https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2247

Yejoka Garden Restaurant Limited v Ambuchi (Employment and Labour Relations Appeal E042 of 2024) [2026] KEELRC 2247 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KEELRC 2247 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Appeal E042 of 2024 DKN Marete, J July 31, 2026 Between Yejoka Garden Restaurant Limited Appellant and Eric Ambuchi Respondent Judgment 1.This matter was originated by way of a Memorandum of Appeal dated 27th February, 2024. It is an appeal from a judgment delivered on 20th April, 2023 in CMELRC No. E116 of 2022. 2.The Memorandum of Appeal sets out the following grounds:1.The Learned Magistrate erred in fact and in Law in failing to consider the Respondent's Submissions.2.The trial magistrate erred in law and fact in failing to hold that the Respondent had failed to prove his claim in terms of the dictates of section 107 of the Law of Evidence Act.3.The learned trial magistrate erred in law and fact in accepting the uncorroborated evidence of the Respondent to arrive at the impugned decision.4.The learned trial magistrate erred in law and fact in failing to take into account the Appellant's evidence that the Respondent had absconded duty thereby arriving at an erroneous decision that the Respondent had been unlawfully terminated.5.The learned trial magistrate erred in law and fact in making an award of damages in favour of the Respondent notwithstanding that the Claim had not been proved.The Appellant prays as follows;a)This Appeal be allowed with costs.b)The Judgment of the Honourable Principal Magistrate dated 20th March, 2023 be discharged and set aside with costs to the Appellant. 3.It is the Appellant’s case and submission that this being a first appeal, the duty of the court in re-evaluating the evidence on record is as pronounced in the authorities of Peters v Sunday Post Limited [1958] EA 424 and Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123. This is that the appellate court is under an obligation to reconsider and re-evaluate the evidence on record, draw its own independent conclusions on issues of fact and law, and arrive at its own decision, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify. 4.The Appellant contends that the trial judgment is internally inconsistent and therefore unsafe: having found at paragraph 24 that the Respondent absconded duty, the trial court ought to have applied the principle in Joseph Njoroge Kiama v Summer Ltd [2014] eKLR, that an employee who absconds duty cannot maintain a claim founded on unfair termination and the claim should accordingly have been dismissed. The Appellant further places reliance on Eastern Produce (K) Ltd v John Lumumba Mukosero [2008] eKLR for the proposition that the mere filing of a claim is not proof of the matters pleaded therein and that a claimant bears the burden of establishing each head of his claim by evidence. 5.The Respondent’s case and submission is that the Selle principle, properly applied, cuts against the Appellant: an appellate court that has not seen or heard the witnesses must be slow to disturb the trial court’s factual findings and those findings, properly read as a whole, support the award in his favour. The Respondent submits that the apparent inconsistency between the finding of absconding at paragraph 24 of the judgment and the subsequent award of damages is a drafting error confined to the declaratory order and does not infect the monetary awards, which are independently supported by the evidence and the admissions of the Appellant’s own witness. 6.The Respondent distinguishes Eastern Produce (supra) on the basis that it concerned the burden of proving unfair termination and not accrued statutory entitlements such as salary arrears, leave pay and house allowance, which the Respondent says he established by evidence.The issues for determination are:1.Whether the trial court erred in failing to consider the Appellant’s written submissions.2.Whether the trial court’s finding that the Respondent absconded duty and was fairly and lawfully dismissed is safe, and what consequences follow.3.Whether the monetary awards made by the trial court were justified on the evidence.4.What orders should issue, including as to costs. 7.In Peters v Sunday Post Limited [1958] EA 424 and Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, the duty of a first appellate court was stated as follows: the appellate court is under an obligation to reconsider and re-evaluate the evidence on record, draw its own independent conclusions on issues of fact and law, and arrive at its own decision, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify and should therefore not interfere with credibility findings unless they are plainly wrong. 8.The 1st issue for determination is whether the trial court failed to consider the Appellant’s written submissions. This ground is not borne out by the record. The trial court expressly records, at paragraph 11 of its Judgment, that the Appellant’s submissions were filed and considered. No specific passage of those submissions is identified by the Appellant as having been omitted from the trial court’s analysis. The ground therefore falls by the way side. It fails. 