https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1906

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI ELRC APPEAL NO. E056 OF 2020 MICHAEL MALOBA WAFULA……………………………………………………CLAIMANT -VS – MARSHALLS SECURITY GROUP LIMITED…………………………………RESPONDENT *(Being an Appeal from the* *Judgment and Decree of the Hon. D.W. Mburu (SPM) delivered on 29th May 2020 in Nairobi CMEL No. 649 of 2019)* Coram Before Lady Justice Jemimah Keli C/A Otieno JUDGMENT 1. The Appellant herein, being dissatisfied with the Judgment and Decree of the Hon. D.W. Mburu (SPM) delivered on 29th May 2020 in Nairobi CMEL No. 649 of 2019 between the parties filed a Memorandum of Appeal dated the 11th June 2022 seeking the following orders: - 2. The judgment delivered on the 29th May 2020 by Hon. Mburu be and is hereby set aside. 3. This Honourable Court proceeds to grant judgment in the following terms 4. Special damages * 1. One month’s pay in lieu of notice Kshs. 14,420.90 2. Leave not taken Kshs. 24,218.25 3. Leave travelling allowance Kshs. 850.00 4. Damages for wrongful dismissal Kshs.173,050.80 5. Overtime Kshs.274,665.60 6. Underpayment Kshs. 83,534.40 7. Unpaid public holidays Kshs. 50,020.00 8. House allowance Kshs. 60,567.78 9. Service Gratuity Kshs. 19,967.40 5. Interest on the total 6. Certificate of Service 7. Costs of the cause 8. Ay other and further relief this Honourable Court may deem fit and just to award under the circumstances. 9. In line with the prayers contained in the memorandum of claim dated the 13th day of December 2020. 10. Costs of the appeal and of the cause awarded to the Appellant. GROUNDS OF THE APPEAL 1. The Honourable Trial Magistrate erred in fact by failing to analyse the evidence on record and arrived at a wrong conclusion thereby dismissing the suit. 2. The Honourable Trial Magistrate erred in fact by holding that the claimant was still an employee of the respondent notwithstanding the fact that salary ceased to be paid three months of the date of filing suit. 3. The Honourable Trial Magistrate erred in fact and law by failing to address himself on special damages prayers merely because the prayer for unlawful termination had not succeeded. 4. The Honourable Trial Magistrate erred in law by tying the special damages prayers to the prayer of termination notwithstanding the fact that no employment records were availed to rebut the same. 5. The Honourable Trial Magistrate erred in fact by failing to consider evidence from the respondent to the effect that the claimant did not desert duty. 6. The Honourable Trial Magistrate erred in both law and fact by failing to take into consideration minimum wage orders in arriving at judgement not to award special damages. 7. The Honourable Trial Magistrate erred in law by failing to award the appellant his leave pay in complete disregard of Section 28 of the Employment Act cap 226 Laws of Kenya. 8. The Honourable Trial Magistrate erred in law by failing to award the appellant his underpayment in complete disregard to Section 48(1), (2) of the Labour Institutions Act 2007 and Section 18 of the Employment Act Cap 226 Laws of Kenya. 9. The Honourable Trial Magistrate erred in law by failing to award the appellant house allowance in complete disregard to Section 20 and 31 of the Employment Act Cap 226 Laws of Kenya. 10. The Honourable Trial Magistrate erred in law by failing to award the appellant for the public holidays that he worked in complete disregard to Section 10 & 74 of the Employment Act Cap 226 Laws of Kenya. 11. The Honourable Trial Magistrate erred in law by failing to award the claimant for the overtime that he had worked as claimed in complete disregard to Section 10, 18, 27and 74 of the Employment Act cap 226 and the minimum wages order 2017. 12. The Honourable Trial Magistrate erred in law by failing to award the claimant his service gratuity yet he was not registered to any pension scheme in complete disregard to Section 35(5) of the Employment Act Cap 226 Laws of Kenya. 13. The Honourable Trial Magistrate erred in law by failing to consider the claimant's submissions more particularly with regard to special damages. BACKGROUND TO THE APPEAL 1. The Claimant/Appellant filed a claim against the Respondent vide a memorandum of claim dated the 13th of December 2018 seeking the following orders: - 2. A declaration that the termination of the Claimant’s employment by the Respondent was unlawful, malicious, unprocedural, and an infringement of his Constitutional rights. 