Beyond Fruits Limited v Said Salim Lewa
The bottom line
#Kenya's Employment Court confirmed that an employer claiming an employee deserted must prove it tried to reach them—removing a name from payroll proves nothing.
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 dispute was one appropriately determined under Rule 59 of the Employment and Labour Relations Court (Procedure) Rules, 2024, and with what consequence
- 2.whether the Respondent discharged the burden placed on him by section 47(5) of the Employment Act
- 3.how and when the employment relationship came to an end
- 4.whether the termination was fair
- 5.whether the claim was time-barred
- 6.whether the reliefs granted were warranted
Key legal issues
#Suitability of Rule 59 documentary determination
The trial court erred to direct a Rule 59 determination where the central dispute was a contested fact requiring cross-examination, but the Appellant did not appeal that mode of trial, so the appeal proceeds on the record as it stands.
Rule 59 is a case-management tool consistent with the overriding objective. It is inappropriate where the outcome depends on which of two irreconcilable accounts is true, since credibility is tested by cross-examination. However, the Appellant did not make the mode of trial a ground of appeal and embraced the documentary record, so the appeal was determined on that footing.
Burden of proof under section 47(5)
The Respondent laid a sufficient evidential foundation of unfair termination through his sworn account, shifting the burden to the Appellant to justify the termination under section 43.
Section 47(5) requires the employee only to lay a prima facie foundation that termination by the employer occurred and was unfair. The Respondent's account was detailed, sworn and internally consistent, and the Appellant's own letter of 2nd March 2021 admitted a summary dismissal by the employer.
Proof of desertion
Desertion was not proved: no call logs, letters, show-cause notice or attendance records were produced, and the manager named as the dismissing officer was not called as a witness.
Desertion requires intention to abandon employment, inferred only after reasonable efforts to contact the employee. The letters to the County Labour Office were self-serving assertions, not proof. The payroll showed only that payment stopped. The failure to call Mr. Mwamleu, the central witness, attracted the Bukenya adverse inference.
Fairness of termination
The termination failed both substantive and procedural fairness: no valid reason was proved and no hearing, notice or show-cause letter was given.
Sections 43, 41 and 45 of the Employment Act require a valid proved reason and a fair procedure. The alleged overloading was never investigated or put to the Respondent; even the purported 'summary dismissal' of 2nd March 2021 was decided without hearing him.
Limitation
The claim, filed in May 2024, was within three years of the termination found to have occurred on 5th July 2021; the continuing-injury argument failed because it was not pleaded and rested on the rejected February 2021 date.
Section 89 requires actions within three years. The pleaded limitation defence rested wholly on the February 2021 cessation date, which was rejected. The twelve-month continuing-injury contention surfaced first in submissions, and submissions cannot supply an unpleaded defence under Order 2 rule 4(1).
Reliefs
All awards upheld: notice pay, underpayment against the 2018 Wages Order, house allowance at 15%, leave (no records produced), and two months' compensation within the section 49 discretion.
Statutory minimum wages cannot be contracted out; the pay slips showed basic pay and house allowance as separate items. Leave records within the employer's control were not produced, shifting the burden under section 10(7). The compensation award was modest and no appellate basis for interference was shown.
Legal principles established
#- An employer asserting desertion must demonstrate reasonable efforts to trace the employee and require him to resume duty; reporting to the labour office is no substitute for notice to the employee.
- A direction under Rule 59 does not shift the burden of proof; each party must stand or fall on its own documents, and a party bearing the burden suffers if its documents do not prove the fact.
- An employer's internal payroll showing an employee's name removed proves only that payment stopped, not that the employee deserted.
Court orders
#- 1.The appeal is dismissed.
- 2.The Judgment and Decree of the Principal Magistrate's Court at Mombasa delivered on 29th August 2025 in Mombasa MCELRC No. E309 of 2024 is upheld in its entirety.
- 3.The Appellant shall bear the Respondent's costs of this appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court at Mombasa
- Mombasa MCELRC No. E309 of 2024
- Jurisdiction invoked
- First appellate jurisdiction over the Principal Magistrate's Court (Employment and Labour Relations Court Act; Employment and Labour Relations Court (Procedure) Rules, 2024)
Relief refused
#Setting aside of the trial court's judgment and decree
The appeal lacked merit; the termination was unfair and the claim was within time.
Costs
The Appellant shall bear the Respondent's costs of this 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.
Credibility is tested in the crucible of cross-examination. A witness statement cannot be asked a question, and one document cannot confront another.
Desertion goes further. It connotes an employee's unilateral abandonment of his employment, with the intention, express or evident from his conduct, of not returning.
It does not say when, how, by whom or at what number. A statement made by a party, to a third party, in its own interest, does not become proof because it has been reduced to writing and stamped as received.
If such a document were enough to prove desertion, an employer could prove desertion simply by removing an employee's name from its own records.
where a party fails, without explanation, to call a witness who is available to it and whose evidence goes to the heart of the matter in dispute, the court may infer that his evidence, had it been called, would have been adverse to that party
Submissions, however cogent, are not pleadings, and cannot supply a plea that the pleadings omitted.
For the foregoing reasons, the appeal lacks merit, and it is dismissed.
The Judgment and Decree of the Principal Magistrate's Court at Mombasa (Hon. G. Sogomo, PM) delivered on 29th August 2025 in Mombasa MCELRC No. E309 of 2024 is upheld in its entirety.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Beyond Fruits Limited v Said Salim Lewa", Case Analysis (2026). ELRC Appeal No. E180 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2600/eng@2026-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.