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ELRCPartially AllowedAppeal against the Judgment in Nakuru MCELRC Case No. E077 of 2023

Ponders Limited v Kihumba (Employment and Labour Relations Appeal E049 of 2024) [2025] KEELRC 1699 (KLR)

Employment and Labour Relations Court
12 June 2025
2,813 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan employer who doesn't show up with witnesses to defend a dismissal will almost certainly lose, even on appeal.

What this practically means

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Executive summary

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Ponders Limited appealed against the judgment of Hon. Ruth Kefa Chebesio, Principal Magistrate, in Nakuru MCELRC Case No. E077 of 2023 (Gladys Waithera Kihumba v Ponders Limited), which had awarded the Respondent Kshs.284,615.40 for unpaid leave, unpaid maternity leave and unfair termination. The Appellant raised ten grounds, principally that the maternity and leave claims were time-barred under section 91(1) of the Employment Act, and that the Respondent had walked away from employment voluntarily rather than being dismissed. The dispute was disposed of by written submissions. The single issue for determination was whether the appeal was merited. Relying on G4S Security Services K Limited v Joseph Kamau & 468 Others and Attorney General v Andrew Maina Githinji, the court held that unpaid terminal dues do not constitute a continuing injury but remain claimable within three years of termination, and since the claims were raised within time they were properly awarded. On termination, the court found the Appellant had presented no witnesses or documents; under sections 45, 41 and 47(5) of the Employment Act and sections 107 and 108 of the Evidence Act, the burden of justifying termination lay on the employer, and unproved pleadings are not evidence (CMC Aviation v Cruisair). The appeal therefore failed on liability, but the court varied the remedies by setting aside the Kshs.75,000 maternity leave award for want of evidence and limitation. Final awards were reduced to Kshs.209,615.40 plus interest at 14% per annum from the date of judgment until full payment, with costs of the trial and the appeal to the Respondent.

Questions the Court framed

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

  1. 1.whether the appeal before this court is merited

Key legal issues

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01

Limitation of employment claims under sections 89/90/91 of the Employment Act

Holding

Claims for unpaid leave, unpaid maternity leave and compensation for unfair termination were raised within time as the suit was filed within three years of cessation of employment; terminal dues are not a continuing injury but remain claimable within three years of termination

Reasoning

The court adopted the G4S decision clarifying that terminal dues must be claimed within three years of termination. Since employment ceased in March 2022 and the suit was filed within that window, the awarded claims were not time-barred, defeating the appellant's limitation grounds.

p. 5
02

Whether the Respondent was wrongfully/unfairly terminated or walked away voluntarily

Holding

The finding of wrongful termination stands; the appellant, having failed to call any witnesses or produce documents, did not discharge its burden of justifying the termination

Reasoning

The trial record showed the appellant presented no witnesses. Under sections 45, 41 and 47(5) of the Employment Act and sections 107 and 108 of the Evidence Act, the burden of justifying termination lay on the employer. Pleadings are not evidence; unproved averments cannot found a decision. The appellant therefore failed to disprove the trial court's finding.

p. 5
03

Sufficiency of the maternity leave award

Holding

The Kshs.75,000 maternity leave award is set aside for lack of evidence and limitation

Reasoning

Unlike the other dues, there was no proof that the claimant was on maternity leave without pay, and the claim related to 2018 and 2019, over three years before filing. The award was therefore reduced accordingly, with interest at 14% per annum.

p. 6

Legal principles established

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  • Unpaid terminal dues, including leave and maternity leave, are claimable within three years of termination and do not constitute a continuing injury
  • The employer bears the burden of justifying grounds for termination under section 47(5) of the Employment Act, and failure to adduce evidence is fatal

Court orders

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  1. 1.Appeal dismissed except as to the award of unpaid maternity leave, which is set aside
  2. 2.Total award reduced to Kshs.209,615.40 plus interest at 14% per annum from the date of judgment until full payment
  3. 3.Costs of the lower court trial and costs of the appeal awarded to the Respondent

The bench

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

Wrote the judgment

On appeal from
Magistrates' Court (Employment and Labour Relations), Nakuru
Nakuru MCELRC Case No. E077 of 2023
Jurisdiction invoked
First appeal from the Principal Magistrate's Court in an employment dispute under the Employment Act

Relief refused

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Restoration of the Kshs.75,000/= maternity leave award

No evidence the claimant was on unpaid maternity leave; claim was also time-barred, having accrued more than three years before filing

p. 6

Costs

Costs of the lower court trial and costs of the appeal go to the Respondents.

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.

The claims for unpaid leave, unpaid maternity, and compensation for unfair termination were raised within the time, and therefore, the learned magistrate did not err in awarding the said reliefs sought as the claims were unchallenged.
p. 5Limitation of employment claims
The Appellant was to justify its decision in terminating the Respondent, but failed to do so as it did not present any witnesses to testify.
p. 6Burden of proving justification for termination
The court however on the matter of remedies awarded upholds all the awards except the unpaid maternity leave as there was no evidence of the claimant having been on maternity leave and not paid her salary.
p. 6Variation of remedies
The total awarded therefore will be: Kshs.284,615.40 less Ksh.75,000/= = Kshs.209,615.40 plus interest at 14% per annum from date of this judgment until full payment.
p. 6Final orders - quantum and interest
Costs of the lower court trial and costs of the appeal go to the Respondents.
p. 6Final orders - costs

Issues in the judgment

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minor

The judgment cites section 89 of the Employment Act but the quoted text corresponds to section 90, and the court elsewhere refers to both sections 90 and 91 inconsistently for the same limitation provision

minor

Paragraph 23 awards reliefs to the Respondent but paragraph 28 reduces the total by the maternity award; the respondent's stated claim quantum (Kshs.150,000 maternity; Kshs.300,000 compensation) does not reconcile with the trial court award of Kshs.284,615.40 discussed in the appeal grounds

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ponders Limited v Kihumba (Employment and Labour Relations Appeal E049 of 2024) [2025] KEELRC 1699 (KLR)", Case Analysis (2025). Appeal against the Judgment in Nakuru MCELRC Case No. E077 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1699/eng@2025-06-12

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