Omar t/a Meat Magic Enterprises v Kalu (Appeal E088 of 2024) [2025] KEELRC 325 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent discharged his burden of proof
- 2.Whether there was unfair termination of employment
- 3.Whether the award of Ksh.564,141 was justified
- 4.Whether the appeal has merit
Key legal issues
#Burden of proof in unfair termination and effect of lay-off/abandonment
Though lay-off for reduced work is a justified ground under Section 40, the employer must notify the employee of the reasons; an alleged abandoning employee must still be traced through due process and given notice, failing which termination is unfair.
The employer claimed the respondent deserted duty after being sent home due to COVID-reduced work. The court held that even where an employee abandons employment (gross misconduct under Section 44), the employer bears the burden of initiating the process: contacting the employee via the addresses under Section 10(3), issuing notice of termination to the last known address with a copy to the Labour Officer under Section 18(5)(b). Failure to do so left the termination procedurally unfair and the respondent entitled to notice pay and compensation.
Validity of a global award of terminal dues
The trial court's global award of Ksh.564,141 was improper; each head of claim must be assessed separately, resulting in varied specific awards totalling Ksh.194,167 plus costs.
Relying on the Supreme Court's decision in Kenya Ports Authority v Munyao, the court held that remedies under Section 49 of the Employment Act should not be conflated and each claim has a legal underpinning requiring a specific award. The court recalculated compensation at 5 months' gross salary (Ksh.125,000), notice pay (Ksh.25,000), 18 months' leave accumulation (Ksh.27,500), and public holidays worked (Ksh.16,667), while rejecting severance, service pay, house allowance and underpayment claims.
Legal principles established
#- An employer alleging abandonment of employment must bring closure to the employment relationship through due process, including notice to the last known address and a report to the Labour Officer; leaving the employee at large works to the employer's detriment.
- A global award does not suffice in an employment claim; each claim must be addressed on its merits with a specific award allocated.
- Leave accumulates only up to 18 months under Section 28(4) of the Employment Act.
Court orders
#- 1.Employment terminated unfairly
- 2.Compensation Ksh.125,000
- 3.Notice pay Ksh.25,000
- 4.Leave pay Ksh.27,500
- 5.Public holidays Ksh.16,667
- 6.Costs for the trial court as awarded
- 7.For the appeal, each party bears its costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Mombasa (ELRC)
- Mombasa CMELRC E132 of 2020
- Jurisdiction invoked
- First appellate jurisdiction of the Employment and Labour Relations Court over a judgment of the magistrates' court (CMELRC E132 of 2020)
Relief refused
#Severance pay
Does not accrue on a finding of unfair termination
Service pay
NSSF and NHIF statutory payments were remitted
House allowance and underpayments
No employment contract; wage paid exceeded minimum wage; claim also time-barred as continuing injuries
Setting aside of the trial judgment in its entirety (appeal wholly allowed)
Court found unfair termination and maintained most awards, varying only the computation
Costs
Costs for the trial court as awarded; for the appeal, each party bears its costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The employer must bring closure to the employment relationship as held Thoya v Delfy Security Limited [2023] KEELRC 2691 (KLR)
Without proof of the written reasons leading to loss of employment, whether by abandoning work or lay ofi due to reduced work, such resulted in unfair termination of employment.
A general or general award does not sufice in an employment claim as held by the Supreme Court in the case of Kenya Ports Authority v Munyao & 4 others [2023] KESC 112 (KLR)
All continuing injuries must be addressed within 12 months from the cessation of such injury, wrong or damage.
Accordingly, the judgment in Mombasa MCELRC E132 of 2020 is hereby reviewed with the following awards;
Issues in the judgment
#The award figure is inconsistently stated within the judgment
The respondent's employment period is inconsistently stated
The respondent's monthly wage is inconsistently stated (Ksh.16,500 at filing versus Ksh.25,000 in submissions and awards)
Parties are not named in the judgment; only 'the appellant' and 'the respondent' appear
Case title and number of the present appeal are not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omar t/a Meat Magic Enterprises v Kalu (Appeal E088 of 2024) [2025] KEELRC 325 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/325/eng@2025-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.