Baru v Kiara (Employment and Labour Relations Appeal E033 of 2024) [2025] KEELRC 2381 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent voluntarily left his job or he was unfairly and unlawfully dismissed by the appellant.
- 2.Whether the awards by the trial court should stand.
Key legal issues
#Burden of proving unfair termination
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.
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.
Duration of employment (2010 vs 2017)
Employment proved only from December 2017 to August 2023, based on the Mpesa statements and the appellant's own testimony.
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.
Validity of trial court's direction to Labour officer to compute damages
The direction was set aside as an abdication of judicial duty and a breach of fair-trial rights.
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.
Legal principles established
#- 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
#- 1.The claims for unfair and unlawful dismissal, compensation and salary in lieu of notice are dismissed entirely.
- 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.Since the appeal succeeded partially, each party shall bear own costs of the appeal and the court below.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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.
One-month salary in lieu of notice
Fell with the failed claim of unfair termination.
Computation of accrued benefits from January 2010
Only Mpesa statements from December 2017 proved the employment period.
Costs
Each party shall bear own costs of the appeal and the court below.
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 evidence of dismissal by the employer, an employee who stops attending work must be presumed to have resigned.
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.
The work of assessing and determining the amount payable is a judicial duty to be concluded by the court.
The claims for unfair and unlawful dismissal, compensation and salary in lieu of notice are dismissed entirely.
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.
Since the appeal succeeded partially, each party shall bear own costs of the appeal and the court below.
Issues in the judgment
#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.
The case number of both the appeal and the lower court suit are not stated anywhere in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.