3. Maximum compensation for wrongful dismissal 4. Special damages * 1. One month’s pay in lieu of notice Kshs. 14,420.90 2. Leave not taken Kshs. 24,218.25 3. Leave travelling allowance Kshs. 850.00 4. Damages for wrongful dismissal Kshs.173,050.80 5. Overtime Kshs.274,665.60 6. Underpayment Kshs. 83,534.40 7. Unpaid public holidays Kshs. 50,020.00 8. House allowance Kshs. 60,567.78 9. Service Gratuity Kshs. 19,967.40 5. Interest on the total 6. Certificate of Service 7. Costs of the cause 8. Any other and further relief this Honourable Court may deem fit and just to award under the circumstances. (Pages 12-17 of Appellant’s ROA dated 23rd June 2022) 1. The Claimant/Appellant filed his list of witnesses dated 13th December 2018; witness statements dated 30th November 2018; and list of documents of dated 13th December 2018 with the bundle of documents attached (pages 19-33 of ROA). 2. The claim was opposed by the Respondent, who entered an appearance and filed a memorandum of response dated 16th July 2019 (pages 36-37 of ROA). They also filed a list of witnesses dated 16th July 2019, an undated witness statement of Antony Gachukia, an undated witness statement of Hosea Muli Nelson, and a list of documents dated 6th December 2019, with the bundle of documents attached (pages 38-46 of ROA). 3. The Claimant/Appellant’s case was heard on 17th December 2019 with the Claimant testifying. He was cross-examined by counsel for the Respondent. Mr. Odhiambo (pages 73-74 of ROA). 4. The Respondent’s case was heard on the same day with ones Hosea Muli Wilson and Antony Gachukia Mutuku testifying on behalf of the Respondent, as DW1 and DW2. They adopted their filed witness statements as their evidence in chief, and DW1 produced the Appellant’s documents as exhibits. Both witnesses were cross-examined by counsel for the Appellant/Respondent. Mr. Wetaba (pages 75-77 of ROA). 5. The trial magistrate’s court delivered a judgment on 29th May 2020, dismissing the Claimant/Appellant’s suit in its entirety (judgment at pages 79-85 of ROA). DETERMINATION 1. The appeal was canvassed through written submissions. The Appellant filed. The respondent did not enter an appearance in the appeal. Issues for determination 1. The petitioner submitted generally on all grounds of appeal. The court on perusal of the grounds of appeal and the relief sought, was of the considered opinion that the issues placed before the court for determination in the appeal were- 2. Whether the trial court erred in fact and law in finding there was no unfair termination. 3. Whether the appellant is entitled to orders sought. Whether the trial court erred in fact and law in finding there was no unfair termination 1. The grounds of appeal under the issue were – 2. The learned magistrate erred in fact by failing to analyse the evidence on record and arrived at a wrong conclusion thereby dismissing the suit; 3. The learned magistrate erred in fact by holding that the claimant was still an employee of the respondent notwithstanding the fact that salary ceased to be paid three months to the date of filing suit; 4. The learned magistrate erred in fact by failing to consider evidence from the respondent to the effect that the claimant did not desert duty; The appellant’s submissions 1. The appellant on the issue submitted as follows:- The respondents at page 54 and 55 of the record of appealed testified as follows:- The claimant is no longer our employee; His last working day was 12/9/2018; Michael deserted duty. An employee who deserts duty would be contacted. I have no documents to declare him a deserter.; The respondents witness Anthony was mentioned in the claimant's testimony where the claimant testifies; THAT when I went back I only got the secretary who told me she cannot attend to me. l called Mr. Anthony he told me that I rest for three days he will call me. I went back and found the operations manager and they told me that they will not take me back.;. The claimant gave the circumstances leading to the termination and he was effectively verbally terminated and how does the claimant present a verbal termination before the court; Was it relevant that the claimant was not paid salary after the termination and the claimants testifies at page 55 of the record of appeal; For September 2018, I was paid salary for 18 days.;. The number of days the claimant was paid is in tandem with the evidence he has offered before the court as to when termination was effected.;. At page 56 the witness testifies on whether they have been paying Maloba his salary and he says- We have not been paying him salary. There is no credible information that shows that there was an employment relationship between the appellant and respondent as at the time the case was filed. The court was in error to arrive at the finding that the claimant was still an employee of the respondent. The termination was definitely unfair and we say so for the following reasons being no substance in the termination and the fact that procedure was ignored. 