https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2113

Waridi Limited-Fresh Catch Ltd v Atieno (Appeal E053 of 2025) [2026] KEELRC 2113 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEELRC 2113 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Machakos Appeal E053 of 2025 JW Keli, J July 17, 2026 Between Waridi Limited-Fresh Catch Limited Appellant and Otieno Doris Atieno Respondent (Being an Appeal from the Judgment and Decree of the Hon. M. Nanzushi (SPM) delivered on 9th October 2025 in Mavoko MCELRC Cause No. E206 of 2023) Judgment 1.The Appellant herein, being dissatisfied with the Judgment and Decree of the Hon. M. Nanzushi (SPM) delivered on 9th October 2025 in Mavoko MCELRC Cause No. E206 of 2023 between the parties filed a Memorandum of Appeal dated the 21st of October 2025 seeking the following orders: -a)The Appeal be allowed.b)The Judgment by the trial Magistrate delivered on 9th October 2025 and all consequential orders flowing therefrom be set aside.c)The respondent herein be condemned to bear costs incurred in the subordinate court.d)Cost of the Appeal be borne by the respondent; ande)Such further or other orders as this Honourable Court may deem just and expedient to grant. Grounds Of The Appeal 2.The Honourable Magistrate erred in law and in fact in failing to appreciate that the Respondent was working for gain within Machakos and not Mavoko and consequently, the Honourable Court lacked territorial jurisdiction to hear and determine the matter. 3.The Honourable Magistrate erred in law and in fact in failing to appreciate that Waridi Limited and Fresh Catch Limited are two distinct and separate companies and making a finding against Waridi Limited is an error in law and in fact, considering the Judgment did not clarify whether the Orders made are against the two companies singly, jointly or severally. 4.The Honourable Magistrate erred in law and in fact by misinterpreting and misapplying Legal Notice No. 2 of 2019 the Regulation of Wages (General) (Amendment) Order, 2019 by applying provisions relating to Mavoko municipality and not provisions of Machakos municipality where the Respondent was employed, and further misapplying the said provisions by treating the Appellants herein as general employment rather than employment by agricultural entities to perform agricultural activities. 5.The Honourable Magistrate erred in law and in fact by applying Legal Notice No. 2 of 2012 which was not in force at the alleged time of her employment, and which in any event does not govern the Appellant as an agricultural company. 6.The Honourable Magistrate abdicated her statutory duty in failing to address the substantial issues raised regarding pleadings by the parties thus causing a miscarriage of justice and reaching a wrong verdict. 7.The Honourable Magistrate erred in law and in fact in failing to evaluate, assess and analyze the evidence on record thus reaching the wrong decision. 8.The Honourable Magistrate erred in law and in fact by finding against the evidence on record. 9.The Honourable Magistrate erred in law and in fact by failing to consider the submissions by the Appellant. Background To The Appeal 10.The Respondent filed a suit against the Appellant vide a memorandum of claim dated 9th December 2023 seeking the following orders: -a.A declaration that the Claimant was unlawfully terminated from employment.b.One month’s pay in lieu of notice Kshs. 18,319.50/=c.Compensation for 12 months Kshs. 219,828/=d.Leave dues Kshs. 38,469/=e.Underpayment of wages Kshs. 464,732.85f.Underpayment of house allowance Kshs. 130,581.43g.Service pay Kshs. 27,478/=h.Certificate of serviceTotal Kshs. 899,407/ =(See the judgment at page 73 of ROA. The statement of claim was not placed in the record) 14.The Respondent filed a memorandum of response dated her list of witnesses dated 16th April 2025, witness statement of even date, and list of documents together with the bundle of documents attached, all of even date (pages 40-58 of ROA). 15.The claim was contested by the Appellant, who appeared and filed a response to the memorandum of claim dated 16th April 2025 (pages 51-54 of ROA). They also submitted a list and bundle of documents dated 16th February 2025, a list of witnesses dated 16th April 2025, and a witness statement of Janet Ndunge of the same date (pages 55-58 of ROA). 16.The Claimant/Respondent’s case was heard on 21st July 2025, with the Claimant giving evidence. She adopted her filed witness statement as her main evidence and presented her documents as exhibits. She was examined by counsel for the Appellant, Mr. Chepkoyo (pages 13-15 of Supplementary ROA dated 27th February 2026). 17.The Appellant’s case was heard on the same day, with Janet Ndunge testifying as DW1. She adopted her filed witness statement as her evidence in chief, and produced the Appellant’s documents as exhibits. She was examined by counsel for the Claimant/Respondent, Ms. Jepkemoi (pages 15-17 of Supplementary ROA dated 27th February 2026). 