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Case Brief · caselaw.co.ke
ELRCDismissedELRC Appeal No. E005 of 2025

Jay Maharaj Hardware Limited v Peter Barasa Nyongesa

Employment and Labour Relations Court
24 September 2026
3,001 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Employment and Labour Relations Court at Kakamega (David Nderitu, J) dismissed an appeal by Jay Maharaj Hardware Limited against a judgment of the Bungoma Chief Magistrates' Court (Hon. J. W. Gichimu, CM) which had declared the dismissal of Peter Barasa Nyongesa unlawful and awarded terminal dues of approximately Kshs558,424, including notice pay of Kshs21,175, underpayments of Kshs247,000, unpaid salary of Kshs11,999, housing allowance of Kshs128,850, accrued leave of Kshs63,525, five months' compensation of Kshs105,875, a certificate of service, costs and interest. The Appellant argued the trial magistrate shifted the burden of proof, that the Respondent deserted duty, and that the awards lacked evidential foundation. The court held that employers must keep employment records under Sections 10 and 74 of the Employment Act and need not wait for a notice to produce; failing to avail records invites adverse inference. Finding no attendance records or evidence of efforts to trace the Respondent, and noting the show-cause notice of 2nd July 2022 followed the Respondent's demand letter of 23rd June 2022, the court concluded the notice was a disguise to sanitize an unlawful dismissal. All awards were recalculated against Legal Notice No. 2 of 2019 and affirmed as neither excessive nor unreasonable. The sole variation was that the awards be subjected to statutory deductions. Costs of the trial and appeal were awarded 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.Did the Respondent desert duty or was he wrongfully, unfairly, and unlawfully dismissed?
  2. 2.Did the lower trial court err in making the awards that it granted to the Respondent?
  3. 3.What orders should this court make in disposal of this appeal?

Key legal issues

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01

Whether the Respondent deserted duty or was unlawfully dismissed

Holding

The Respondent was wrongfully and unlawfully dismissed without notice or justifiable cause; the show-cause notice was a disguise to sanitize the dismissal

Reasoning

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.

p. 12
02

Whether the trial court erred in shifting the burden of proof

Holding

No error; the burden was properly placed on the employer to avail employment records in its control and custody

Reasoning

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.

p. 10
03

Whether the trial court's awards were lawful and justified

Holding

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

Reasoning

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.

p. 13

Legal principles established

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  • 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

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  1. 1.Appeal dismissed in its entirety; judgment and decree of the lower trial court upheld and affirmed
  2. 2.The awards made shall be subjected to appropriate and proportionate statutory deductions
  3. 3.Costs of the trial in the lower court and of the appeal to the Respondent

The bench

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

majority

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

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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

p. 13

Costs

Costs of the trial in the lower court and of the appeal to the Respondent (the claimant in the lower court).

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.

An employer does not have to wait for service of a notice to produce to disprove allegations made against it.
p. 10Burden of proof and employer's duty to produce employment records
In a thin economy like ours, it is not normal for an employee to just walk away from employment.
p. 10Desertion - common sense inference
my view is that the show-cause notice was a disguise to sanitize the unlawful dismissal and more so after the demand notice.
Show-cause notice as afterthought
This appeal is hereby dismissed in its entirety and the judgment and the decree of the lower trial court upheld and affirmed.
p. 13Final orders - disposition
the awards above be subjected to the appropriate and proportionate statutory deductions.
p. 13Statutory deductions on awards

Issues in the judgment

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material

Delivery date (24th September 2026) postdates consent of 1st October 2025 and submissions dated December 2025

minor

Memorandum of appeal ground (v) cites Kshs63,325/= while the decree awarded Kshs63,525/= accrued leave

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, "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.