2. The court in Mary Achieng Ouma & another v Salihihiya Company Ltd [2016] eKLR considered whether employment relationship can be terminated on assumption and they held; However, a contract of employment cannot be terminated through assumption. A party especially the employer must take a positive step and terminate a contract of employment. It may well be true that the accusations the claimants are facing are serious enough to warrant their summary dismissal but such dismissal cannot be assumed. The respondents must act and terminate the relationship. The Court of Appeal in Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR held: "There can be no doubt that the Act, which was enacted in 2007, places heavy legal obligations on employers in matters of summary dismissal for breach of employment contract and unfair termination involving breach of statutory law. The employer must prove the reasons for termination/dismissal (section 43); prove the reasons are valid and fair (section 45); prove that the grounds are justified (section 47 (5), amongst other provisions. A mandatory and elaborate process is then set up under section 41 requiring notification and hearing before termination." The court in Mary Chemweno Kiptui v Kenya Pipeline Company Limited [2014]eKLR; 32. The industrial Court has now built firm jurisprudence on circumstances within which the employer and employee relationship can be terminated or how the process of summary dismissal can be conducted so at to meet the strict provisions of the law and to avoid making the same invalid. This Court in the case of Kenya Union of Commercial Food and Allied Workers versus Meru North Farmers Sacco Limited Cause No. 74 of 2013 held that whatever reason or reasons that arise to cause an employer to terminate an employee, that employee must be taken through the mandatory process as outlined under section 41 of the Employment Act. These apply in a case for termination as well as in a case that warrant summary dismissal. Section 41 of the Employment Act is couched in mandatory terms. Where an employer fails to follow these mandatory provisions, whatever outcome of the process is bound to be unfair as the affected employee has not been accorded a hearing in the presence of their union representative or in the presence of a fellow employee of their own choice. The situation is dire where such an employee is terminated after such a flawed process without a hearing as such termination is ultimately unfair. The employee must be informed through a notice as to the charges and given a chance to submit a defence, followed by a hearing in due cognisance of the fair hearing principles as well as natural justice tenets. Invariably therefore, before an employer can exercise their right to terminate the contract of an employee, there must be valid reason or reasons that touch on grounds of misconduct, poor performance or physical incapacity. Once this is established the employee must be issued with a notice, given a chance to be heard and then a sanction decided by the respondent based on the representation made by the affected employee. It is now established best practice to allow for an appeal to such an employee within the internal disputes resolution mechanism and with due application of the provisions of section 5(7) (c) of the Employment Act. Where this procedure is followed an employer would have addressed the procedural requirements outlined under section 41 and any challenge that an employee may have would be with regard to substantive issues only. Summary dismissal on the other hand is largely at the instance of an employer. The standard applicable therefore are of a higher nature as this process is prone to abuse as the employer is in a more superior position than an employee, Summary dismissal can take place when an employer terminates the employment of an employee without notice or with less notice than that which the employee is entitled by any statutory provision or contractual term. However, even in cases of serious breach of a contract as under section 44(3) or on committing acts as outlined under section 44(4) of an employee being absent from work, being intoxicated, negligence, abusive, failure to obey lawful orders, criminal arrest or charges, suspect in a criminal case, all these serious acts, such an employee is subject to be treated as under section 41 of the Employment Act with regard to being accorded a hearing. In Walter Ogal Anuro v Teachers Service Commission [2013] eKLR Ndolo J. held that-"However, for a termination of employment to pass the fairness test, it must be shown that there was not only substantive justification for the termination but also procedural fairness-"The respondent did not bother to share with the claimant the complaint to enable the claimant appreciate where it was coming from. The court has also been told on the ambush that was laid on the claimant