18.The Court entered Judgment on 9th October 2025 partially allowing the Respondent’s case to the tune of Kshs. 238,571.46, comprising one month’s pay in lieu of notice, 5 months’ salary as compensation for unfair termination, leave pay, and salary underpayments. It also ordered that the Claimant/Respondent be paid costs of the suit (judgment at pages 73-77 of ROA dated 1st November 2025). Determination 19.The appeal was canvassed by way of written submissions. Both parties complied. Issues For Determination 20.In their submissions dated 4th May 2026, the Appellant submitted on the grounds of appeal generally. 21.Conversely, the Respondent identified the following issues in her submissions dated 25th May 2026:i.Whether the trial court was vested with the territorial jurisdiction to hear and determine the suit.ii.Whether the trial court erred in law and fact in finding liability against Waridi Limited and/or Fresh Catch ltd.iii.Whether the trial court erred in upholding Section 37 of the Employment Act, 2007 and finding that the Respondent was not a Casual Employee.iv.Whether the trial magistrate misapplied the Legal Notices governing Minimum wages and whether the award of underpayment was proper in law.v.Whether the Learned Trial Magistrate failed to properly evaluate the evidence on record.vi.Whether the Appellant was entitled to the reliefs sought in the Statement of Claim. 22.The appellant submitted generally on the merits of the appeal. The court discerned the issues as identified by the respondent, captured all grounds of the appeal and adopted the same in the determination 23.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.” Whether the trial court was vested with the territorial jurisdiction to hear and determine the suit. 24.The ground of appeal was -The Honourable Magistrate erred in law and in fact in failing to appreciate that the Respondent was working for gain within Machakos and not Mavoko and consequently, the Honourable Court lacked territorial jurisdiction to hear and determine the matter. 25.It was not in dispute that the respondent worked in Athi River within Machakos County and instituted suit in Mavoko Law Courts. The appellant contended that the trial Magistrate had no territorial jurisdiction. The appellant submitted that the Learned Trial Magistrate erred both in law and in fact in failing to appreciate that the Respondent was working for gain within Machakos and not Mavoko, and consequently, the Honourable Court at Mavoko lacked the requisite territorial jurisdiction to hear and determine the claim. The appellant submitted that the centrality of jurisdiction in judicial proceedings cannot be overstated. To buttress its submissions the appellant relied on the decision in National Social Security Fund Board of Trustees vs. Kenya Tea Growers Association & 14 Others [2023] KECA 80 (KLR), by the Supreme Court which held that jurisdiction connotes the authority of a court to determine a dispute, and that such authority only exists where the court is properly constituted, the subject matter falls within its mandate, and the matter is initiated through due process. The Court further held that where any of these elements is absent, the proceedings, regardless of their merit, are rendered a nullity. 26.What is the law on territorial jurisdiction of the Magistrate Court? I was persuaded by the submissions of the respondent on the issue as follows- The law on territorial jurisdiction is as provided for under sections 11 to 15 of the Civil Procedure Act. Section 11 provides for court in which suit is to be instituted as follows:- “Every suit shall be instituted in the court of the lowest grade competent to try it, except that where there are more subordinate courts than one with jurisdiction in the same county competent to try it, a suit may, if the party instituting the suit or his advocate certifies that he believes that a point of law is involved or that any other good and sufficient reason exists, be instituted in anyone of such subordinate courts:” The court finds that Mavoko law Courts is within Machakos County just like Machakos Law courts thus both have jurisdiction over a dispute emanating from Athi River. The Justice O. Makau in the case of Ondego & 55 Others v Weihai International Economic Technical Cooperative Company Limited (Employment and Labour Relations Appeal E004 of 2023) [2024] KEELRC 1040 (KLR) (19 April 2024), observed: -"Section 14 and 15 of the Civil Procedure Act provides that territorial jurisdiction of a court is determined by the place where the cause of action arose, and where the defendant resides or carries out business or is employed. What section 14 of the Civil Procedure Act provides is that the claimant has the liberty to choose where to file a suit based on the said factors." I uphold my decision in Sambali