Jane Mutheu Mutisya v AIC Mwatate Secondary School
The bottom line
#A Kenyan court ruled that an employer who never formally terminates employment in writing cannot claim a worker absconded, and must pay compensation.
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 trial court properly evaluated the evidence on abscondment
- 2.Whether the Appellant's employment was terminated
- 3.Whether she was entitled to the reliefs sought
Key legal issues
#Standard of review on a first appeal
The Court is bound to re-evaluate and re-assess the evidence and reach its own conclusions while bearing in mind the trial court's advantage of seeing and hearing the witnesses
Invoking Selle v Associated Motor Boat Co., the court stated the first-appeal duty, noted that the respondent filed no submissions in opposition, and proceeded to independently re-assess the evidence on the employment relationship, wages, abscondment and termination before substituting its own findings for those of the magistrate.
Regularity of the employment despite alleged irregular recruitment
The employment was regular; the respondent could not rely on its own recruitment irregularities to deny the relationship it maintained for years
The respondent contended that there was no advertisement or interview before the appellant's appointment. The trial court found the employment regular because the respondent hired and retained her services for several years, and the appellate court found no reason to interfere with that finding, holding the employer bound by the relationship it created and maintained.
Whether the respondent proved abscondment
Abscondment was not proved; the magistrate correctly so held, and the employer was obliged to issue written termination notice and copy the Labour Officer
The respondent's witnesses said the appellant ignored calls to resume duty, but the principal admitted no written notice requiring her to return or explain her absence was issued, and the secretary confirmed the Board summons of 17 July 2023 was conveyed orally because the written summons was unsigned. With the appellant claiming she repeatedly sought to resume duty, the absence of written communication did not establish deliberate abandonment.
Whether the appellant's employment was terminated, and if so, lawfully
The respondent terminated the employment relationship without due process, hence unlawfully and unfairly, engaging sections 35, 41, 43 and 45 of the Employment Act
Sections 41, 43 and 45 presuppose a termination or its contemplation. The respondent maintained it had not terminated the employment and the trial court found no formal termination notice; yet under section 18(5)(b) the employer must, at the end of employment, issue written notice to the employee or, if not viable, to the labour officer. That not having been done, the relationship ended without due process, entitling the appellant to notice pay, compensation and terminal dues.
Constructive dismissal
Not established; the trial court's finding to that effect was correct
Constructive dismissal requires employer conduct amounting to a fundamental breach which causes the employee to regard the contract as terminated. Here the appellant instead asserted that the contract subsisted and repeatedly sought to resume duty; no evidence showed that she resigned or otherwise treated the relationship as ended. The premise of the doctrine was therefore absent, and the trial court's finding stood.
The applicable wage and the underpayment claim
The paid wage was taken as the employer's admitted Ksh. 6,000 per month; the lawful gross minimum wage for a cook was Ksh. 14,955.50, making the 12-month underpayment Ksh. 107,469.66 as a continuing injury under section 89
The respondent filed no employment records but admitted paying Ksh. 6,000; the appointment letter showed Ksh. 4,000 in 2015, later increased to Ksh. 6,000 by a letter of 19 January 2018. Applying the General Wages Orders, the court computed the lawful gross wage for a cook and, because the appellant had not claimed the underpayment when due, limited recovery to the 12 months preceding the claim under section 89 of the Act.
No-work-no-pay, mitigation and the quantum of terminal relief
The appellant did not offer her labour from November 2020 and did not mitigate by seeking new employment, so the 35-month salary claim failed; notice pay and five months' compensation sufficed
Although the respondent failed to recall the appellant, the court found she did not offer her labour thereafter and led no evidence of seeking alternative work after being frustrated. On that basis the claim for 35 months' salary failed, the award being confined to terminal underpayment, one month's notice pay at the lawful wage, and compensation scaled to five full years of service in the unfair circumstances of the loss of employment.
Costs
The trial court's order that each party bear its own costs was displaced; costs of the appeal and the trial court proceedings were awarded to the appellant
The trial court had directed each party to bear its own costs. The appellate court held that such discretion must be exercised judicially and supported by reasons. Because the appellant's employment was terminated unfairly and her demand for terminal dues went unresolved, necessitating the proceedings, the court found a costs award justified and granted the costs of both the appeal and the trial court.
