Pride Kings Services Ltd v Fransiscar Agutu

Appeal dated 27th November 2025 contending that the Learned Magistrate: (1) Completely misunderstood and improperly analysed the evidence on record, thereby arriving at erroneous conclusions of fact and law. (2) Erred in law and fact by declaring that the Claimant was unlawfully terminated and awarding damages of Kshs. 58,000/- for unlawful termination without taking in to consideration that the same was not proved. (3) Erred in law and in fact by awarding the sum of Kshs. 9,627/- as salary in lieu of notice without taking in to consideration that the same was not proved. (4) Erred in fact and in law by awarding the sum Kshs. 78,406/- for unpaid leave without taking in to consideration that the same was not proved and also that the same had also lapsed due to time limitation. (5) Erred in fact and in law by awarding the sum of Kshs. 99,036/- as House allowance without taking in to consideration that the same was not proved. Page 2 of 12

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(6) Totally misunderstood and wrongly evaluated the evidence before her and therefore arrived at a wrong conclusion. 2. On the basis of the foregoing grounds the Appellant urges this Court to allow the appeal, re-appraise the evidence and arrive at an independent conclusion and award it costs of the appeal. 3. The appeal was canvassed by way of written submissions. Appellant's Submissions 4. In support of the appeal the Appellant identifies two issues for determination namely: (a) Whether the Respondent was unlawfully terminated from employment; and (b) Whether the Respondent was entitled to the damages awarded. 5. On the first issue, the Appellant submits that the Respondent deserted duty hence the Trial Court erred in finding that her employment had been unlawfully terminated. It contends that both the pleadings and the evidence demonstrated that, Page 3 of 12

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following the termination of its contract with Chemelil Sugar Company, the Respondent was instructed to report to the Appellant's headquarters for redeployment but failed to do so. The Appellant further submits that a memorandum requiring affected employees, including the Respondent, to report for redeployment was displayed on the notice board, but the Respondent declined to comply. It places reliance on section 47(5) of the Employment Act, which places the burden upon an employee to prove the occurrence of unfair termination, as well as section 43(1) of the Act, which imposes a corresponding obligation upon the employer to justify the reasons for termination, failing which such termination is deemed unfair. 6. On the second issue, the Appellant submits that the Respondent was not entitled to the remedies awarded by the Trial Court, by virtue of her desertion of duty. With respect to underpayment, the Appellant contends that the trial court erred in computing the award from 1st May 2018 instead of 1st September 2021, which, according to both the pleadings Page 4 of 12

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and the evidence, was the date on which the Respondent commenced employment. 7. On the issue of annual leave, the Appellant relies on section 28 of the Employment Act and submits that any award under this head ought to have been limited to the Respondent's monthly salary of Kshs. 8,636.30 as opposed to the sum of Kshs. 17,151/- awarded by the trial court. 8. On house allowance, the Appellant submits that the Trial Court erred in making an award for periods falling outside the three-year limitation period prescribed under section 90 of the Employment Act. Consequently, it urges the Court to allow the appeal with costs. Respondent's Submissions 9. In response, the Respondent identifies the following issues for determination: (i) Whether the termination of employment was substantially and procedurally fair; (ii) Whether the awards made by the Trial Court were lawful and proved; Page 5 of 12

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(iii) Whether the appeal meets the threshold for appellate interference; and (iv) Who should bear costs of the appeal. 10. On the first issue the Respondent submits that her termination of employment was both substantively and procedurally contention unfair. that she She was asserts that required to the Appellant's report to its headquarters following the termination of its contract with Chemelil Sugar Company, does not hold any water as she was dismissed in October 2023, whereas the contract with Chemelil Sugar Company ended in February 2024. The Respondent therefore submits that she discharged the burden of proving the fact of termination under section 47(5) of the Employment Act, while the Appellant failed to establish the reason for the termination or demonstrate compliance with the requisite procedure under sections 41 and 43 of the Act. She particularly points out that she was neither subjected to a disciplinary hearing nor served with a notice to show cause. In support of her position the Respondent relies on Walter Ogal Anuro v Teachers Page 6 of 12

