https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1938

 REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT KILIFI COUNTY COURT NAME: MALINDI ELRC CASE NUMBER: ELRCA/E031/2025 TWAWEZA KENYA APPAREL EPZ LIMITED VS LILLIAN LUSWETI JUDGMENT Introduction 1. This appeal arises from the judgment of the lower court delivered by Hon. R.M. Amwayi, Resident Magistrate, at Kaloleni on 31st October 2025, in Kaloleni MCELRC Cause No. 143 of 2024, in which the Respondent, Lillian Lusweti, sued the Appellant, Twaweza Kenya Apparel (EPZ) Limited, contending that at all material times she was its employee, whose employment the Appellant terminated on 31st May 2024 without valid reason and without according her a fair hearing, and seeking declaratory and compensatory relief. The learned trial Magistrate found in favour of the Respondent, though only in part, and entered an award accordingly. Aggrieved by that outcome, the Appellant has preferred this appeal. The Respondent's Case Before the Lower Court 1. It was the Respondent's case before the lower court that she was verbally engaged by the Appellant on 1st January 2016 as a General Helper in Quality Control at the Appellant's Mazeras industrial facility, initially at a wage of Kshs. 5,000 per month, later raised to a basic monthly salary of Kshs. 8,200. She relied on an electronic identification card/gate pass, No. 10386, issued to her by the Appellant on 1st January 2016, as evidence of the existence and duration of the employment relationship. 2. She testified that although she served the Appellant continuously for eight years and five months, she was never issued with a written contract of service, payslips, or proof of remittance of statutory deductions to the National Social Security Fund and the National Hospital Insurance Fund. She further stated that she was consistently underpaid, was never provided with house allowance or accommodation, and was never permitted to proceed on annual leave, nor paid in lieu of it. 1. She stated that she habitually worked excessive hours without overtime compensation, from 7:30 a.m. to 10:00 p.m. on weekdays, from 7:30 a.m. to 7:30 p.m. on Saturdays, and on two Sundays every month, and that she worked on public holidays, save for Christmas Day, Boxing Day and New Year's Day, without payment for the same. 2. On the circumstances of her termination, she testified that on 31st May 2024 she reported for duty at 7:30 a.m. as was her habit, but was informed that she could not sign in, as she was no longer the Appellant's employee. She stated that she was told she would be contacted, but never was, and that her subsequent efforts to access the Appellant's premises or otherwise establish her employment status were unsuccessful. 3. She maintained that her termination was both substantively and procedurally unfair, in that she was never furnished with a valid reason for it, was never issued with a notice to show cause, was never accorded a disciplinary hearing or an opportunity to defend herself, and was never issued with a notice of termination or of redundancy. She further stated that she had no disciplinary record throughout her tenure. She sought terminal dues comprising salary in lieu of notice, underpayments, unpaid overtime, unpaid rest days worked, unpaid leave days, unpaid public holidays worked, house allowance, compensation for unfair termination, service pay and severance pay, cumulatively totalling KShs. 2,316,016, together with a certificate of service, interest and costs. The Appellant's Case Before the Lower Court 1. The Appellant's sole witness, Christopher Njoroge Kinyanjui, its Human Resource Manager, testified that the Respondent was not engaged in 2016 as she claimed, but applied for employment on 15th August 2022 and was thereafter engaged as a General Worker under a succession of fixed-term contracts dated 15th August 2022, 16th September 2022, 3rd January 2023, 4th April 2023, 5th May 2023, 6th August 2023, 7th September 2023, 2nd January 2024 and 3rd April 2024. 2. He testified that the Respondent earned a monthly basic salary of Kshs. 8,200, together with a house allowance equivalent to 15% of the basic salary, which he stated was above the applicable statutory minimum wage. He denied that she was underpaid or that she had ever been denied house allowance, overtime, leave, rest days or public holiday pay, and stated that she had previously received a warning letter dated 25th May 2023 in respect of an earlier disciplinary infraction. 3. He further testified that the Respondent absented herself from duty without permission or explanation from 10th June 2024 to 13th July 2024, and that the Appellant attempted to reach her by text message on 12th, 21st and 22nd June 2024, without success. He stated that on 8th July 2024 the Appellant wrote to the County Labour Office reporting employees who had absconded duty, the Respondent's name being among them. 1. He testified that on 13th July 2024 the Appellant issued the Respondent with a notice to show cause, and by a further notice dated 16th July 2024, invited her to a disciplinary hearing scheduled for 23rd July 2024, informing her of the charge of unauthorised absence, the date, time and venue of the hearing, and her right to be accompanied. He stated that these communications were transmitted to the email address the Respondent had earlier provided. The hearing proceeded on the scheduled date before a panel comprising himself, Mary Msinda, Josphat Ndubi, and Caroline Mjeni, but the Respondent, despite being invited, did not attend. The panel recommended her dismissal, and on the same date she was issued a summary dismissal letter, which was transmitted to her by email. 