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ELRCDismissedAppeal No. E001 of 2026

The Chairman Masaba Farmers Co-operative Union Limited & 2 others v Peter Ombaba Nyaoko

Employment & Labour Relations Court of Kenya at Kisii
29 September 2026
2,410 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Kisii against the judgment of Hon. Nyariki Joshua (SRM) in Kisii MELRC No. E002 of 2022, delivered on 27th August 2025, in which the Respondent employee successfully sued the Appellants, his former employers at Masaba Farmers Co-operative Union Limited. The Appellants advanced sixteen grounds of appeal, contending principally that the Respondent had retired lawfully upon attaining retirement age (asserting his birth date as 1st January 1963 per NSSF and identity card records), that he had been paid his salary and utilised his leave, and that the awards of Kshs. 1,433,525/- in salary arrears, payment in lieu of leave, an order to remit PAYE and NSSF deductions, and Kshs. 100,000/- in damages were unsupported. The appeal was canvassed by written submissions. Applying the settled duty of a first appellate court to re-evaluate the evidence (Selle v Associated Motor Boat Co; Abdul Hammed Saif v Ali Mohamed Sholan), Nzioki wa Makau, J held that the Appellants' assertion of a 1st January 1963 birth date was unproven, that the employer as keeper of records had admitted haphazard salary payment and failed to produce employment records, and that its failure to prove the Respondent had utilised his leave was fatal. The discretionary damages award was not shown to have been arrived at on wrong principles. The appeal was accordingly dismissed with costs to the Respondent, upholding the Trial Court's judgment in its entirety.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Trial Magistrate erred in finding the Respondent's retirement premature, unfair and unlawful rather than a lawful retirement upon attaining retirement age
  2. 2.Whether the Respondent was born on 1st January 1963 or December 1963, and whether he had attained retirement age
  3. 3.Whether the award of Kshs. 1,433,525/- in salary arrears was supported by the evidence
  4. 4.Whether the award of salary in lieu of leave for the entire employment period was justified
  5. 5.Whether the order to remit PAYE tax and NSSF deductions was warranted
  6. 6.Whether the award of Kshs. 100,000/- as damages was lawful and within the Trial Court's discretion

Key legal issues

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01

Date of birth and retirement age

Holding

The Appellants' assertion that the Respondent was born on 1st January 1963 was unproven; the identity card indicates only 1963, so the Trial Court's finding could not be disturbed

Reasoning

The Appellants asserted a specific birth date without proof. The Respondent's documents only show 1963. The Court held it erroneous to assume 1st January 1963 over December 1963, so the finding of premature retirement stood.

p. 13
02

Salary arrears

Holding

The employer, as keeper of records, admitted haphazard payment; failure to complain previously was immaterial

Reasoning

The employer admitted paying salaries haphazardly and did not produce records. The Court held the Trial Court was entitled to find non-payment, and the Respondent's lack of prior complaint did not cure the employer's non-compliance.

p. 14
03

Leave pay

Holding

The Appellants' failure to prove the Respondent went on leave as alleged was fatal to their assertion that all leave days were spent

Reasoning

As keepers of employment records, the Appellants bore the burden of proving utilisation of leave. Their failure to discharge it meant the award of salary in lieu of leave could not be faulted.

p. 14
04

Damages of Kshs. 100,000/-

Holding

The award was within reason and a discretionary remedy; no misdirection was demonstrated

Reasoning

Applying the principle that an appellate court does not interfere with judicial discretion absent misdirection, the Court found the award reasonable and declined to disturb it.

p. 14

Legal principles established

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  • The duty of a first appellate court is to reconsider and re-evaluate the evidence and draw its own conclusions without the benefit of seeing witnesses
  • An employer who keeps employment records bears the consequences of failing to produce them; ad hoc salary payment practices cannot support a claim of error by the Trial Court
  • An appellate court will not interfere with a discretionary award absent a misdirection or failure to consider relevant factors

Court orders

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  1. 1.The appeal is dismissed with costs to the Respondent
  2. 2.The judgment and decree of Hon. Nyariki Joshua (SRM) in Kisii MELRC No. E002 of 2022 delivered on 27th August 2025 is upheld

The bench

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

majority

Wrote the judgment

On appeal from
Kisii Magistrates' Court (MCELRC)
Kisii MCELRC No. E002 of 2022
Jurisdiction invoked
First appellate jurisdiction over the magistrates' court judgment (Employment and Labour Relations Court appeal)

Relief refused

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Setting aside the Trial Court's judgment and substituting it with an order dismissing the suit

The appeal lacked merit; the Trial Court correctly found premature retirement, unpaid salary arrears and unutilised leave

p. 15

Costs

Appeal dismissed with costs to the Respondent

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.

In the final analysis I find there is no merit in this appeal and it is accordingly dismissed with costs to the Respondent.
p. 15Disposition - dismissal of appeal
The duty of a first appellate court is 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.
p. 13Duty of first appellate court
When an employer chooses to use a means of payment of salaries that is ad hoc a Trial Court cannot be said to have fallen into error where it is determined there was non-payment of salaries as required
p. 14Employer's ad hoc salary payment practices
the Appellants were the keepers of the records of employment and their failure to prove the Respondent went on leave as alleged in their defence was fatal to their assertion that the Respondent spent all his leave days.
p. 14Burden of proof on employer as record keeper

Issues in the judgment

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material

Judgment simultaneously states the Respondent attained retirement age and affirms a finding of premature retirement

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, "The Chairman Masaba Farmers Co-operative Union Limited & 2 others v Peter Ombaba Nyaoko", Case Analysis (2026). Appeal No. E001 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2650/eng@2026-09-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.