https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1912

Twaweza Kenya Apparel [Epz] Ltd v Kombe (Appeal E003 of 2025) [2026] KEELRC 1912 (KLR) (24 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1912 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Malindi Appeal E003 of 2025 K Ocharo, J June 24, 2026 Between Twaweza Kenya Apparel [Epz] Ltd Appellant and Hannah Matano Kombe Respondent Judgment Introduction 1.The appeal herein arises from a judgment of the trial court in the above-mentioned suit, in which the Respondent sued the Appellant, contending that at all material times she was an employee of the Appellant, whose employment the Appellant terminated without substantive justification and without adhering to the dictates of procedural fairness, and seeking declaratory and compensatory relief against the Appellant. The learned trial Magistrate found for the Respondent, after hearing the parties on their respective cases. The Appellant’s Case before the lower court. 2.It was the Respondent’s case before the lower court that she first entered the Appellant’s employment on 1st May, 2002, and worked for the Appellant until 6th July, 2023, when her employment was unlawfully and procedurally terminated. 3.She asserted that her employment was not in any written form but oral. She was employed as a Mass Production Machinist at the Appellant’s Kaloleni premises. 4.She stated that on 6 July 2023, she reported for work at 7:30 am as usual and worked until p.m., when Mr. Chris, the Appellant’s Human Resources manager, instructed her not to report for work again, as her services were no longer needed. Her efforts to obtain information from him regarding the reason for her termination were unsuccessful. She was simply told to vacate the Appellant’s premises. 5.During her period of employment, she earned a basic salary of KShs. 8,000/=, which was below the minimum wage for a Mass Production Machinist, then provided under the relevant Wage Order. Further, she was not allowed to proceed for her annual leave at all. 6.She testified that the termination of her employment was not preceded by a termination notice, was without any valid and justifiable reason, and was procedurally unfair. 7.She further asserted that upon unlawfully terminating her services, the Appellant did not issue her with a certificate of service. Further, in the circumstances of the matter, she was entitled to one month’s salary in lieu of notice, gratuity, house allowance, compensation for unlawful termination, and unpaid leave days. The Appellant’s Case before the lower court. 8.The Appellant called one witness, Christopher Njoroge Kinyanjui, its Human Resources Manager, to give evidence on its behalf. The witness stated that following her application for employment dated 17th October 2022, the Appellant offered the Respondent employment as a general worker at its premises in Mazeras, Kilifi, on a one-month contract. The terms and conditions of service were set out in the agreement dated 17th October 2022. 9.The Respondent was then engaged as a Mass Production Machinist through several contracts dated 3rd January 2023, 4th April 2023, and 5th May 2023. 10.In her capacity as a General Worker, the Respondent received a monthly basic salary of Kshs. 8,200, complemented by a housing allowance equivalent to 15% of the basic salary. Subsequently, in her subsequent position, she was entitled to a monthly basic salary of KShs. 13,100, along with a housing allowance comprising 15% of the said basic salary. 11.It was asserted that the Respondent failed to report to work from 7th July 2023 to 14th July 2023 and up until termination, without permission from the Appellant and without informing the Appellant of the reason thereof. 12.Efforts to trace the whereabouts of the Respondent by sending text messages to her at the mobile phone number she had provided were unsuccessful. 13.The witness further stated that on 14th July 2023, the witness issued a notice to show cause why she could not be terminated, and an invitation to a disciplinary hearing. The notice set out the accusations against her and expressly stated her right of accompaniment. The show cause letter was forwarded to the email address she had provided on the form dated 23rd March 2022. 14.The disciplinary committee convened on the date that was set for hearing. The Respondent failed to attend the hearing despite the invitation. The disciplinary panel recommended the termination of her employment. Subsequently, the Respondent was issued with a termination letter dated 28th July 2023. The same was served through her email address. 15.The witness contended that the Respondent was not entitled to any of those reliefs he had sought. The Judgment of the lower Court. 