2. The Appellant's position was that the Respondent was not unfairly terminated but was lawfully dismissed for absconding duty, a ground recognised for summary dismissal under Section 44(4)(a) of the Employment Act, 2007, after having been accorded an opportunity to be heard; that she had in any event been paid all sums lawfully due to her; and that a certificate of service dated 23rd July 2024 had been prepared and was available for her collection. The Judgment of the Lower Court 1. Upon considering the evidence and the submissions of the parties, the learned trial Magistrate found that the Respondent's employment commenced on 15th August 2022, and not on 1st January 2016 as she had claimed, this being borne out by the employment contracts produced by the Appellant. That finding has not been challenged in this appeal and is not in issue before this Court. 2. On the question of termination, the learned trial Magistrate found that the Appellant had failed to prove that the Respondent absconded duty, holding that the attendance records relied upon by the Appellant were inconsistent with, and did not support, that allegation, and that there was no evidence that the Respondent ever received the text messages the Appellant claimed to have sent her. The learned trial Magistrate accordingly found that the Respondent's termination was unlawful and unfair. 3. The learned trial Magistrate awarded the Respondent one month's salary in lieu of notice, being Kshs. 8,200, and six months' compensation for unfair termination, being Kshs. 49,200, a total award of Kshs. 57,400, together with the costs of the suit. The Respondent's other claims, for unpaid leave, overtime, house allowance, underpayments, public holiday and rest day pay, severance pay and service pay, were dismissed. The Appeal Before This Court 1. Aggrieved by the said judgment, the Appellant filed a Memorandum of Appeal dated 13th November 2025, impugning it on the following grounds: 2. The Learned Magistrate erred in law and in fact by misapprehending the Appellant's attendance records and thereby arriving at an erroneous finding that the Respondent was on personal leave on 26th June 2024 and non-paid leave from 27th to 31st June 2024 (sic). The court failed to appreciate that, as explained in evidence, the attendance sheets reflected carryover days from the preceding month, and that the Respondent's absence from 21st June 2024 onwards was clearly recorded through corresponding entries showing "A" for absence and subsequent blank days indicating non-attendance. The court's failure to correctly interpret this documentary evidence led to a wrong finding. 1. The Learned Magistrate erred in law and in fact by imposing on the Appellant an obligation to prove that the Respondent received the text messages sent to her, thereby applying a higher standard than required in law. 2. The Learned Magistrate erred in law and in fact by awarding the Respondent compensation for unfair termination, one month's salary in lieu of notice, and costs of the claim on the erroneous premise that the dismissal was unfair. The said awards were founded on a misdirection in law and a misapprehension of the evidence, given that the termination arose from proven absconding of duty, a lawful ground for summary dismissal under Section 44(4)(a) of the Employment Act. 3. The Appellant prayed that the appeal be allowed; that the judgment and decree in Kaloleni MCELRC Cause No. 143 of 2024 be set aside in its entirety; that this Court find and hold that the termination of the Respondent's employment was lawful and justified under Section 44(4)(a) of the Employment Act; that the awards made in the Respondent's favour be set aside; and that the Respondent's claim before the lower court be dismissed with costs. The Appellant's Submissions 1. Learned Counsel for the Appellant framed three issues for determination: whether the learned trial Magistrate misapprehended the evidence on absconding duty; whether the Court erred in finding the termination substantively and procedurally unfair; and whether the awards of notice pay, compensation and costs were justified. 