dated 28th March, 204 signed by the respondent. Assuming this was correct, there was no evidence that the respondent was taken through any disciplinary process prior to the termination of his service as required by law. As rightly submitted by Counsel for the respondent citing the case of Chege v. Unilever Kenya Ltd [2024] eKLR, compliance with section 41 was not a suggestion but was mandatory. The appellant did not sufficiently demonstrate before the trial court that it complied with these mandatory provisions of the law hence the trial court did not err in reaching the conclusion it did. 19.Regarding the awards of the trial court, termination without or less notice is only acceptable in cases of summary dismissal. The trial court having found that there was no justification for terminating the respondent’s service and that there was no evidence of notice of termination or payment in lieu, this award was justified. Concerning housing allowance, the trial court noted that the appellant did not exhibit the contract of employment of respondent’s payslip to demonstrate that the salary paid to the respondent included the housing factor. Lastly the award of six months’ salary as compensation was reasonable in the circumstances and the court finds no reason to disturb the same. 20.In conclusion this court finds and holds that this appeal is without merit and hereby dismisses the same with costs. 21.It is so ordered. DATED AT NAIROBI THIS 12TH DAY OF JUNE 2026DELIVERED VIRTUALLY THIS 12TH DAY OF JUNE 2026ABUODHA NELSON JORUMPRESIDING JUDGE-APPEALS DIVISION