16.After hearing the parties on their respective cases and considering their evidence, the learned trial Magistrate found that the termination of the Respondent’s employment was unfair, awarded her notice pay, compensation for unfair termination [three months’ gross salary], compensation for salary underpayments, compensation for unpaid house allowance, and directed that a certificate of service be issued to him. The Appeal Before this Court. 17.Aggrieved by the Judgment of the lower Court, the Appellant filed the appeal herein impugning it on the following grounds;a.The Learned Magistrate erred in fact in paragraphs 22 and 23 of the judgment by finding that the reason for the Respondent's termination, according to the Appellant, was desertion, while the case pleaded by the Appellant in paragraph 3 (h) was that the Respondent absconded work from 7/7/2023 — 14/7/2023.b.The Learned Magistrate erred in fact and in law in finding in paragraph 27 of the judgment that the Respondent's termination was unjustified because the Appellant failed to provide call logs to prove that they indeed contacted the Respondent to return to work, despite evidence that the Appellant sent the Respondent text messages on 8/7/2023 and 10/7/2023.c.The Learned Magistrate erred in fact and in law by failing to appreciate that the Appellant informed the County Labour Office of the Respondent's absconding of duty.d.The Learned Magistrate erred in fact and in law in finding in paragraph 28 of the judgment that the Appellant did not produce any evidence of any disciplinary process or notice prior to the Respondent's termination when in fact the Appellant's exhibits 9 - 13 are evidence of disciplinary procedure.e.The Learned Magistrate erred in fact and in law in finding in paragraph 29 of the judgment that the Respondent's termination was both substantively and procedurally unfair despite overwhelming evidence by the Appellant on the fairness of the termination.f.The Learned Magistrate erred in fact and in law in paragraph 32 of the judgment by unjustly awarding the Respondent one month's pay in lieu of notice.g.The Learned Magistrate erred in fact and in law in paragraph 37 of the judgment by unjustly awarding underpayments based on the monthly salary of Ksh.8, 000 pleaded by the Respondent despite the Appellant controverting the said pleading and producing evidence to prove that the Respondent was earning a monthly salary of Ksh.13, 100 plus 15% of Ksh.13, 100 as house allowance which was above the minimum wage.h.The Learned Magistrate erred in fact and in law in paragraph 38 of the judgment by unjustly awarding house allowance despite overwhelming evidence by the Appellant in employment contracts and payrolls showing that the Respondent was being paid house allowance of 15% of the basic salary.i.The Learned Magistrate erred in fact and in law in finding in paragraph 39 of the judgment that the Respondent did not prove payments of deductions made despite the Appellant producing evidence of remittance as Exhibit 14 and despite the Respondent's own evidence, Exhibit 2, showing that the Respondent's statutory dues were being remitted to the statutory body.j.The Learned Magistrate erred in fact and in law by awarding the Respondent damages for unlawful termination in paragraph 40 of the judgment despite evidence of fair termination of employment.k.The Learned Magistrate erred in law and in fact by ordering the Appellant to pay costs for the proceedings. Analysis and Determination 18.I have carefully considered the grounds of appeal, the material that was placed before the trial Court, and the submissions filed herein and hold that the appeal herein revolves around two principal issues;I.Whether the termination of the Respondent’s employment was fair, andII.Whether the Respondent was entitled to the reliefs granted by the trial Court. 19.The Appellant contended that the learned trial Magistrate made an error in both law and fact by concluding in her judgment that the termination of the Respondent’s employment was as a result of desertion of duty. Yet, the Appellant had specifically asserted that the termination was based on the Respondent's absconding from duty between 7th July 2023 and 14th July 2023. Absconding duty is a ground recognised under Section 44[4] of the Employment Act, for summary dismissal. The mischaracterisation of the Appellant’s case led the trial Court to reach an incorrect decision. 20.The Appellant relied on David Sironga Ole Tukai (2014) eKLR, where the Court of Appeal emphasised that Courts are bound to adjudicate disputes within pleaded matters. Thus;“The court, on its part, is itself bound by the pleadings of the parties. The duty of the court is to adjudicate upon the specific matters in dispute, which the parties themselves have raised by their pleadings. The court would be out of character were it to pronounce any claim or defence not made by the parties, as that would be plunging into the realm of speculation and might aggrieve the parties or, at any rate, one of them. A decision given on a claim or defence not pleaded amounts to a determination made without hearing the parties and leads to denial of justice." 