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Service Commission [2013] eKLR, which underscored the requirement of substantive justification and procedural fairness in order for termination of employment to be considered fair. She also relies on Mary Chemweno Kiptui v Kenya Pipeline Company Limited [2014] eKLR, for the proposition that section 41 of the Employment Act is couched in mandatory terms and that failure to comply with its requirements renders a dismissal unfair. In view of the foregoing, the Respondent reiterates that the Trial Court's finding was sound and should be upheld. 11. As regards the remedies awarded, the Respondent submits that the awards for notice pay, underpayment, house allowance, unpaid leave and compensation were supported by statute and uncontroverted evidence. She points out that the Trial Court declined to award claims that had not been proved, including overtime, unpaid off days and public holidays, demonstrating that it carefully and objectively evaluated the evidence before making its awards. On whether the appeal meets the threshold for appellate interference, the Respondent submits that the Appellant has failed to demonstrate any misapprehension of the evidence, Page 7 of 12

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misapplication of legal principles, or any other error warranting interference by this Court. She asserts that the appeal merely invites the Court to reach a different conclusion on the same evidence, which, without more, is insufficient to invoke this Court's intervention. In support of this proposition, reliance is placed on Selle & another v Associated Motor Boat Company Ltd & others [1968] EA 123, where the Court held that an appellate court should not interfere with findings of fact unless they are based on no evidence or stem from a misapprehension of the evidence. 12. On costs, the Respondent relies on section 27 of the Civil Procedure Act and submits that costs follow the event and should therefore be awarded to her. Consequently, she urges the Court to dismiss the appeal with costs. Disposition 13. On appeal a Court has to analyse the evidence noting it did not hear the parties and make allowance for that. In the case of Selle v Associated Motor Boat Co. Ltd [1968] EA 123 and restated in the case of Kenya Ports Authority Page 8 of 12

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v Kuston (Kenya) Limited [2009] 2 EA 212 where the Court of Appeal rendered itself as follows: "On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence." [Underline for emphasis] 14. It is trite that the responsibility of this Court is to rule on the evidence on record and not to introduce extraneous matters that were not dealt with by the parties in the evidence they presented before the Learned Magistrate at Tamu. 15. Having properly warned myself that I neither saw nor heard the Appellant nor the Respondent testify in trial, I have carefully evaluated the evidence the parties presented in the Page 9 of 12

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Trial Court, and which evidence and documents in support thereof, are before this Court and I have come to the following determination. 16. There was constructive dismissal as the non-payment of salaries for 3 months was a fundamental breach of the employment contract. In the case of Milton M. Isanya v Aga Khan Hospital Kisumu (supra), the Court held that constructive dismissal occurs where an employer creates a hostile working environment or otherwise frustrates an employee. In my considered view, the Learned Magistrate properly evaluated both the pleadings and the evidence on record and correctly concluded that the Respondent had been constructively dismissed. The Learned Magistrate therefore did not err at all in holding that there was constructive dismissal and awarding compensation for the same. 17. The only issue that gives the Court pause is the limitation of actions in terms of section 89 of the Employment Act in respect of continuing injury. The periods outside the window for preferring a claim for continuing injury would of necessity Page 10 of 12

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fail. The Learned Magistrate after hearing the parties and considering the evidence and the law awarded unpaid leave days, unremitted salary, underpayment of wages and house allowance. I do not discern any error in the way the Learned Magistrate disallowed some claims and allowed others. For instance, the Learned Magistrate declined to make any awards for unpaid holidays and off days. 18. The only error the Learned Magistrate fell into was minor. It was on the computation of the sum payable to the successful Respondent. In this case, the amounts due bearing in mind the limitation period imposed by section 89 of the Employment Act would be limited to a period of 1 year for unpaid leave days, unremitted salary, underpayment and house allowance. As noted before, upon considering the evidence adduced, the prayers for payment of unpaid public holidays and unpaid off days were disallowed. In addition, there was a rejection of the payment of sums claimed under all the heads the Respondent was successful under with the Learned Magistrate allowing some and disallowing some of the claims as tabulated in the memorandum of claim. I find nothing wrong with the approach taken save for the Page 11 of 12

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calculations as adverted to in preceding paragraphs of my judgment. The final result is that the Appeal only succeeds to the extent that the Judgment and decree of the Trial Court is amended in as far as the following awards: a. Kshs. 17,151.23 as unpaid leave days, b. Kshs. 36,935.90 as underpayment, and c. Kshs. 24,665.39 as house allowance. 19. I uphold the decision in respect of all unaffected aspects of the claim including the award of compensation in the sum of Kshs. 58,036.20 ordered by the Learned Magistrate in this case as well as the award of costs and interest as per the Judgment of the Court at Tamu. There will be no order as to costs on this Appeal meaning that parties will bear their own costs for the Appeal before me. It is so ordered. Dated and delivered at Kisumu this 21st day of September 2026 Nzioki wa Makau, MCIArb. JUDGE Page 12 of 12

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