Legal principles established
#- A first appellate court must re-evaluate and re-assess the evidence and reach its own conclusions, bearing in mind the trial court's advantage of seeing and hearing witnesses
- An employer cannot rely on irregularities in its own recruitment process to deny the existence of an employment relationship it maintained
- The employer bears the legal duty to issue a written notice terminating the employment relationship; an employee's absence does not itself end employment
- Even where an employee ignores a summons to resume duty, the employer must issue termination notice and copy the Labour Officer before treating the engagement as ended for abscondment
- An employment relationship terminated without notice, due process or fair reasons is unfair under section 45 of the Employment Act, entitling the employee to notice pay, compensation and terminal dues
- Constructive dismissal requires evidence of conduct amounting to a fundamental breach causing the employee to regard the contract as terminated
- Underpayment of wages is a continuing injury recoverable for only 12 months under section 89 of the Employment Act where not claimed when due
Court orders
#- 1.Judgment in Kangundo ELRC Case No. E003 of 2023 set aside and judgment entered for the appellant against the respondent
- 2.A declaration that employment was terminated unlawfully and unfairly
- 3.Compensation of Ksh. 74,777.50
- 4.Notice pay of Ksh. 14,955.50
- 5.Underpayment of wages of Ksh. 107,469.66
- 6.Costs of the appeal and the trial court proceedings
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Kangundo ELRC (Magistrates' Court)
- ELRC Case No. E003 of 2023
- Jurisdiction invoked
- First appellate jurisdiction of the Employment and Labour Relations Court over a subordinate court employment suit (appeal from Kangundo ELRC Case No. E003 of 2023); no specific constitutional or statutory provision for the appeal is cited in the judgment
Relief refused
#Unpaid salary of Kshs. 385,000 for 35 months from November 2020 at Kshs. 11,000 per month (as claimed)
The appellant did not offer her labour from November 2020 and led no evidence of mitigation by seeking new employment; recovery confined to 12 months' underpayment as a continuing injury
Compensation for unlawful termination of 12 months' gross salary (Kshs. 132,000 as claimed)
Compensation pegged to five full years of service and fixed at five months, not twelve
Claim founded on constructive dismissal
Not established; the appellant maintained that her employment subsisted and sought to resume duties, never treating the contract as terminated
Separate compensation for violation of the right to fair labour practices under Article 41 (as pleaded)
Compensation was granted for unfair termination under the Employment Act framework; no distinct award was made on the Article 41 head
Interest on notice pay, unpaid salary and compensation (as pleaded)
The final orders made no provision for interest despite the appeal succeeding
Costs
Costs of the appeal and the trial court proceedings awarded to the appellant against the respondent, displacing the trial court's order that each party bear its own costs
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.
Accordingly, I find the appeal has merit and the judgment in Kangundo ELRC Case No. E003 of 2023 set aside. Judgment is hereby entered for the appellant against the respondent in the following terms:
a) A declaration that employment was terminated unlawfully and unfairly. b) Compensation Ksh. 74,777.50. c) Notice pay Ksh. 14,955.50. d) Underpayment of wages Ksh. 107,469.66. e) Costs of the appeal and the trial court proceedings.
The employer has the legal duty to secure itself and issue a written notice terminating the employment relationship as required under section 18(4) and (5) of the Act.
Even where the employer summons the employee, and the employee fails to comply, the employer must issue notice and copy the Labour Officer to confirm the steps taken to address abscondment of duty.
An employment relationship terminated without notice, due process, or fair reasons is unfair under section 45 of the Act. It is not justified, and the employee is entitled to notice pay, compensation, and terminal dues.
The Respondent could not rely on alleged irregularities in its own recruitment process to deny the existence of an employment relationship it had maintained for several years.
Constructive dismissal must, however, be established by evidence of conduct amounting to a fundamental breach of the employment contract, which causes the employee to regard the contract as terminated.
under section 89 of the Act, it is a continuing injury; the underpayment is due for only 12 months.
As this is a first appeal, this Court must re-evaluate and re-assess the evidence on record and reach its own conclusions, bearing in mind that the trial court had the advantage of seeing and hearing the witnesses.
Issues in the judgment
#Notice pay figure conflicts internally: the body states Ksh. 14,777.50 while the final orders award Ksh. 14,955.50; the orders govern.
Arithmetic inconsistencies: gross wage 14,955.50 less admitted 6,000 is 8,955.50, not the stated 8,955.80; 15% of 13,005.70 is 1,950.86, not 1,950.15.
School name inconsistency: the cause title reads 'AIC MWATATE SECONDARY SCHOOL' but the body refers to 'AIC Mwatati Secondary School'.
The party is styled 'Appellant' throughout but is once referred to as 'petitioner'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jane Mutheu Mutisya v AIC Mwatate Secondary School", Case Analysis (2026). Appeal No. E020 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2707/eng@2026-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.