v Butali Sugar Mills Limited & another [2023] KEELRC 1694 (KLR) where I held “ I further find that the parties are at liberty to apply and move the case within any of the courts within the county and in that regard I uphold the decision in Charles Ndungu Kahando v Clementine Nyawiara Kuria & another 2021 e KLR where the court held that it took judicial notice that both Nyahururu law courts and Nanyuki laws courts were located within the boundaries of Laikipia County and there were no directions by the High Court or the ELC on distribution of business between the two courts and hence the two courts had concurrent jurisdiction and a party may elect to file suit in either of the two courts for property situate within Laikipia county. In that case the Judge held the trial court erred in declining to entertain the appellant’s suit on account of territorial jurisdiction. I find the decision by Justice Nyakundi cited by the 1st Respondent is in agreement that the territorial jurisdiction of the magistrates is limited to the county boundaries. ” “In the upshot the court holds that the learned Magistrate erred in law in holding she lacked jurisdiction to handle the dispute within her territorial jurisdiction of Kakamega county as there was no pleading of limitation to right of access to justice by any of the parties. It is the opinion of the court the spirit of article 159 of the Constitution which provides of how judicial power is to be exercised is to allow parties to have their day in court unless the jurisdiction of the court is non- existent. The parties are properly at Kakamega magistrate court’s. The arguments of local limits at Butali hence held no much weight.” I hold that the trial court had territorial jurisdiction. Whether the trial court erred in finding liability against waridi limited and/or freshcatch? 27.The Appellant submitted that the Learned Trial Magistrate erred in both law and fact in failing to appreciate that Waridi Limited and Fresh Catch Limited are separate and distinct legal entities, and in erroneously treating them as one and the same for purposes of liability. The appellant had produced the C12 forms and submitted they unequivocally establish that Waridi Limited and Fresh Catch Limited are distinct legal persons, with different registration dates, separate nominal share capital and different majority shareholders. (at pages 37 to 38 of the record of appeal). Consequently, the two companies are not affiliates. The appellant submitted that the letters of appointment and renewal of contract clearly illustrate that the Respondent was employed by Fresh Catch Limited and not Waridi Limited(at pages 41 to 49 of the Record of Appeal). That the Learned Trial Magistrate therefore misdirected herself in attributing liability to Waridi Limited despite the documentary evidence expressly identifying Fresh Catch Limited as the employer. Additionally, the Respondent, during her testimony, unequivocally stated that she executed her contract of employment with Fresh Catch Limited and not Waridi Limited. (at page 5 of the Supplementary Record of Appeal) This evidence remained uncontroverted even upon re-examination, and the trial court failed to accord it due weight in its determination. In the circumstances, the Appellant submits that the Learned Trial Magistrate failed to consider the totality of the evidence placed before her, including both documentary and oral evidence, as well as the Appellant’s submissions, thereby arriving at an erroneous finding. 28.Conversely, the respondent submitted as follows on the issue- section 2 of the Employment Act, 2007 defines an: “Employer” to mean: “any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company In this case, My Lords and My Ladies, The Appellant’s attempts to distinguish Waridi Limited from Freshcatch is untenable both in law and fact, contrary to the evidence on record and an afterthought aimed at avoiding liability. The Work Injury proceedings that led to termination of the Claimant were: Machakos ELRC Misc. Application No. E045 of 2023: Doris Atieno v Waridi Limited. This shows that the Respondent, Doris Otieno, was engaged in employment whose operational management, supervision, and incident handling were all conducted under the authority of Waridi Limited. The Respondent herein stated during examination that she was employed by Waridi Ltd on 26th February, 2020 at her duty station at Athi River. She was initially paid by Waridi Ltd through I & M Bank as evidenced through the Bank Statements produced as Document No. 3 of the Claimant’s List & Bundle of Documents in the trial court. That the Appellant changed a year into her employment into Fresh Catch, pay slips issued and contracts executed in the name of Fresh Catch but she continued reporting to her same duty station in Athi River, working in the same capacity and earning the same salary and she worked daily and continuously