9.The 2nd issue for determination is whether the trial court’s finding that the Respondent absconded duty is safe and what consequences follow. The two witnesses gave materially different accounts of how the employment relationship ended. The Respondent’s evidence was that he was verbally told his services were no longer required. The Appellant’s evidence was that the Respondent stopped reporting for work without notice or explanation. Having heard both witnesses testify and be cross-examined, the trial court weighed these competing accounts and found, at paragraph 24 of its Judgment, that the Respondent had absconded duty. That is a credibility finding by a court that saw and heard the witnesses. This court having not had that advantage, would not ordinarily interfere with such a finding unless it is plainly wrong. On the evidence as recorded, the finding is not plainly wrong and is not disturbed. 10.There is, however, real substance in the narrower point that Ground 4 and Ground 5 also raise. That the trial court arrived at an award of compensation for unfair termination that is logically irreconcilable with its own finding that the Respondent absconded duty. If the Respondent absconded, as the trial court found, then the employment relationship ended by the Respondent’s own act and not by any act of the Appellant; and if that is so, there is no unlawful or unfair termination by the Appellant capable of grounding an award of compensation under Section 49(1)(c) of the Employment Act, 2007. An award of compensation for unfair termination proceeding from a finding of abscondment is self-contradictory. In Joseph Njoroge Kiama v Summer Ltd [2014] eKLR the court confirmed that an employee who absconds duty cannot maintain a claim for unfair termination. On independent re-evaluation, this court finds that the trial court’s award of compensation for unfair termination and the declaration that the dismissal was unlawful and unfair cannot stand alongside its finding of abscondment. Those elements of the judgment are set aside. 11.he 3rd issue for determination is whether the monetary awards made by the trial court were justified on the evidence. This court does not accept the Appellant’s submission that the monetary awards must all fall together with the compensation and the declaration. The awards for salary arrears for July and August, 2021 house allowance, public holidays worked, unpaid leave, and service pay do not depend upon a finding of unfair termination. They are independent statutory entitlements that arise from the existence of the employment relationship and its duration. The question is whether they are supported by the evidence irrespective of how the employment ended. RW1’s own testimony in cross-examination supports each of these awards. That no notice to show cause was issued, that no disciplinary hearing was held and that the Respondent was not paid his salary for July and August, 2021. The Respondent’s evidence of the period of service and the salary figure was not effectively challenged. On independent re-evaluation, each of these awards is supported by the evidence and is upheld. The reliance on Eastern Produce (K) Ltd v John Lumumba Mukosero (supra) for the proposition that the Respondent failed to prove these claims does not assist the Appellant as the authority concerns the burden of proving unfair termination, not the proof of specific, quantified, uncontroverted statutory entitlements such as salary arrears. 12.The court has also noted a second, related inconsistency not raised as a discrete ground of appeal but falling squarely within the scope of this court’s duty on first appeal. The trial court’s finding that the Respondent absconded duty means that the employment ended by the Respondent’s act. That in turn means that service pay, which accrues on termination of employment, is not payable, since the employment was not terminated by the Appellant within the meaning of Section 35(5) of the Employment Act, 2007. However, the Appellant has not appealed against the service pay award and has not raised any argument going to the legal basis for it. In those circumstances, this court does not disturb that award. An appellate court will not, save in exceptional circumstances, set aside a part of a judgment in a party’s favour where that party has not raised the point and the losing party has not grounded a specific appeal on it. The service pay award stands. 13.I am therefore inclined to partially allow the appeal and order relief as follows;i)A declaration be and is hereby issued that trial court’s declaration that the dismissal of the Respondent by the Appellant was unfair and unlawful is set aside.ii)The award of compensation for unfair termination of employment made by the trial court is also set aside.iii)The monetary awards made by the trial court in favour of the Respondent are upheld and affirmed as follows;i.Salary arrears for July & August, 2021…………..………..Kshs. 36,000.00ii.Unpaid house allowance………………………………..…Kshs. 86,400.00iii.Unpaid public holidays worked………………………….Kshs. 45,962.30iv.Unpaid leave…………………………………………..…..Kshs. 39,980.70v.Service pay for 2 years worked……………………..……..Kshs. 20,769.20Total of award………………………………………….Kshs. 229,112.20iv)The total sum of Kshs. 229,112.20 shall attract interest at court rates from 20th April, 2023 being the date of the trial court’s judgment until payment in full.v)The order of the trial court awarding the Respondent costs of the suit is set aside.vi)The Appellant is ordered to issue a certificate of service to the Respondent in accordance with the judgment of the trial court.vii)Each party shall bear their costs of this appeal. DELIVERED, DATED AND SIGNED THIS 31ST DAY OF JULY 2026.D. K. NJAGI MARETEJUDGEAppearances:1. Miss Abok instructed by Gitau & Kaburu Advocates LLP for the Appellant.2. Miss Achila instructed by Omongo, Gatune & Company Advocates for the Respondent.