21.No doubt, a mischaracterisation of a party’s claim or defence can lead to an unintended result prejudicial to that party. As argued by the Appellant’s Counsel, the Appellant’s case before the trial Court was that the Respondent absconded duty. Its case was not that the Respondent deserted duty. 22.There is a significant difference between absconding from duty and desertion of duty, although the terms are often used interchangeably in employment disputes. Confusing one for the other can materially affect the outcome of a judgment because they describe different degrees of employee misconduct and carry different evidential burdens. 23.Absconding duty generally refers to an employee’s unauthorised absence from work without permission or lawful justification. It describes a factual act of staying away from work. This absence may be for a short or prolonged period, but by itself it does not necessarily demonstrate that the employee has abandoned the employment relationship. 24.Desertion, on the other hand, is a more serious concept. It is not merely absence from work. It is unauthorised absence coupled with an intention not to return to employment. Thus, desertion has two essential elements: the employee is absent without authority; and the employee has manifested, expressly or by conduct, an intention to permanently abandon the contract of employment. It is the second element that distinguishes desertion from mere absconding. 25.Confusing the two concepts may lead a court into legal error in several respects. First, the court may improperly relieve the employer of its evidential burden. If mere absence is treated as desertion, the court may wrongly conclude that the employee terminated the employment relationship when there is no evidence of an intention to do so. 26.Having found as I have herein above, I now turn to consider whether the Appellant did prove that the Respondent absconded duty, and if so, whether the termination of the Respondent’s employment was in accord with the dictates of procedural fairness. 27.While the Appellant argued that the Respondent absconded on duty from July 2023 to July 14, 2023, they only presented an attendance sheet for two days, July 7 and 8, 2023, to the trial Court. Strangely, the Appellant did not clarify why there was no attendance record for the other days presented before the court, yet the Appellant knew or ought to have known that production of the same was critical, given that the alleged absconding was highly contentious. 28.In the absence of attendance sheets covering all the days when it is alleged that the Respondent absconded duty, days which were allegedly the subject of a show-cause letter and the decision to terminate the Respondent’s employment, it is inevitable to draw two conclusions. First, the ground for termination, namely absconding duty, was not proved to the requisite standard. Second, there is justification for drawing an adverse inference that, had the full attendance sheet been produced, a revelation prejudicial to the Appellant’s case could have been noted. 29.Having said this, it is not difficult to conclude that the Appellant did not discharge its legal burden under Section 43 of the Employment Act [proving the reason for the termination], Section 45 [that the reason was valid and fair], and Section 47[5] [that the termination was justified]. 30.That is not to say that I agree with the learned trial Magistrate’s basis for holding that the termination was unfair, having found, as I have hereinabove, that she made a legal error by confusing desertion with absconding. My conclusion is independent, taking into account the mandate of this Court as a first Appellate Court. 31.The Appellant’s Counsel argues that the learned trial Magistrate erred in concluding that the termination of the Respondent’s employment was procedurally unfair, despite evidence before her showing that a show cause letter was issued to her, that she was invited to a disciplinary hearing and failed to attend, and that a termination letter was issued to her. 32.Section 41 of the Employment Act, 2007, sets out a mandatory process that employers must follow when considering the termination of an employee; failure to adhere to this process renders the termination procedurally unfair. The process has three essential elements: the notification element, under which the employer must inform the employee of the intention to take disciplinary action against her and the grounds for that intention; the hearing element, under which the employer shall afford the employee an adequate opportunity to prepare and defend herself against the accusations, while accompanied by a colleague of her choice, or by a trade union representative, if she is a member of a trade union, where she has not waived her right of accompaniment. 