at the same station until her termination on 14th October 2023. That in fact, the basis for her termination is her institution of work injury proceedings against Waridi Limited in Machakos ELRC Misc. Application No. E045 of 2023: Doris Atieno v Waridi Limited. Notably, the work injury occurred in 2023 during the subsistence of the Respondent’s engagement with Freshcatch. The injury proceedings were instituted against Waridi Limited, which nonetheless engaged with and settled the claim arising from the said injury. The foregoing raises a clear inconsistency with the Appellant’s attempt to maintain a strict legal separation between the two entities. It is difficult to reconcile how Waridi Limited could be held liable for, and settle, a work injury claim arising during an alleged engagement with Freshcatch, unless there existed an operational and functional relationship between the two entities. That this position, on its own, evidences a clear intermingling of operations, control, and employment records between Waridi Limited and Freshcatch thereby undermining the Appellant’s attempt to draw a rigid separation between the two entities with view to evade liability. Additionally, the law is clear that the Court is entitled to pierce through form and look at substance in determining the true employer. The Court is not bound by corporate labels where evidence shows operational unity. Nzioki wa Makau J. In the case of Nesser v Globology Limited & 7 others [2024] KEELRC 13551 (KLR) - Cause E033 of 2024 observed as follows: “The application by the 2nd to 8th Respondents is to the effect that they have been improperly joined in these proceedings and they therefore seek to have their names struck out from these proceedings. They assert that they are not the Claimant’s employer as defined under section 2 of the Employment Act. They posit that the employment contract is between the Claimant and the 1st Respondent and not themselves. They assert that it is therefore improper for the Claimant to seek reliefs against them in this case. The Employment Act at section 2 thereof defines an employer as follows: “employer” means any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company; [underline provided for emphasis] The Court discerns that the 2nd to 8th Respondents are covered in the definition of the section 2 of the Employment Act contrary to their assertions. As such, their efforts to be excused from the proceedings must of necessity, fail.” In the case of Ukwala Supermarket v Jaideep Shah & Kamal Shah [2022] eKLR, the court held that: - “The corporate persona of a company will be dispensed with in cases where it is apparent that the company is being used as ‘a creature, a device and a sham, a mask which one holds before his face in an attempt to avoid recognition by the eye of equity.” Further, in Ricatti Business College East Africa Ltd v Kyanzavi Farmers Company Ltd (Civil Appeal 325 of 2010) court held that: “The Court may lift the corporate veil in exercising its inherent jurisdiction to do justice and fairness for the ends of justice.” That taken holistically, the evidence on record leaves no room for the artificial distinction now advanced by the Appellant. The handling of the Respondent’s work injury claim and the subsequent application of the same as basis of termination, work station, employment history, payroll structure, all point to a single continuous and operationally integrated employment arrangement involving Waridi Limited and Freshcatch. The Appellant’s attempt to rely on the separate legal personality of the two entities is calculated to obscure the true employer-employee relationship with view to defeat liability, notwithstanding a clear operational integration system that employed, renumerated and ultimately terminated the Respondent, and which was itself called upon to answer to her work injury claim. The same also underscores the artificial and formalistic separation of juridical personalities, deployed to defeat substantive justice and offends the principle in: Basil & another v Safari Leisure Motels Ltd & 5 others (Environment & Land Case 229 of 2020) [2022] KEELC 13583 (KLR) (3 October 2022) (Ruling) that: - “Exceptions to the principles of corporate personality are made where it is too flagrantly opposed to justice or convenience.” Decision 29.The respondent filed a claim against Waridi Limited and Fresh Catch Limited. The appellant in response to the claim stated that the employer was Fresh Catch Limited and produced undisputed letters of employment to that effect. The CR12 for the companies were produced, and it was evident that Waridi Limited and Fresh Catch Limited were 2 distinct companies. RW1 was Janet Ndunge, who adopted her witness statement as evidence in chief as follows-‘The Respondent avers that 'Waridi Limited' and 'Fresh Catch Limited' are two distinct and separate limited liability companies incorporated under