2. On the first issue, it was submitted that the trial court misread the attendance records by failing to appreciate that each attendance sheet carried carryover entries from the preceding month, so that the entries relied upon by the trial court properly belonged to May, not June, 2024. Properly construed, it was submitted, the records showed the Respondent on annual leave on 28th May 2024, on non-paid leave from 29th to 31st May 2024, at work from 3rd to 7th June 2024, on annual leave again on 8th June 2024, on non- paid leave from 10th to 20th June 2024, and thereafter marked absent on 21st, 22nd and 24th June 2024, a sequence said to demonstrate abandonment of duty rather than authorised absence. It was further submitted that the Appellant's letter to the County Labour Officer dated 8th July 2024, indicating the Respondent's "1st abscond date" as 22nd June 2024, was consistent with, and not contradictory of, this reading of the attendance records, and that the trial court erred in treating the two documents as irreconcilable. 3. On the second issue, it was submitted that the trial court failed to reconcile the Respondent's pleaded date of termination, 31st May 2024, with documentary evidence showing that she worked into June 2024, and that this inconsistency alone undermined her claim. It was further submitted that there is no requirement in law that an employer prove actual receipt of a communication by an employee who has absconded duty, and that it suffices for the employer to show reasonable efforts to make contact, an obligation the Appellant said it had discharged through the text messages sent to the Respondent. On procedural fairness, it was submitted that the issuance of a notice to show cause on 13th July 2024, the holding of a disciplinary hearing on 23rd July 2024, and the issuance of a summary dismissal letter on the same date, each transmitted by email, satisfied the requirements of Section 41 of the Employment Act. 1. On the third issue, it was submitted that the awards of notice pay, compensation and costs were entirely dependent upon, and must fall together with, the finding of unfair termination, and that the trial court in any event failed to have regard to the Respondent's own contribution to her termination through her unexplained absence, a factor relevant under Section 49(4) of the Employment Act. The Appellant accordingly urged this Court to allow the appeal, set aside the judgment of the lower court, and dismiss the Respondent's claim with costs. The Respondent's Submissions 1. Learned Counsel for the Respondent opposed the appeal in its entirety, submitting that the learned trial Magistrate correctly evaluated the record and arrived at the right conclusion, and that even upon the Appellant's newly advanced interpretation of the attendance sheet, the outcome would be no different. 2. It was submitted that the Respondent consistently pleaded and testified that she was dismissed on 31st May 2024, and that there was no evidence of her own contradicting that account. It was further submitted that the Appellant's own explanation, that the Respondent was on non-paid leave from 29th to 31st May 2024, amounted to an admission that non-paid leave was, in the ordinary course, an authorised form of absence, and that the Appellant could not consistently treat a later period of non-paid leave, from 10th to 20th June 2024, as unauthorised absconding. It was pointed out, moreover, that the same attendance sheet recorded the Respondent as being on paid leave on 19th June 2024, an entry difficult to reconcile with the Appellant's simultaneous assertion that her whereabouts were then unknown. 3. It was further submitted that the attendance sheet was itself materially inconsistent with the Appellant's own payroll record for June 2024, in that the attendance sheet recorded one day of paid leave against two shown on the payroll, eight days of non-paid leave against 10.63 shown on the payroll, and three days of absence against 2.63 shown on the payroll, discrepancies said to render the attendance sheet an unreliable, after-the-fact document. It was submitted that the Appellant had, across its pleadings, its witness statement, its reconstructed reading of the attendance sheet, and its letter to the County Labour Officer, advanced at least three different dates for the commencement of the alleged absconding, namely 10th, 21st and 22nd June 2024, a material inconsistency going to the heart of the defence. It was also submitted that the Appellant had failed to produce the July 2024 attendance sheet, which would have shown whether the Respondent continued to be recorded as an employee through to the date of the disciplinary process, and had failed to explain its omission to remit the Respondent's statutory NSSF deduction for June 2024, notwithstanding its own admission that such deductions were otherwise consistently remitted, a further indicator that the employment had already ended by 31st May 2024. 