https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1895

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** **ELRC APPEAL NO. E276 OF 2025** **WASHINGTON OBAE………….………………………...…...APPELLANT** **-VERSUS-** **MARVEL LIFESTYLE LIMITED………..…………….…. RESPONDENT** **(*Being an Appeal from the Judgment and Decree of Honourable Aziza Ojwang’(SRM) which was delivered on 23rd July, 2025 in Milimani MCELR Cause No. E1782 OF 2023)*** **JUDGMENT** 1. Through the Memorandum of Appeal dated 22nd August, 2025 the Appellant appeals against part of the judgment of Hon. Aziza Ojwang’ delivered on 23rd July,2025. The Appeal was based on three grounds but in summary the Appellant faults the trial court for not awarding him his earned but unpaid leave days. The Appellant prayed that the Appeal be allowed with costs and the Judgment and decree of the lower court be adjusted to allow the claim for leave days earned but not taken. 2. The Appeal was disposed of by written submissions. **APPELLANT’S SUBMISSIONS** 1. The Appellant’s Advocates Khavagali & Kadima Law Advocates filed written submissions dated 30th September, 2025. Counsel relied on the case of **Selle & Another V Associated Motor Boat Co. Ltd & Others (1968) EA 123** on the role of the first appellate court and further submitted that the Appeal was based on a single issue of whether the Appellant was entitled to payment in lieu of leave days earned but not taken. On this issue counsel submitted that when an employee asserts that they did not take out their leave days the burden shifts to the employer to prove otherwise through production of evidence. That the employer was the custodian of employment records as mandated by section 74(1)(f) of the Employment Act. 2. Counsel submitted that the Respondent admitted in its memorandum of response that the Appellant did not take leave in 2022 and 2023 hence was entitled to 42 days as leave in the two years which was not paid. That it was erroneous for the trial court to find that the Appellant did not prove that he did not take leave for 11 years and that the trial court should have awarded at least the two years which the Respondent admitted to. 3. Counsel relied on the case of **Thomas & Piron Grand Lacs Limited v Momanyi (Appeal E097 of 2023) (2024) KEELRC 2186 (KLR) (6 September, 2024) (Judgment)** on the burden being on the employer to prove that an employee took their leave. That the documents provided by the Respondent showed that the Appellant did not take his leave as required by the law. That the Respondent produced staff leave application forms for each year from 2012 to 2021. That a closer scrutiny of the leave application forms showed there were arrears in leave days which the trial court failed to take in to consideration. 4. Counsel submitted that there was a balance of 203 days from 2012 to 2021 and the 42 days for 2022 and 2023 making the total unpaid leave days to be 245 from the Respondents documents which days were more than what was pleaded by the Appellant 231 days. That the same having been arrived from the Respondent’s documents could not be doubted as the custodian of the said documents. That the Appellant was therefore entitled to Kshs 233,629.00/= being the payment in lieu of leave earned but not taken. **RESPONDENT’S SUBMISSIONS** 1. The Respondent’s Advocates, P.J Kakad & Company Advocates filed written submissions dated 6th February, 2026 and submitted that the Respondent produced the Staff leave application forms for the entire period of employment. That the last leave application form showed clearly that the Appellant had taken 25 days beyond the accrued leave days for the year. That the application for leave dated 23rd December, 2022 was duly approved by the Head of Department and also signed by the Appellant. That the Appellant did not controvert the form provided by the Respondent either orally or via evidence even though the matter proceeded by documentary evidence. 2. Counsel submitted that the trial court was bound by the evidence before it while relying on Section 107(1) of the Evidence Act on burden of proof which was on the Appellant. That there was no misdirection of fact or law and the basis of the material placed before it, the trial court exercised its discretion in judicious manner and the decision should be upheld. **DETERMINATION** 1. The court has considered the record of appeal, the submissions filed by the both parties herein as well as the authorities and proceeds to analyse them as follows. It is now settled law that the duty of the first appellate court is to re-evaluate the evidence in the subordinate court both on points of law and facts and come up with its own findings and conclusions as held in **Court of Appeal for East Africa in Peters –vs- Sunday Post Limited [1958] EA 424**.The appropriate standard of review established in cases of appeal can be stated in three complementary principles: ***i****.****First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;*** ***ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and*** ***iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.*** 1. In this case, the judgment of the trial court which gave rise to this appeal was that the trial court was not satisfied that the Appellant had proved on balance of probabilities that he had not taken his leave for 11 years. The Appellant aggrieved by this part of the judgment fronted three grounds of appeal which this court appreciates is a single-issue appeal as follows: - * 1. *Whether the trial court erred by finding that the Appellant had not proved that he had not taken his leave days for 11 years.