33.This Court notes from the record that the Appellant claimed the show cause letter, which also served as an invitation to the disciplinary hearing, was delivered by email to an address provided by the Respondent when she joined the company. The Respondent firmly denied receiving any such email. 34.It is this Court’s view that where an employer asserts that a notice to show cause and termination letter were transmitted to an employee by email, but the employee unequivocally denies having received either communication, the burden rests squarely upon the employer to prove actual receipt. Mere proof that an email was dispatched is not enough, without more, proof that it reached the intended recipient. Service by electronic mail is only effective where there is credible evidence that the communication was successfully delivered to the employee’s designated email address and that the employee had reasonable opportunity to access it. In the absence of such proof, the court cannot proceed on the assumption that service was effected. 35.Such evidence may include server delivery reports, read receipts, acknowledgements by the employee, subsequent correspondence referring to the email, or other objective electronic records showing successful delivery. Bare assertions that the documents were emailed, unsupported by verifiable evidence of receipt, are insufficient to discharge the employer’s evidential burden. 36.The law does not presume service merely because an employer elected to use electronic communication. It is the fact of receipt, or at the very least reliable proof that the communication reached the employee through the electronic channel, that validates service. To hold otherwise would permit employers to defeat the right to a fair hearing through unverified claims of transmission, thereby undermining the statutory and constitutional guarantees of fair labour practices and procedural fairness. Where the employer fails to prove receipt, the court may conclude that the disciplinary process was procedurally defective, thereby rendering any ensuing termination procedurally unfair. 37.In the absence of proof of service of the show cause/invitation letter and termination letter, as was in the matter before the lower Court, I would have no reasonable basis to disturb the learned trial Magistrate’s holding on procedural fairness. 38.In sum, this Court upholds the learned trial Magistrate’s finding that the termination of the Respondent’s employment was both procedurally and substantively unfair, though from perspectives that differ from those she adopted in the matter. 39.The reliefs sought by the Respondent were in two categories, those that would definitely be said to be dependent on the claim for unfair termination, including compensation for unfair termination and notice pay, and those that were not, compensation for earned but unutilized leave days, compensation for unpaid house allowance, and compensation for salary underpayments. 40.In light of the finding above that the learned trial Magistrate did not err in holding that the termination of the Respondent’s employment was both procedurally and substantively unfair, and considering the basis on which she awarded compensation for unfair termination under section 49[1][c] and notice pay under section 35 of the Employment Act, I decline to disturb the award. 41.The Labour Institutions Act prohibits an employer from taking any action that could, in any manner, reduce the terms and conditions of employment as specified in the relevant Wage Orders from time to time. Employment contracts cannot supersede minimum terms and conditions so provided. 42.It was the Respondent’s case that, at all material times, the Appellant paid her less than the prescribed minimum wages and sought compensation. The learned trial Magistrate accepted her claim. In this appeal, the Appellant contends that the finding was erroneous, arising from the learned trial Magistrate’s failure to consider all the material placed before her. I have carefully considered the contents of the payroll document placed before the trial Court; it is clear that, in some of the highlighted months, the house allowance stated to have been paid is less than the alleged 15% of the basic pay. In my view, this renders the document not cogent evidence to prove the contested remuneration. 43.In my view, the learned trial Magistrate did not err in finding that the Respondent’s case that she was underpaid and not paid house allowance at all material times was not rebutted. 44.In the upshot, I find the Appellant’s appeal herein lacking in merit. It is hereby dismissed with costs. READ, SIGNED AND DELIVERED THIS 24TH DAY OF JUNE 2026.OCHARO KEBIRAJUDGE.