with regard to the hearing hence the claimant it is on record protested that he had not been given enough time. The protest can be found in the appeal he lodged in which he maintained his innocence and protested the lack of sufficient time to prepare. In Naima Khamis v Oxford University Press (EA) Limited [2017] eKLR, the Court of Appeal was authoritative that –‘On the first issue, that is whether the termination was lawful, we wish to take note of the provisions of Section 43(1) of the Employment Act, which provides that in any claim arising out of termination of a contract, the employer is required to justify the reason or reasons for the termination, and where the employer fails to do so, the termination is deemed to have been unfair. 3. Also Section 45(2)(c) requires a termination be done according to a fair procedure. From the foregoing, termination of employment may be substantively and/or procedurally unfair. A termination is also deemed substantively unfair where the employer fails to give valid reasons to support the termination. On the other hand, procedural unfairness arises where the employer fails to follow the laid down procedure as per contract, or fails to accord the employee an opportunity to be heard as by law required." In James Ondima Kabesa-V- Trojan International Limited [2017] eKLR Onyango, J. observed as follows;-"Under Section 41 of the Employment Act an employer is required to inform the employee in the presence of a fellow employee or a shop floor union representative of his choice, the reasons for which the employer contemplates to terminate the services of the employee. The employer is then supposed to hear the employee s representations and the representations of the person who has accompanied the employee to the disciplinary hearing. The employer is also expected to observe the rules of natural justice of giving the employee notice of the impending hearing and the grounds for the disciplinary hearing to enable the employee prepare to defend him." The aspect of preparation is integral in all legal proceedings and the element of ambush is discouraged but the respondent failed to afford the claimant misore time and even when he appealed the plea for more time was again ignored. The holding in Menginja Salimi Murgani vs Kenya Revenue Authority [2006] KLR thus-'It is clear too that the suspicions which led to the suspensions and termination of employment, were not set out in a document availed to the Plaintiff, so he could respond. For the most part, the Plaintiff did not share a forum with his accusers, so that differing views could be resolved through an informed process. I have considered the foregoing facts and come to the conclusion that they were not consistent with the requirements of a fair hearing," If indeed the claimant had committed an offence, then there is a procedure on is expected to adhere to. The defense for desertion is not available to the respondents since they did not carry themselves in a manner to suggest that the claimant had deserted employment given the evidence on record. The termination was unfair and we pray that the court reverses the findings by the court and proceeds to find in favour of the claimant and appellant herein and award as prayed in the memorandum of claim. The more fact that an employee was rightfully terminated does not deny them the right under the special damages and the court was in error I n tying the two together. We believe that the court was in error in finding that the claimant was still an employee and had not been terminated. Decision on issue no. 1 1. This being a first appellate court, it was held in Selle v Associated Motor Boat Co. [1968] EA 123 that:- “The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the 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 the 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 materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.” 2. Further in on principles for appeal decisions in Mbogo V Shah [1968] EA Page 93 De Lestang V.P (As He Then Was) Observed At Page 94: *“I think it is well settled that this court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.’’* 1. The submissions by the appellant on the law are relevant as they all emphasise that the termination of employment must satisfy both procedural and substantive fairness tests. In summary, the threshold for determining the fairness of employment termination is according to the provisions of section 45 (2) of the Employment Act, to wit:- ‘45(2) A termination of employment by an employer is unfair if the employer fails to prove— (a) that the reason for the termination is valid (b) that the reason for the termination is a fair reason— (i) related to the employees conduct, capacity or compatibility; or (ii) based on the operational requirements of the employer; and (c) that the employment was terminated in accordance with fair procedure.’’ To pass the fairness test the termination must pass the substantive (in terms of reasons) fairness and the procedural fairness under section 41 of the Employment Act (Walter Ogal Anuro v Teachers Service Commission[2013] eKLR). 1. The Appellant argued that the trial court erred in concluding he remained an employee of the Respondent, despite not receiving a salary for three months prior to filing the suit. In the claim, the Appellant stated he was employed from 1st June 2017 until 20th September 2018, when he was verbally dismissed. (page 12 of ROA). He also stated that on 13th September 2018, he was given off days, which he claimed had accumulated to eight days, and upon reporting back on 21st September 2018, he was informed that the leave was only five days, which led to a verbal dismissal. In his witness statement, the Appellant stated that on 13th September he was given off days, which he asserted amounted to eight days. Additionally, he said that on 15th September 2018, he was contacted by Mr. Antony via mobile phone to confirm the remaining leave days and was advised to return on time. He asserted that he reported back on the 21st September 2018 and was informed his off days were 5 and not 8 days and he had been replaced. That he called Mr. Antony who told him to rest for 3 days and he would call him. That he went back and found the operations manager who told him they will not take him back. (page 20 of ROA is the witness statement). 2. Conversely, the Respondent in memorandum of Response dated 16th July 2019 stated that the Claimant was still its employee and his employment had not been terminated. They agreed that he proceeded on an off day on 13th September 2018. That he had not reported back. They denied he was on 8 days off. That despite numerous calls the Appellant only went back to deliver the court pleadings (pages 36 – 37 of ROA). Mr. Antony swore statement and stated the Appellant proceeded on 4 off days as he was entitled to 1 off day per week on the 13th September 2018.That he tried to reach him in vain. He never also returned the uniform. (page 39 of ROA). The Respondent denied employment dated of 1st June and produced employment letter signed by the |Appellant on 13th June 2017. 3. During cross-examination, the Appellant told the court he was paid wages for 17 days in September 2018. He admitted he was entitled to 4 days off per month. He told the court on the 9th September 2018 he requested for 8 off days but had no evidence. That on 21st September 2018 he visited the office (page 74 of ROA. 4. RW1 was Hosea Muli Nelson. During cross-examination, he told the court that the claimant was no longer their employee and that he had not returned the uniform. On 13th September 2018, he proceeded on four days off duty and was expected back on 17th September 2018 but did not return. His last working day was 12th September 2018. He was paid for days worked and off days. Follow-up was done by the supervisor. The appellant had deserted duty but had no documents to support this. Mr. Antony (RW2) told the court on 15th September 2018 that he telephoned the claimant and reminded him to return to work on 17th September 2018. This was confirmed by the claimant in his statement. He denied adding three days to his leave. He had no proof of the subject of the conversation. RW2 also stated that the appellant did not report back on 17th September 2018 and was unreachable. He admitted that they did not send a warning letter to the post office number indicated in the application form and did not inform labour office. He confirmed that the appellant was still their employee (pages 75, 76, 77 of ROA). The judgment from the trial court held as follows:- “…However with the Claimant having failed to establish being terminated by the Respondent, court has no termination to consider how it was arrived at to make a determination in respect of”. 5. Absconding is a ground of summary dismissal under section 44 of the Employment Act. RW1 told the trial court that the Appellant was no longer in their employment having failed to return to work. Having re-evaluated the evidence, I find that the claim of the Appellant having had 8 days off was not true. The off days are 4 in a month so it is highly probable he was to report back on 17th September 2018 as stated by the Respondent. The court observed the Appellant had no claim for salary in September, which supported the position of the Respondent that he was to resume duty after 4 days off, but failed to. 6. Section 41 of the Employment Act envisages that the employer would take steps to bring an employment relationship to an end in the event of absconding. The Respondent admitted it had the post office number of Appellant but did not notify intention to terminate the employment on ground of absconding. Absconding is a ground of summary dismissal under section 44 of the Employment Act. The court has held that on failing to take steps to end the employment relationship, in event unfair termination claim, the same is found for non – compliance with section 41 of Employment. 