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ELRCPartially AllowedNot stated in the judgment (ELRC Appeal from Nyeri CMCC Labour Office referral, judgment of 2nd October 2024)

Baru v Kiara (Employment and Labour Relations Appeal E033 of 2024) [2025] KEELRC 2381 (KLR)

Employment and Labour Relations Court
14 August 2025
2,721 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 court ruled that an employee who stops showing up without proof of dismissal is presumed to have resigned, erasing a 12-month compensation award.

What this practically means

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Executive summary

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This was an appeal to the Employment and Labour Relations Court at Nyeri against a lower court judgment delivered on 2nd October 2024, in which the trial Magistrate had found that a night security guard's employment was unfairly terminated, awarded him 12 months' salary as compensation, one month's salary in lieu of notice, and directed the Labour officer to compute claims for overtime, public holidays, house allowance, leave and service pay within 21 days. The appellant (employer) contended that the respondent was never dismissed but deserted voluntarily, that employment ran only from 2017 (as shown by Mpesa statements) rather than from 2010, that the respondent worked 8-hour nights with an off day and 21 days' annual leave, and that the trial Magistrate's analysis was biased. Applying Selle v Associated Motor Boat Company Ltd, the court re-evaluated the evidence. It found that the respondent failed to prove the alleged phone-call dismissal: he produced no call logs, and salary was paid up to the date he stopped attending. The court held that an employee who stops attending work without proof of dismissal must be presumed to have resigned, set aside the finding of unfair termination, and dismissed the claims for compensation and notice pay. On duration, it found employment proved only from December 2017, limiting accrued benefits to that period. It also faulted and set aside the trial court's direction to the Labour officer as an abdication of judicial duty offensive to fair trial, holding computation to be a judicial function. The appeal was partially allowed: the termination-related claims were dismissed entirely; the accrued-benefits claims were remitted to the lower court before a different judicial officer; each party was to bear own costs of the appeal and the court below.

Questions the Court framed

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

  1. 1.Whether the respondent voluntarily left his job or he was unfairly and unlawfully dismissed by the appellant.
  2. 2.Whether the awards by the trial court should stand.

Key legal issues

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01

Burden of proving unfair termination

Holding

The employee bears the burden under section 107 of the Evidence Act; the respondent produced no call logs or other proof of the alleged phone-call dismissal.

Reasoning

The respondent alleged dismissal by a phone call on 28th August 2023 but produced no call logs and did not state the time of the call. Although he proved payment of salary up to that date, he failed to prove dismissal. Where an employee quietly leaves employment without notice and no evidence of dismissal is tendered, the employee must be presumed to have resigned, and the employer is innocent unless it relies on the desertion to dismiss.

p. 4
02

Duration of employment (2010 vs 2017)

Holding

Employment proved only from December 2017 to August 2023, based on the Mpesa statements and the appellant's own testimony.

Reasoning

The only documentary evidence was Mpesa statements running from 4th December 2017 to August 2023. The respondent called no witness and produced no other documents to prove employment from 2010. Accrued benefits (house allowance, service pay, overtime, leave, public holidays) are therefore computable only from December 2017.

p. 5
03

Validity of trial court's direction to Labour officer to compute damages

Holding

The direction was set aside as an abdication of judicial duty and a breach of fair-trial rights.

Reasoning

Assessment of quantum is a judicial function starting and ending with the court. A trial court that needs expert assistance must have the resulting report filed and approved by the court before payment. Directing the Labour officer to compute and direct payment without court approval offended fair-trial rules, including the right to challenge the computation.

p. 5

Legal principles established

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  • Without evidence of dismissal by the employer, an employee who stops attending work must be presumed to have resigned; an employer is only liable where he relies on the desertion to dismiss the employee.
  • Computation/assessment of damages is a judicial duty of the court; any referral to a Labour officer or expert must result in a report filed in court for the court's approval.

Court orders

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  1. 1.The claims for unfair and unlawful dismissal, compensation and salary in lieu of notice are dismissed entirely.
  2. 2.The claims for house allowance, service pay, overtime, leave, and public holidays worked are referred back to the lower court to be determined with or without the assistance of the Labour officer as guided in the judgment, before any other Judicial officer other than Hon. Gituma SRM.
  3. 3.Since the appeal succeeded partially, each party shall bear own costs of the appeal and the court below.

The bench

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

majority

Wrote the judgment

On appeal from
Nyeri Chief Magistrate's Court (ELRC jurisdiction)
Not stated in the judgment
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court over appeals from the lower court (ELRC Procedure Rules referenced); the judgment does not cite a specific constitutional provision

Relief refused

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Respondent's award of 12 months' salary compensation for unfair termination

The court found the respondent did not prove he was dismissed; he stopped attending work and must be presumed to have resigned.

p. 4

One-month salary in lieu of notice

Fell with the failed claim of unfair termination.

p. 4

Computation of accrued benefits from January 2010

Only Mpesa statements from December 2017 proved the employment period.

p. 5

Costs

Each party shall bear own costs of the appeal and the court below.

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.

Without evidence of dismissal by the employer, an employee who stops attending work must be presumed to have resigned.
p. 4Presumption of resignation in absence of proof of dismissal
I hold that the finding of fact by the trial court that the appellant unlawfully terminated respondent’s employment was not supported by the evidence. Accordingly, I proceed to set it aside and substitute it with a finding that the respondent left his job voluntarily and without prior notice to the employer.
p. 4Substitution of trial court's finding on termination
The work of assessing and determining the amount payable is a judicial duty to be concluded by the court.
p. 5Computation of damages as judicial function
The claims for unfair and unlawful dismissal, compensation and salary in lieu of notice are dismissed entirely.
p. 5Final orders - dismissal of termination claims
The claims for house allowance, service pay, overtime, leave, and public holidays worked are referred back to the lower court to be determined with or without the assistance of the Labour oficer as guided in this judgment. The referral is to any other Judicial oficer other than Hon.Gituma SRM.
p. 5Final orders - referral back to lower court
Since the appeal succeeded partially, each party shall bear own costs of the appeal and the court below.
p. 5Final orders - costs

Issues in the judgment

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minor

The names of the parties are not fully reproduced in the body of the judgment; the judgment refers only to 'the appellant' and 'the respondent', and the claimant's name never appears in the provided text.

minor

The case number of both the appeal and the lower court suit are not stated anywhere in the judgment.

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, "Baru v Kiara (Employment and Labour Relations Appeal E033 of 2024) [2025] KEELRC 2381 (KLR)", Case Analysis (2025). Not stated in the judgment (ELRC Appeal from Nyeri CMCC Labour Office referral, judgment of 2nd October 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2381/eng@2025-08-14

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