the laws of Kenya. That the Claimant was at all material times an employee of Fresh Catch Limited and not Waridi Limited, save to add that the Claimant was intermittently employed as a casual labourer of Fresh Catch Limited from March 2020 to December 2020, earning Kshs. 378 per day. The Claimant was later involved in an accident on 8th December 2020 while working for Fresh Catch Limited. After the accident, she took sick leave from January 2021 to April 2021, during which period Fresh Catch Limited continued to pay her full salary. Thereafter, the Claimant resumed work as a casual employee of Fresh Catch Limited from April 2021 to December 2021. She was later employed as a general labourer under contract earning Kshs. 8,546 plus housing allowance of Kshs. 1,282, which was subject to statutory deductions from 3/1/2022 to 20/9/2022.’(page 56 of ROA). RW1 produced the contracts as exhibit 1-6 (page 16 of the supplementary record of appeal). RW1 herself was an employee of Waridi Limited. The question to the court was whether Waridi Limited controlled the employment of the respondent. Why would Janet an employee of Waridi Limited testify on behalf of Fresh Catch Limited and on employment of the respondent? The court finds that the employment of the respondent was integrated and controlled by Waridi Limited. If that was not the position, Waridi Limited would not have defended the termination of the employment. The Court holds that the correct position would have been for the trial court to hold that the 2 companies were jointly and severally liable for the judgment, which I so hold. Issue 3: whether the trial court erred in upholding section 37 of the employment act, 2007 and finding that the respondent was not a casual employee? 30.The appellant led evidence that the respondent’s last contract expired on the 20th April 2023, and they did not renew, but thereafter engaged her as a casual worker from 24th April 2023 to October 2023. The definition of a casual worker under the Employment Act is as follows- "casual employee" means a person the terms of whose engagement provide for his payment at the end of each day and who is not engaged for a longer period than twenty-four hours at a time’ The Respondent was obviously engaged for more than 24 hours and indeed for more than 2 months continuously. The Court holds that the casual work converted to term contract under section 37 (3)of the Employment Act which states as follows- ‘An employee whose contract of service has been converted in accordance with subsection (1), and who works continuously for two months or more from the date of employment as a casual employee shall be entitled to such terms and conditions of service as he would have been entitled to under this Act had he not initially been employed as a casual employee.’’ The court holds that after the 2 months the respondent’s engagement converted to term contract. Whether the trial magistrate misapplied the legal notices governing minimum wages and whether the award of underpayment was justified? 31.The appellant submitted as follows- the Appellant is an agricultural company in the business of supplying fresh fish. Consequently, the honorable trial magistrate misapplied the law by relying on the General Statutory Wage requirement in reaching its decision instead of relying on the Regulation of Wages in the Agricultural industry. It is further submitted that the Learned Trial Magistrate compounded this error by failing to give reasons for the application of the Regulation of Wages (General) Order as opposed to the Regulation of Wages (Agricultural Industry) Order, despite clear evidence on record as to the nature of the Appellant’s business. The Learned Trial Magistrate did not demonstrate how or why the general wage order particularly one applicable to Mavoko Municipality and not Machakos was applied in awarding the Respondent alleged underpayments. In the absence of any evidentiary nexus placing the Respondent’s employment within Mavoko, and without any justification for departing from the applicable agricultural wage framework, the court’s finding on underpayment was not only unsupported but legally untenable. In any event, and without prejudice to the foregoing, we submit that the said Legal Notice No. 2 of 2022 was not in force at the time the cause of action arose. The Respondent was employed in or about March 2022, whereas the Legal Notice came into force in July 2022. It is a well-established principle that legislation, including subsidiary legislation, does not operate retrospectively unless expressly stated. The Learned Trial Magistrate therefore erred in law by not only applying the wrong legal notice but also one that was not operative at the material time. 32.Conversely, the respondent submitted as follows- The Appellant contends that the trial court misapplied the applicable Regulation of Wages Orders and failed to properly justify