7. The Respondent had a valid reason of absconding (section 44 of Employment) but failed in procedural fairness. The court awards notice pay of 1 month salary in lieu. Decision of trial court set aside. Whether the appellant is entitled to orders sought. 1. The appellant is seeking to be awarded the following by this Honourable court: 2. *The Judgement delivered on the 29th day of May 2020 by Hon. Mburu be and is hereby set aside.* 3. *This Honourable court proceeds to grant judgment in the following terms* 4. *Special damages* *i) One month pay in lieu of notice………………………….……………….**KSH 14,420.90* *ii) Leave Not Taken (26 days)……………………………….......................KSH 24,218.25* *(691.95 x 26)* *July- September 2018* *691.95 x3 x3* *iii) Leave Travelling Allowance………………………………………..............KSH 850* *iv) Damages for wrongful dismissal (14,420.90 by 12 months)……..KSH 173,050.80* *v) Over Time at 22 hours a week (74-52) for 16 months* *(22 x 64 x 130.05 x1.5)………………………………………………....KSH 274,665.60* *vi) Under payment……………………………………………………..….. KSH 83,534.40* *June 2017-September 2018* *(14,420.90-9200) x 16* *vii) Unpaid Public Holidays* *2017-10 days (10 x 12.50 x2x 130.05)……………………………...KSH 32,512.50* *2018-6days (6 x 130.05 x 2 x 12.50)…….…………………………..KSH 19,507.50* *viii) House Allowance 15% of 14420.90 x28……………………………...KSH 60,567.78* *ix) Service Gratuity 14420.90/26 x 18 x 1…………………………………..KSH 19,967.40* *d) Interest on the total.* *e) Certificate of Service.* *f) Costs of the Cause.* *g) Any other and further relief this Honourable Court may deem fit and just to award under the circumstances.* *h) In line with the prayers contained in the memorandum of claim dated 13th day of December 2020.* *i) Costs of the appeal and of the cause awarded to the appellant.* *6) TAKE NOTE that the appellant appoints the firm of WETABA, WERE & ASSOCIATE ADVOCATES, DEVELOPMENT HOUSE 2ND FLOOR ROOM 212 MOI AVENUE P.O BOX 7797-00100 NAIROBI as his advocate.* *7) TAKE FURTHER NOTE that the appellant shall accept service of all documents in the matter at the advocate's office stated above.”* 1. The trial court declined to consider the other reliefs due to finding no termination. The court then proceeds to assess the merit of the reliefs sought. Regarding compensation, the reason for termination was deemed valid. The court awards one month's notice pay for procedural fairness. 2. Concerning leave, the employer neither explicitly denied the leave claim nor provided evidence of having granted leave, which is a statutory right under section 28 of the Employment Act. The same is allowed as prayed. Kshs. 24,218.25. 3. Overtime – The RW1 told the court the court Appellant was working 6.00 a.m. to 6 p.m. 6 days a week. The Claimant sought overtime based on the regulation of wages orders which provide working hours of 52 hours per week. I find the claim of overtime is justified and uncontested as per RW1 and is granted as pleaded Kshs. 274,665.50. 4. On underpayment of wages, there was no specific denial or proof to the contrary. The same is awarded with modification of 3 months of full salary as pleaded thus Kshs. 67,871.700. 5. The claim of unpaid public holidays was not specifically pleaded or proved. The court did not belief that the Appellant was afforded off days and not public holidays. 6. Housing – This is a minimum statutory right under section 31 of the Employment Act. The same was due and is awarded as sought -KShs.60,561.78. CONCLUSION 1. The judgment and Decree of the Hon. D.W. Mburu (SPM) delivered on 29th May 2020 in Nairobi CMEL No. 649 of 2019 is set aside and substituted as follows- Judgment is entered for the claimant against the respondent to effect that the termination was unfair and as follows- 1. Notice pay of 1 months salary for unfair termination- Kshs. *14,420.90* 2. Payment in lieu of leave -Kshs. 24,218.25. 3. Overtime – Kshs. 274,665.50. 4. Salary underpayment - Kshs. 67,871.700. 5. Housing- KShs.60,561.78. 6. service pay - 14,420.90. 7. Service pay was due for 1 complete year served thus KShs.14,420.90. 8. Costs of interest at the court rate for the judgment date. 9. The respondent is to issue the claimant a Certificate of service under section 51 of the Employment Act. 10. The appellant is awarded costs in the appeal. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 3RD DAY OF JULY, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Appellant – absent Respondent – absent