1. On procedural fairness, it was submitted that the notice to show cause, sent on a Saturday and requiring a response within three days notwithstanding that the following day was a Sunday, was unreasonably short, and that the notice and the subsequent invitation to the disciplinary hearing themselves cited different, and mutually inconsistent, periods of alleged absence, none of which matched the dates pleaded in the Response to the Memorandum of Claim or stated in the Appellant's witness statement. It was further submitted that the Appellant's own submissions wrongly asserted that the Respondent attended the disciplinary hearing of 23rd July 2024, when the Appellant's own minutes of that hearing confirmed that she did not, a misstatement said to cast further doubt on the reliability of the Appellant's account. It was also submitted that the text messages relied upon by the Appellant did not disclose the telephone number to which they were sent, nor carry any delivery confirmation, and that there was no evidence that the Appellant had made any effort to reach the Respondent by telephone or through her next of kin, whose particulars it held. 2. On the reliefs granted, it was submitted that the award of notice pay was justified, the Respondent having been dismissed without notice; that the award of six months' compensation was properly made under Sections 49 and 50 of the Employment Act, having regard to the finding that the termination was unlawful and unfair, and that the plea of contributory conduct could not avail the Appellant, since the alleged absence it relied upon, even on its own case, arose after the date the Respondent maintained she had already been turned away; and that costs were properly awarded to the Respondent as the successful party. Learned Counsel accordingly urged that the appeal be dismissed with costs. Analysis and Determination 1. I have carefully considered the record of appeal, the judgment of the lower court, the grounds of appeal, and the respective submissions of the parties, and I am satisfied that this appeal turns on two principal issues: whether the learned trial Magistrate erred in finding that the Respondent's termination was substantively and procedurally unfair; and whether the reliefs of notice pay, compensation and costs awarded to her were justified. 2. As the first appellate court, this Court is enjoined to re-evaluate the evidence on record, both oral and documentary, afresh, and to draw its own conclusions of fact and law, while bearing in mind that it neither saw nor heard the witnesses testify and according due allowance for that disadvantage. This is the settled position enunciated in Selle v Associated Motor Boat Co Ltd [1968] EA 123, and it is the approach I have adopted in this appeal. 1. On the first ground, it was the Appellant's case at trial, and repeated in the Memorandum of Appeal and the resulting submissions, that the Respondent absconded duty. Sections 43 and 45 of the Employment Act, 2007 place the burden on an employer who terminates a contract of service to prove both the reason for the termination and that the reason was valid, fair, and justified. Absconding duty, being an unauthorised and unexplained absence from work, is a recognised ground for summary dismissal under Section 44(4)(a) of the Act, but it is not established by bare assertion; it must be proved on credible and consistent evidence. In this, I adopt the reasoning of this Court in Twaweza Kenya Apparel (EPZ) Limited v Hannah Matano Kombe, ELRC Appeal No. E003 of 2025, where a similarly incomplete and internally inconsistent evidentiary basis for an allegation of unauthorised absence was held not to discharge the employer's burden. 2. I have examined the attendance sheet upon which the Appellant's revised chronology is founded, together with the ground of appeal itself. It is notable that the chronology pleaded in the ground of appeal, that the Respondent was on personal leave on 26th June 2024 and non-paid leave thereafter, does not correspond with the chronology later advanced in the Appellant's own submissions, that she was on non-paid leave from 10th to 20th June 2024 and marked absent from 21st June 2024. A party that cannot maintain one consistent account of the very facts upon which its defence rests, even across its own filed documents, cannot expect a court to prefer that account over a competing one. 3. That inconsistency is compounded by others on the record. The Respondent has pointed to unrebutted discrepancies between the June 2024 attendance sheet and the June 2024 payroll, of the order of one to nearly three days across paid leave, non-paid leave, and absence, discrepancies the Appellant has not explained. The same attendance sheet records the Respondent as having been on paid leave, an inherently authorised and pre-sanctioned form of absence, on 19th June 2024, a date falling squarely within the period the Appellant elsewhere maintains her whereabouts were unknown to it. And across its pleadings, its witnesses’ evidence, its reconstructed reading of the attendance sheet, and its letter to the County Labour Officer of 8th July 2024, the Appellant has variously placed the commencement of the alleged absconding on 10th, 21st and 22nd June 2024. These are not trivial or immaterial variances; they go to the very core of the factual foundation upon which the defence of absconding duty rests. 