Chakra Company Ltd v Patrick Musalia
The bottom line
#A Kenyan court ruled that an exit form marked 'resignation' given instead of approved leave proved unfair termination, dismissing the employer's appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.How the Respondent's employment was terminated - the major issue the Court distilled: whether the Respondent proved that his employment was terminated by the Appellant, requiring 'an enquiry into how the Respondent left the Appellant's employ'.
- 2.Whether the Learned Trial Magistrate erred in law and fact in finding that the Respondent was unlawfully terminated and in awarding the remedies granted.
- 3.Who should bear the costs of the appeal.
Key legal issues
#Whether the Respondent proved that his employment with the Appellant was terminated.
Yes. The Respondent applied for 21 days' leave from 6th to 26th February 2025 but was instead issued an exit form recording his exit as 'resignation'; the form bore no leave particulars and constituted evidence of termination.
The Court reasoned that leave is a formal, defined arrangement: a request is made, a form filled and approval granted for a defined period. Here the employee sought 21 days' leave from 6th February 2025 to 26th February 2025 ostensibly for a private family matter, yet received an exit form citing a resignation he never made. Had leave genuinely been approved, the form would show the days granted and the commencement and end dates; it did not. The form therefore spoke for itself as evidence of termination.
Whether the Learned Trial Magistrate erred in law and fact in finding the Respondent was unlawfully terminated and in awarding the remedies granted.
No. On re-evaluation as a first appellate court, the trial finding that the employment was terminated stands; the appeal fails and the trial judgment is affirmed.
Applying the Selle and Abdul Hammed Saif standard, the Court re-evaluated the record. It found the documentary trail - an exit form marked 'resignation' issued upon a leave application, stripped of leave particulars, coupled with the demand that the guard surrender his uniform - inconsistent with approved leave and consistent with termination. The Appellant's contentions that only the Human Resource office could dismiss employees, and its sequential burden argument under section 47(5) of the Employment Act and section 107 of the Evidence Act, were not expressly resolved; the Court rested on the inference of termination and affirmed the judgment and remedies wholesale.
Who should bear the costs of the appeal.
No order as to costs; both sides invoked section 27 of the Civil Procedure Act but the appeal was dismissed 'albeit with no order as to costs'.
The Appellant prayed that the appeal be allowed with costs pursuant to section 27 of the Civil Procedure Act, while the Respondent sought his costs of the suit calculated from the date of the trial judgment. Having dismissed the appeal, the Court declined to make any order on costs and gave no reasons for departing from the costs-follow-the-event principle, leaving each party to bear its own costs of the appeal.
Legal principles established
#- A first appellate court must reconsider and re-evaluate the evidence on record and draw its own conclusions, bearing in mind that it did not see or hear the witnesses testify.
- An exit form issued in place of leave approval, recording a 'resignation' that never occurred and lacking leave particulars, constitutes evidence of termination of employment.
- Genuine leave is a defined and approved arrangement: a request is made, a form filled, and approval given permitting the worker to proceed on leave for a defined period.
Court orders
#- 1.The appeal is dismissed.
- 2.No order as to costs.
- 3.The Judgment of the Learned Trial Magistrate (Hon. M. Nyigei, SPM, in Kisumu MCELRC No. E049 of 2025) is affirmed.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Kisumu MCELRC (Magistrates' Court, Employment & Labour Relations)
- Kisumu MCELRC No. E049 of 2025
- Jurisdiction invoked
- First appellate jurisdiction of the Employment & Labour Relations Court over the subordinate court; no enabling provision expressly invoked in the judgment (section 78 of the Civil Procedure Act was cited only for the first appellate court's duty to re-evaluate evidence).
Relief refused
#Appellant's prayer to set aside the Trial Court's judgment and allow the appeal with costs.
The Court found the exit form constituted evidence of termination; the appeal lacked merit and was dismissed.
Respondent's prayer for costs of the suit pursuant to section 27 of the Civil Procedure Act, calculated from the date of the Trial Court's judgment.
Despite the Respondent successfully defending the appeal, the Court made no order as to costs.
Costs
No order as to costs - 'The foregoing is ample that the Appeal fails and is dismissed albeit with no order as to costs' - each party to bear its own costs of the appeal.
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.
The foregoing is ample that the Appeal fails and is dismissed albeit with no order as to costs. The Judgment of the Learned Trial Magistrate is affirmed.
The exit form speaks for itself and constitutes evidence that the employment of the Respondent had been terminated.
As a first appellate court, this Court is required to reconsider and re-evaluate the evidence on record and draw its own conclusions, while bearing in mind that it did not have the benefit of seeing and hearing the witnesses testify.
Had the Appellant genuinely approved his leave, the exit form would have indicated the number of days granted and the dates on which the leave commenced and ended.
When an employ is to go for leave, a leave request is made, a leave form is filled or something similar. Leave sought is defined – a few days, weeks or even a month as is appropriate.
given the major issue for determination is how the employment was terminated, there has to be an enquiry into how the Respondent left the Appellant's employ
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chakra Company Ltd v Patrick Musalia", Case Analysis (2026). Appeal No. E031 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2482/eng@2026-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.