the award on underpayment. That the argument is misconceived. The law is settled that employment contracts cannot lawfully provide terms below the statutory minimum wage. Section 26(2) of the Employment Act , 2007 provides for the Basic minimum conditions of employment stating: “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.” In the case of Nganga v Christ the King Parish & another [2023] KECA 1100 (KLR), the Court of Appeal sitting in Nakuru pronounced that: “Even in a negotiation, the employee should be subjected to the minimum terms and it is only from those basic standards set by law that they can negotiate for better terms. The minimum wage is what the Government sets from time to time through amendments to the wages order. A contract of employment with wages and terms descending below the minimum standards is therefore unlawful.” J.W Keli Judge in the case of Wanyama v Malava Financial Services Association [2024] KEELRC 1014 (KLR) held that: Section 26(2) of the Employment Act recognizes the minimum wages order. The contract of employment unlike other contracts is subject to minimum terms of employment under the law, available regulations and or collective bargaining agreement. Kenya has ratified International Labour Organisation Convention 131 Minimum Wage Fixing Convention, 1970 (No. 131) which under Article 2 provides: - ‘’1.Minimum wages shall have the force of law and shall not be subject to abatement, and failure to apply them shall make the person or persons concerned liable to appropriate penal or other sanctions.’’ The Court can thus overrule unfair employment contracts under section 26(2) of the Employment Act and the ILO Convention 131. The employer is obliged to pay workers in compliance with the minimum wages prescribed under the wages order issued by the ministry in charge of labour from time to time.” In the present case, the evidence on record is not disputed: the Respondent earned Kshs. 9,018/- per month as shown in the pay slips filed and admitted on record, under Document No. 3 of the Claimant's List & Bundle dated 9th December, 2023. This figure was neither disputed in the Respondent’s Statement of Defence nor rebutted by any contrary evidence/ record adduced in court. The continuous employment from 26th February 2020 to 14th October, 2023 has been proved through the bank statements and Clearance forms filed under documents No. 4 and 2 respectively, of the Claimant’s List of Documents dated 9 th December, 2023. The applicable Wages Orders for the Respondent’s area and period of employment set the minimum wage for a general labourer at a figure far above what was paid, as correctly noted by the trial court. The Appellant did not demonstrate any lawful basis for paying below the statutory minimum and their suggestion that a different Wages Order ought to have been applied, amounts to an attempt to avoid statutory liability. The trial court therefore properly exercised its mandate in awarding underpayment, as the Respondent established a clear, continuous, and uncontroverted breach of the statutory minimum wage framework on the part of the Appellant herein, as held by Jemimah Keli, J. in the case of Protective Custody Limited v Mwangu [224] KEELRC 13613 (KLR) that: “The court holds that it may take judicial notice of statutory instruments like General Wages (Orders)Regulations under section 59 and 60 of the Evidence Act where there is a claim of underpayment even when the Orders not produced by the parties.” Accordingly, the ground of appeal on underpayment is without merit and ought to fail. Decision 33.The court finds there are 2 sub-issues to determine under the issue-a.Whether the appellant was in the agricultural sectorb.The applicable wages order 34.Whether the appellant was in the agricultural sector- The appellant submitted that it was engaged in the fish sector, while the respondent contended that she was a general labourer. In the affidavit of Jane Ndunge (RW1) at paragraph 5 she stated- ‘She was later employed as a general labourer under contract earning Kshs. 8,546 plus housing allowance of Kshs. 1,282, which was subject to statutory deductions from 3/1/2022 to 20/9/2022.’ Jane Ndunge did not state what sector the companies were under. As per the contract of 20th September 2022, the respondent was employed as a general labourer reporting to the construction manager/foreman. The court finds that construction cannot be equated to agriculture. The court finds no basis to fault the trial court in applying the general wages orders in the commercial sector. (Mbogo v Shah applied). The Applicable Wages Order 35.It was a ground of appeal that the Honourable Magistrate erred in law and in fact by applying Legal Notice No. 2 of 2012, which was not in force at the alleged time of the Respondent’s employment, and which, in any event, does not govern the Appellant as an agricultural company. In the judgment the trial