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ELRCPartially AllowedNot stated on the face of the judgment (appeal from Mombasa CMELRC No. E076 of 2023)

Kisero v Wabwire (Appeal E190 of 2024) [2025] KEELRC 176 (KLR)

Employment and Labour Relations Court
30 January 2025
2,428 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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An employer cannot treat an absent employee as having quit; proper procedure must be followed, and old wage claims filed late in Kenya are time-barred.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Mombasa against the judgment of the trial magistrate in Mombasa CMELRC No. E076 of 2023, delivered on 16 August 2024, which found unfair termination and awarded the respondent, a night security guard employed from 2009 at Ksh.10,000 rising to Ksh.15,000 per month, notice pay, underpayments, leave pay, service pay and 12 months' compensation. The appellant contended that termination was never proved, the compensation was manifestly high, the underpayment awards were time-barred under Section 90 of the Employment Act, and leave pay was unjustified since leave was admittedly taken. The court, on its first-appeal mandate to re-evaluate the record, upheld the finding of unfair termination: the absence from work was with the employer's permission under Section 44(4)(a), and the employer failed to issue notice or follow due process under Sections 41, 43 and 45. However, exercising Section 45(5)(2) discretion on the employee's uncorroborated illness claim, compensation was reduced to 3 months' gross wage (Ksh.52,239.75). Following G4S and Kenya Railways on continuing injuries, the underpayment claims (October 2018 to September 2021) were held time-barred under Section 89, since the suit filed on 16 February 2023 exceeded 12 months from cessation, robbing the trial court of jurisdiction. The leave pay award was set aside on the admitted leave and the 18-month cap in section 28(4). Service pay of Ksh.22,712.93 was affirmed, the respondent's bid to enhance it in submissions failing as parties are bound by their pleadings. Trial court costs went to the respondent; each party bore its own costs of the appeal. Judgment varied accordingly.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether a termination of employment was proved and whether the finding of unfair termination by the trial court should stand
  2. 2.Whether the award of 12 months' compensation was manifestly excessive
  3. 3.Whether the awards for underpayments from 2018 to 2021 were time-barred under Section 89 (previously Section 90) of the Employment Act
  4. 4.Whether the award of leave pay was justified given the respondent's admitted leave
  5. 5.Whether the award of service pay should stand

Key legal issues

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01

Whether unfair termination of employment was proved

Holding

The finding of unfair termination by the trial court was upheld; the employer failed to follow due process when the employee did not resume duty after permitted leave.

Reasoning

The respondent's absence was with permission, permissible under Section 44(4)(a) of the Employment Act. The employer alleged the employee fell ill and abandoned work but took no steps to regularize the absence or issue notice. Sections 41, 43 and 45 of the Employment Act were not complied with, so the trial court's finding of unfair termination was correct.

p. 4
02

Quantum of compensation

Holding

The 12 months' compensation awarded by the trial court was reduced to 3 months' gross wage (Ksh.52,239.75) because the employee gave no medical evidence for his illness.

Reasoning

Under Section 45(5)(2) of the Employment Act the court must consider the employee's conduct before termination. The respondent did not produce any medical report for his alleged illness, though for 11 years of service the appellant filed no record of any prior misconduct. These considerations justified 3 months' gross wage.

p. 4
03

Time-bar on underpayment claims

Holding

The underpayment claims were time-barred; continuing injury claims must be filed within 12 months of cessation of the breach.

Reasoning

Employment terminated in October 2021 and the suit was filed on 16 February 2023. Applying G4S and Kenya Railways on continuing injuries and Section 89 of the Employment Act, the respondent had until September 2022 to claim underpayments. The trial court lacked jurisdiction over time-barred claims, so those awards fell away.

p. 5
04

Leave pay

Holding

The leave pay award was set aside as unjustified.

Reasoning

The respondent admitted his employment ended while he was on annual leave, so claiming pay in lieu was without merit; in any event section 28(4) of the Employment Act caps accrued leave at 18 months.

p. 5
05

Service pay

Holding

The service pay award of Ksh.22,712.93 was affirmed; the request to enhance it to Ksh.83,280.73 in submissions was rejected.

