Muema (The Chairperson of Vescon One Residents Welfare Group) v Nzai (Appeal E250 of 2024) [2025] KEELRC 1240 (KLR)
The bottom line
#A Kenyan court confirmed that ignoring an absent employee's dismissal process costs employers, but slashed excessive compensation because the trial judge gave no reasons.
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's employment was unfairly terminated or whether he deserted/abandoned duty
- 2.Whether the award of 12 months' compensation by the trial court was justified
- 3.Whether the claim for house allowance for 9 years was time-barred
- 4.Whether the claims for overtime, NHIF dues, unpaid leave and service pay were proved
- 5.Whether the award of costs and interest from the date of filing suit was proper
Key legal issues
#Whether employment was unfairly terminated
Employment was terminated without due process and contrary to law; the employer failed to issue the statutory notices under sections 44 and 18 of the Employment Act
The employer claimed the respondent deserted duty, but after the letters dated 9 and 13 January 2022 it took no further action, issued no sanction and assumed resignation without notice. Under section 44(4)(a) absence is gross misconduct requiring the employee be invited to respond, and under section 18(5)(b) a dismissal report must be delivered to a labour officer. Without the requisite statutory notice, the court must believe the respondent's account that he was sent away on 1 January 2022.
Quantum of compensation for unfair termination
The maximum award of 12 months was reduced to 3 months' gross salary (Ksh.46,826.55)
The trial court gave no reasons for awarding the maximum 12 months' compensation. Under Section 45(5) of the Employment Act no record of the employee's conduct was filed. Since the highest award must have a basis and none was given, the appellate court interfered and awarded 3 months' gross salary based on the corrected gross wage of Ksh.15,608.85.
House allowance and underpayment claims (limitation)
Only 12 months of underpayment preceding termination is claimable, being a continuing injury under Section 89
The employer did not file a payment statement to support the claimed gross salary of Ksh.11,000; the respondent's November 2019 statement showed Ksh.10,000. Applying the minimum wage for a Mombasa cleaner in January 2022, gross salary should have been Ksh.15,608.85, yielding an underpayment of Ksh.5,608.86 monthly, i.e. Ksh.67,306.10 for the 12 months before termination.
Costs and interest
Costs are discretionary under Section 12(4) of the ELRC Act; each party to bear own costs
The trial court awarded costs and interest from the date of filing suit without stating reasons, contrary to Section 12(4) of the Employment and Labour Relations Court Act. The appellate court, having varied the award, ordered each party to bear its own costs for both the appeal and the trial court.
Legal principles established
#- An employee does not terminate employment through absenteeism; the employer must proactively address gross misconduct and issue statutory notices
- Absence from work without authorisation is gross misconduct under Section 44(4)(a) of the Employment Act requiring the employee to be invited to address it
- A first appeal requires a broad and exhaustive re-evaluation of the entire record
- An award of the maximum 12 months' compensation must be supported by reasons; absent reasons, the appellate court may interfere
- House allowance and underpayment claims are continuing injuries claimable only within 12 months of cessation of employment
Court orders
#- 1.Compensation Ksh.46,826.55
- 2.Notice pay Ksh.15,608.85
- 3.Service pay Ksh.45,000
- 4.Underpayments including house allowance Ksh.67,306.10
- 5.Each party to bear its costs for the appeal and trial court costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court (trial court, Mombasa)
- CMELRC No. E479 of 2022
- Jurisdiction invoked
- First appeal to the Employment and Labour Relations Court against a judgment of the trial court (magistrate's court, ELRC jurisdiction)
Relief refused
#12 months' compensation as awarded by trial court (reduced to 3 months)
The trial court gave no reasons for the maximum award; no record of the employee's conduct filed
House allowance/underpayment for 9 years
Continuing injury claimable only within 12 months of cessation under Section 89 of the Employment Act
Unpaid leave for 9 years
The respondent enjoyed his annual leave; the claim is not justified
Unpaid NHIF dues
NHIF dues are payable to the statutory body, not the employee
Overtime claim
The Memorandum of Claim did not particularise the overtime claim; only a general claim was made
Costs and interest from date of filing suit
Costs are discretionary under Section 12(4) ELRC Act and reasons must be given; each party to bear own costs
Costs
Each party to bear its costs for the appeal and trial court 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.
Without the requisite statutory notice under sections 44 and 18 of the Employment Act, the court must believe the respondent's record of events.
The employee does not terminate his employment through absenteeism or abandonment of work. The employer must remain proactive and secure itself through the law. Absenteeism and absconding duty are acts of gross misconduct that the employer must address.
The trial court does not give any reasons whatsoever for the award of 12 months. This discretion can hence be interfered with.
this is a continuing injury that arises monthly and must be claimed within 12 months from the date of cessation under Section 89 of the Employment Act.
Accordingly, the appeal addressed, the award of the trial court is reviewed in the following terms
e. Each party to bear its costs for the appeal and trial court costs.
Issues in the judgment
#Compensation arithmetic inconsistent: court awards 'a ward of 93 months' gross salary' where 3 months is evidently meant, and the gross wage is variously stated as Ksh.15,608.85 and Ksh.15,608.65
Letters to the respondent inconsistently dated: the case states letters were written on 9 November 2022 and 13 January 2022, then states the filed letters are dated 9 and 13 January 2022
Monthly wage inconsistently stated as Ksh.10,000 and Ksh.11,000 depending on party, and the appellant's own pleading of employment 'from 1 September 2012' versus 'employed as a cleaner'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muema (The Chairperson of Vescon One Residents Welfare Group) v Nzai (Appeal E250 of 2024) [2025] KEELRC 1240 (KLR)", Case Analysis (2025). Not stated on the face of the judgment (appeal from Mombasa CMELRC No. E479 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1240/eng@2025-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.