4. I further note, as this Court observed in ELRC Appeal No. E003 of 2025, that where an employer withholds a document that would ordinarily have been the most direct evidence of a contested fact, an adverse inference may properly be drawn against it. Here, the Appellant did not place before the trial court the attendance sheet for July 2024, the very month in which the disciplinary process and dismissal are said to have taken place, and which would have shown whether the Respondent continued, in the Appellant's own records, to be treated as an absent employee through to that date. Its non-production, taken together with the Appellant's admitted failure to remit the Respondent's statutory NSSF deduction for June 2024, notwithstanding its concession that such remittances were otherwise consistently made, lends credible support to the Respondent's account that her employment had, in truth, already been brought to an end by 31st May 2024, and that the subsequent narrative of absconding was reconstructed after the fact. 1. For these reasons, I am not persuaded that the learned trial Magistrate erred in finding that the Appellant failed to discharge its burden under Sections 43 and 45 of the Employment Act of proving that the reason for the Respondent's termination was absconding duty, or that the reason, if any, was valid and fair. The first ground of appeal accordingly fails. 2. On the second ground, that the trial court erred in requiring proof that the Respondent actually received the text messages sent to her, I do not consider that the learned trial Magistrate imposed an unattainable or legally unsupported standard. It is well established, and this Court had occasion to say so in ELRC Appeal No. E003 of 2025, that where an employer relies on electronic communication, whether by short message service, multimedia message, email or similar means, to found service of a notice or to demonstrate reasonable efforts to reach an employee, the bare fact of transmission does not suffice; there must be credible evidence that the communication was in fact delivered to, and capable of being accessed by, the intended recipient. Such evidence may take the form of delivery reports, read receipts, or other objective indicators of successful transmission. Here, the messages relied upon by the Appellant did not even disclose the telephone number to which they were addressed, let alone carry any confirmation of delivery, and there is no evidence that the Appellant made any effort to reach the Respondent by telephone call or through her next of kin, whose contacts it held. In those circumstances, the learned trial Magistrate cannot be faulted for declining to treat the mere assertion of dispatch as proof that the Respondent was actually notified. 3. This finding is reinforced by the state of the procedural record. Section 41 of the Employment Act obliges an employer, before terminating a contract of service on account of misconduct, to notify the employee of the reason for which termination is being considered, in a language she understands, to hear and consider her representations, and to permit her to be accompanied. Having found, as I have hereinabove, that there was no proved service of the alleged show-cause letter and invitation to a disciplinary hearing, it is not difficult to conclude that the trial Court did not err in finding that the termination was unfair. 4. The third ground, concerning the awards of notice pay, compensation and costs, was expressly made contingent upon the success of the first two grounds. Those grounds having failed, the premise for disturbing the awards falls away. In any event, I am satisfied that the awards were properly made. Sections 35 and 36 of the Employment Act entitle an employee terminated without notice to payment in lieu, and since the Respondent was found, correctly in my view, to have been dismissed without a valid reason and without notice, the award of one month's salary in lieu of notice, Kshs. 8,200, was justified. 1. As to compensation, Section 49 of the Employment Act empowers a court, upon a finding of unfair termination, to award compensation not exceeding twelve months' wages, having regard to factors including the employee's length of service, the manner of termination, the extent to which the employee's own conduct contributed to the termination, and the employer's compliance with statutory procedure. The trial court's award of six months' gross salary, Kshs. 49,200, falls well within that statutory ceiling and cannot be said to be manifestly excessive. The Appellant's contention that the Respondent's own conduct, her unexplained absence, ought to have reduced that award cannot succeed; that submission presupposes the very fact of absconding which I have found was not proved. I find no basis upon which to disturb the award of compensation. 2. On costs, it is trite, and has long been the practice of our courts, that costs follow the event, save where good cause is shown for a different order: Hasham v Zenab [1960] EA 1. The Respondent succeeded before the trial court, having been compelled to litigate to secure the terminal dues that were her due, and no cause has been shown, nor do I find any, to depart from that ordinary rule, either in the lower court or in this appeal. 3. In the upshot, I find that the appeal herein lacks merit. It is hereby dismissed, with costs to the Respondent. Read, Signed and Delivered this 6th Day of July 2026. SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. MR. JUSTICE OCHARO KEBIRA** Malindi ELRC Employment and Labour Relations Court Date: 2026-07-07 08:36:17