Jay Maharaj Hardware Limited v Peter Barasa Nyongesa
The bottom line
#A Kenyan court ruled an employer's failure to keep attendance records cost it the case, confirming the worker was unfairly dismissed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Did the Respondent desert duty or was he wrongfully, unfairly, and unlawfully dismissed?
- 2.Did the lower trial court err in making the awards that it granted to the Respondent?
- 3.What orders should this court make in disposal of this appeal?
Key legal issues
#Whether the Respondent deserted duty or was unlawfully dismissed
The Respondent was wrongfully and unlawfully dismissed without notice or justifiable cause; the show-cause notice was a disguise to sanitize the dismissal
The employer produced no duty attendance records or roster to prove desertion, nor records of efforts to trace the Respondent. The show-cause notice dated 2nd July 2022 followed the Respondent's demand letter of 23rd June 2022, suggesting it was an afterthought. The employer also failed to pay the 17 days worked or communicate its final decision, demonstrating ill will and malice.
Whether the trial court erred in shifting the burden of proof
No error; the burden was properly placed on the employer to avail employment records in its control and custody
Sections 10 and 74 of the Employment Act mandatorily require employers to keep employment records. Once an employee alleges a violation evidenced by such records, the employer must avail them without needing a notice to produce; failure allows the court to draw an adverse inference.
Whether the trial court's awards were lawful and justified
All awards were upheld: notice pay, underpayments per Legal Notice No. 2 of 2019, unpaid salary, housing allowance, accrued leave, five months' compensation, and certificate of service
The court recalculated the awards using Legal Notice No. 2 of 2019 (driver's salary Kshs18,042.85 plus 15% house allowance = Kshs21,175 gross) and found them neither excessive nor unreasonable. Leave pay was justified by the employer's failure to avail leave records. The only correction was subjecting awards to statutory deductions.
Legal principles established
#- An employer need not wait for a notice to produce; once an employee pleads a violation, the employer should avail employment records which are in its custody, failing which adverse inference may be drawn
- A certificate of service is a statutory right of every employee
Court orders
#- 1.Appeal dismissed in its entirety; judgment and decree of the lower trial court upheld and affirmed
- 2.The awards made shall be subjected to appropriate and proportionate statutory deductions
- 3.Costs of the trial in the lower court and of the appeal to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Bungoma Chief Magistrates' Court (ELRC No. 020 of 2022)
- ELRC No. 020 of 2022
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrates' Court ELRC matter (Employment and Labour Relations Court Act)
Relief refused
#Appellant's prayer to set aside the entire judgment and substitute an order dismissing the claim with costs
Court found dismissal was wrongful and unlawful and no grounds to interfere with the trial court's findings or reliefs
Costs
Costs of the trial in the lower court and of the appeal to the Respondent (the claimant in the lower court).
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.
An employer does not have to wait for service of a notice to produce to disprove allegations made against it.
In a thin economy like ours, it is not normal for an employee to just walk away from employment.
my view is that the show-cause notice was a disguise to sanitize the unlawful dismissal and more so after the demand notice.
This appeal is hereby dismissed in its entirety and the judgment and the decree of the lower trial court upheld and affirmed.
the awards above be subjected to the appropriate and proportionate statutory deductions.
Issues in the judgment
#Delivery date (24th September 2026) postdates consent of 1st October 2025 and submissions dated December 2025
Memorandum of appeal ground (v) cites Kshs63,325/= while the decree awarded Kshs63,525/= accrued leave
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jay Maharaj Hardware Limited v Peter Barasa Nyongesa", Case Analysis (2026). ELRC Appeal No. E005 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2569/eng@2026-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.