*WHEHWWwWhetherWhetherWhe ***Whether the trial court erred by finding that the Appellant had not proved that he had not taken his leave days for 11 years.*** 1. On the claim for leave pay this court appreciates that it is continuing injury which the Claimant must a claim for within 12 months after cessation of employment as per section 90 of the Employment Act. This court notes that the employment relationship herein ended in March, 2023 and the claim was filed in September, 2023 which was within 12 months as required. Reliance is placed in this regard to among others the decision of the court of Appeal in **G4S Security Services (K) Limited v Joseph Kamau & 468 others [2018]** eKLR wherethe court held as follows:- *Regarding ‘a continuing injury’, the proviso to Section 90 of the Employment Act requires that the claim be made within 12 months next after the cessation thereof. The learned Judge did not determine when the continuing injury ceased, for purposes of computing the twelve month period. In the absence of a defined period, the learned Judge erred in concluding that the claims had no limitation of time. Further, upon the claimant’s dismissal, any claim based on a continuing injury ought to have been filed within one year failing which it was time barred.* 1. This court appreciates that leave is an entitlement for an employee under section 28 of the Employment Act. An employer must ensure the employee goes on leave when it becomes due. This is supported by case of **Rumba Mnyika Nguta v Southern Hills Development Agency Limited t/a Radio Kaya [2020] KEELRC 85 (KLR**) where the court held as follows:- *There is no provision in law, supporting forfeiture. Leave, when not taken, becomes an accrued benefit, which is monetized, and paid out, at the request or demand, of the Employee.* 1. This court takes the view that once the employee shows that he was entitled to leave which he did not take and was not paid for, the burden shifts to the employer to prove that indeed the employee went on leave. The Respondent as the custodian of the Employment records under section 74 of the Employment Act was bound to produce records showing the Appellant proceeded on leave for the 11 years. 2. This position was supported by this same court in the case of **Thomas & Piron Grand Lacs Limited v Momanyi (Appeal E097 of 2023)[2024] KEELRC 2186 (KLR) (6 September 2024) (Judgment)** where it was held as follows:- *On the issue of burden of proof once the Respondent alleged that she did not take her leave days as per the above case the burden shifted to the Appellant to adduce evidence that she indeed took her leave. The Appellant is the custodian of employment records as provided for under section 74 of the*[*Employment Act*](https://new.kenyalaw.org/akn/ke/act/2007/11)*and it ought to have produced evidence to the contrary without stating that the Respondent must have applied to court for the production of the documents.* *47.It was the Appellant’s burden to adduce evidence to dispute the Respondent’s allegations. The trial court did not therefore err in awarding the Respondent her unpaid leave days.* 1. The employment contract between the parties provided for 21 days leave each year at clause 3 and the year would run from January- December as per clause 5. Evidenced by the Leave application forms produced by the Respondent as the custodian of employment records this court finds as follows: -In 2012, 2019 and 2020 the Appellant took 5 days each and remained with 16 days of those years. In 2013 he took 6 days and remained with 15 days. In 2014 to 2017 and 2021 he took 1 day leave each and remained with 20 days for each of those years. In 2018 and 2022 he took 3 days leave each and remained with 18 days of those years. 2. As for the leave entitlement for 2023 since the Appellant was terminated in March, 2023 and the Employment Contract at clause 5.2 provided that in case of termination after two or three consecutive months of service the Appellant would be entitled to one- and three-quarter days for each completed month of service. Since the Appellant had worked for two months’ he would be entitled to two months *pro rata* leaveas provided which works to 3 days and a half of leaved day. 3. The total days would therefore be 202.5 days as unpaid leave. The last payslip of December, 2022 showed the Appellant’s gross salary was Kshs 20, 150/= and this is what this court will use for its calculations. The Appellant is therefore entitled to Kshs 194,303.5/= for the 202.5 days of leave earned but not paid. 4. This court therefore overturns the trial court findings that the Appellant did not prove that he was entitled to the unpaid leave and finds that he was entitled to the above amount. 5. **In the upshot the court sets aside the judgment of the trial court holding that the appellant did not prove on balance of probabilities that he had not taken his leave for 11 years and substitutes it with a finding that the appellant had proved that he was entitled to leave and hereby awards him as follows:** 1. **The prayer for unpaid leave is adjusted and allowed at Kshs 194,303.5/=** 6. **It is so ordered.** **Dated at Nairobi this 2nd day of July, 2026** **Delivered virtually this 2nd day of July, 2026** **Abuodha Nelson Jorum** **Presiding Judge-Appeals Division**