court did refer to wages order of 2012 but did not apply it. That was in error correctable under slip rule. The appellant in submissions stated that the reliance on the Wages Order of 2022 was wrong as it was effective from July 2022. The trial court awarded underpayment as follows-‘ Underpayment of wages 12,522.70 (as per legal notice No.2 of 2018) - 10,371 = 2,151.70 X 24 = 51,784.80/= 14,025.40 (as per legal notice No.2 of 2022) - 10,371= 3,654.40 X 21 = 76,742.40. The court perused the 2022 General Wages Order and found it came into effect in May 2022. I upheld my decision in Protective Custody Limited v Mwangu [224] KEELRC 13613 (KLR)(supra) The appellant stated the respondent was engaged in March 2022. I find that the Wages Order of 2022 was only applicable from 1st May 2022 and the court erred in applying the same for the entire year. The court further holds that Athi River was not under Mavoko Municipality, as admitted by the respondent, thus the Wages Order applicable was under all other areas. The minimum wage for all other arears at that time was Kshs. 8,109.09. Taking into account the wages paid as per the decision, it was obvious to the court that the award for underpayment was wrongful. The wages were within the Wages Orders in place. The underpayment award is set aside. Whether the Appellant was entitled to the reliefs sought in the Statement of Claim. 36.The court, having held the employment was a term contract, the reason for termination based on the respondent being casual and work having ended would not hold. Under section 37(3) of the Employment Act –‘An employee whose contract of service has been converted in accordance with subsection (1), and who works continuously for two months or more from the date of employment as a casual employee shall be entitled to such terms and conditions of service as he would have been entitled to under this Act had he not initially been employed as a casual employee.’ The respondent was entitled to procedural fairness in the termination. The threshold for determination of fairness of termination of employment 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 under section 43 ) fairness and the procedural fairness under section 41 of the Employment Act. 37.On finding unfair termination, the court’s only other duty is to consider remedies under section 49 of the Employment Act. The appellant did not contribute to the termination, had worked for the respondents since March 2020 to October 2023. (section 49(4) of the Act) The trial court, having evaluated the case awarded as follows-a.The trial court awarded One month's pay in lieu of notice-Kshs 14,025.40/= (as per Legal Notice No.2 of 2012). The court found it was in error to cite the order of 2012. The correct order was of 2022. The last salary was Kshs. 10,371. The appellants were within other arrears, thus the wages paid within minimum salary, and housing for general labourer. The award for notice pay is set aside and awarded for Ksh. 10,371.b.Compensation for unlawful termination. The respondent urged the court to award him 12 months' pay compensation for unlawful and unfair termination of employment. The trial court awarded 5 months' pay for compensation for the sum of Kshs 70,127/= The court upholds the compensation which it finds was within the parameters of section 49(4) of the Employment Act, with the respondent having been employed in 2020 and dismissed in 2023, and without procedural fairness or a valid reason. I only tamper with the decision of the trial court on applicable wages being last salary Kshs 10,371 x 5 thus Kshs 51,855.c.Underpayment of wages 12,522.70 (as per legal notice No.2 of 2018) - 10,371 = 2,151.70 X 24 = 51,784.80/= 14,025.40 (as per legal notice No.2 of 2022) - 10,371= 3,654.40 X 21 = 76,742.40/= . The court on appeal held the paid salary was within other arears minimum wages for general labourer. The award for underpayment is set aside.d.Leave days - the trial court held that - This is a special damage. The leave is due annually the employee. There is no evidence from the appellant that leave was paid. It was awarded for KES 27,349.56/= . I find no basis to tamper with the decision of the trial court. Conclusion 38.The appeal is allowed in part. The Judgment and Decree of the Hon. M. Nanzushi (SPM) delivered on 9th October 2025 in Mavoko MCELRC Cause No. E206 of 2023 is set aside and substituted as follows-Judgment is entered for the claimant against the respondents jointly and severally as follows-a.Notice pay in lieu of Kshs. 10,371.b.Compensation equivalent of 5 months' salary Kshs 10371 x 5 thus Kshs 51,855c.Leave in lieu -Kshs. 27,349.56.d.costs of suit 39.The appellant is awarded ½ costs in the appeal 40.It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 17TH DAY OF JULY, 2026.JEMIMAH KELI,JUDGE.In the presence of:Court Assistant: OtienoAppellant – Jematia h/b AwuorRespondent – Ms Chumo h/b Kirwa