Reasoning

Service pay is due under Section 35(5) and (6) of the Employment Act where the employer fails to pay statutory dues, and the appellant submitted no evidence of compliance. The respondent pleaded Ksh.22,712.93; parties are bound by their pleadings and cannot amend on appeal or in submissions.

p. 5

Legal principles established

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  • An employee does not terminate his employment through absenteeism or abandonment; the employer must proactively address the absence through due process.
  • Where an employee fails to attend work, the employer must issue notice requiring the employee to account for his conduct before terminating employment.
  • Claims of continuing injury in employment must be filed within 12 months of cessation of the continuing wrong; time-barred claims deprive the trial court of jurisdiction.
  • Parties are bound by their pleadings; claims not pleaded cannot be introduced on appeal or in submissions.
  • On a first appeal, the court re-evaluates and re-assesses the record while making due allowance for not having seen or heard the witnesses.

Court orders

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  1. 1.Compensation Ksh.52,239.75 (reduced from 12 months to 3 months' gross wage)
  2. 2.Notice pay Ksh.17,141.25
  3. 3.Service pay Ksh.22,712.93
  4. 4.Costs of the trial court proceedings
  5. 5.For the appeal, each party is to bear its costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court (Employment and Labour Relations Court at Mombasa, CMELRC)
Mombasa CMELRC No. E076 of 2023
Jurisdiction invoked
First appeal from the magistrates' court in employment and labour relations matters (statutory first appellate jurisdiction of the ELRC)

Relief refused

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Underpayments from October 2018 to September 2021 and associated house allowance claims

Time-barred under Section 89 (previously Section 90) of the Employment Act; continuing injuries must be brought within 12 months of cessation, and the suit filed on 16 February 2023 was out of time

p. 5

Leave pay of Ksh.21,198.73

The respondent admitted taking annual leave, and section 28(4) caps accrued leave at 18 months

p. 5

Costs

Costs of the trial court proceedings to the respondent (his claim had a good foundation); for the appeal, each party is to bear its own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, the judgment in Mombasa CMELRC No.E076 of 2023 is hereby reviewed in the following terms; 1. Compensation Ksh.52, 239.75; 2. Notice pay Ksh.17, 141.25; 3. Service pay Ksh.22, 712.93; 4. Costs of the trial court proceedings; 5. For the appeal, each party is to bear its costs.
p. 6Final orders / disposition
The employee does not terminate his employment through absenteeism or abandonment of work. The employer must remain proactive and secure itself through the law.
p. 4Employer's duty on employee absenteeism
Time-barred claims denied the trial court jurisdiction to hear and make an award.
p. 5Limitation and jurisdiction
The time limit set to file claims arising out of ‘continuing injury is 12 months after the cessation.
p. 5Continuing injuries under Section 89 Employment Act
However, a party cannot amend pleadings upon appeal and in the written submission. Parties are bound by their pleadings
p. 5Parties bound by pleadings
the primary role of the court is to re-evaluate, re-assess and re-analyze the record and then determine whether the conclusions reached by the trial court are to stand or not
p. 3Duty of a first appellate court

Issues in the judgment

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minor

The names of the parties are not stated in the judgment; only the case reference Mombasa CMELRC No.E076 of 2023 and the appeal number of this ELRC matter are absent/unstated.

minor

Duplicate paragraph numbering: two paragraphs are both numbered 23.

minor

Arithmetic inconsistency in the compensation computation: the gross wage is stated as Ksh.17,141.25 but the awarded 3 months' compensation is computed as Ksh.17,141.25 x 3 = Ksh.52,239.75, which does not equal the stated product.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kisero v Wabwire (Appeal E190 of 2024) [2025] KEELRC 176 (KLR)", Case Analysis (2025). Not stated on the face of the judgment (appeal from Mombasa CMELRC No. E076 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/176/eng@2025-01-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.