Aron v Bokhol Transporters Limited (Appeal E185 of 2024) [2025] KEELRC 805 (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 trial court erred in applying the wrong standard of proof and disregarding the appellant's evidence
- 2.Whether the appellant's employment was terminated and if so whether unfairly
- 3.Whether the appellant is entitled to terminal dues: underpayments, notice pay, compensation, leave pay, off days, public holidays, house allowance, and certificate of service
- 4.Whether the underpayment claims are barred by limitation as continuing injuries
Key legal issues
#Termination of employment despite respondent's assertion of continuing employment
Where an employee ceases work and demands terminal dues, the employer is obliged to formally end employment; failing which termination is unfair
The respondent maintained the appellant remained an employee even after he demanded terminal dues. The court held that standing back while aware the relationship had ended is an unfair labour practice. The employer should have issued notice under Section 18(5)(b) and deposited dues with the Labour Office. The discharge voucher alone could not exonerate the employer.
Standard of proof and burden in unfair termination claims
Employment claims are decided on a balance of probabilities; the employer must justify termination and produce work records
The appellant argued the trial court wrongly required proof beyond reasonable doubt. The appellate court found the trial court's reliance solely on the discharge voucher erroneous, noting the respondent filed no work records on rest days, leave, or wage payments, and that terminal dues must be assessed on the merits under Sections 18(4) and 45.
Quantum of terminal dues
Underpayments, notice pay, compensation, leave pay, off days and public holiday pay awarded based on the Wage Order gross wage of Ksh.16,857.65
The agreed wage of Ksh.5,000 was below the statutory minimum for a turnman in Mombasa (basic Ksh.14,658.85 plus house allowance), so underpayment was established. Continuing-injury limitation confined underpayment, rest day and public holiday claims to 12 months back from March 2021. Leave limited to 33 days under Section 28(4).
Employee's conduct in assessing compensation
Under Section 45(5), the appellant's failure to account for his whereabouts reduced compensation to one month's gross wage
The appellant did not give a proper account of his whereabouts from 25 March to 25 May 2021. Considering his conduct and the respondent's failure to properly address the reasons for termination, the court awarded compensation at one month's gross wage rather than the 12 months sought.
Legal principles established
#- An employer must formally terminate employment where an employee abandons work; mere desertion does not end the relationship
- Parties cannot consent to payment below the statutory minimum wage
- Underpayments and rest days are continuing injuries recoverable within 12 months under Section 89
- Annual leave does not accrue beyond 18 months absent employer approval
Court orders
#- 1.Declaration that employment terminated unfairly
- 2.Compensation of Ksh.16,857.65
- 3.Notice pay Ksh.16,857.65
- 4.Underpayments Ksh.94,861.42
- 5.Leave pay Ksh.16,124.75
- 6.Off days Kshs.15,848.30
- 7.Public holidays Ksh.6,933.65
- 8.Certificate of service to be issued
- 9.Costs of the trial court proceedings to the appellant
- 10.Each party to bear its own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (ELRC), Mombasa
- Mombasa CMELRC No. E516 of 2024
- Jurisdiction invoked
- First appeal from the trial court in employment and labour relations matter
Relief refused
#Salary for May 2021
Claim was for a period not worked
House allowance as a separate head
Factored into the underpayment assessment
Underpayments, leave and rest days beyond 12 months back
Continuing injuries recoverable only within 12 months under Section 89
Costs
Appellant awarded costs of the trial court proceedings; for the appeal, each party to bear its own 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.
Employment terminated unfairly;
Accordingly, the judgment is Mombasa CMELRC No. E516 of 2021 is hereby reviewed and the following orders issued;
the employee who deserts, absconds, or abandons her employment does not dismiss herself. The decision to formally end the employment relationship should come from the innocent party, the employer.
Parties cannot consent to an illegality.
An underpayment is a continuing injury. It occurs monthly and should be addressed under Section 89 of the Employment Act within 12 months from the date of cessation.
The execution of the discharge voucher is insuficient to exonerate the respondent from its legal duty under Section 35(4) of the Employment Act.
Issues in the judgment
#Contradictory dates of alleged termination in the appellant's pleadings and submissions
Judgment states appeal arises from Mombasa CMELRC No. E516 of 2024 but the disposition refers to No. E516 of 2021
Judgment records the accident date inconsistently (15 May 2021 vs the narrative of discharge on 25 March 2021)
Typographical error in the compensation assessment passage ('25 March to 25 May 2025')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aron v Bokhol Transporters Limited (Appeal E185 of 2024) [2025] KEELRC 805 (KLR)", Case Analysis (2025). Mombasa ELRC Appeal (from Mombasa CMELRC No. E516 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/805/eng@2025-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.