Chakra Company Ltd v Patrick Musalia

Memorandum of Appeal dated 11th March 2026 contending that the Learned Magistrate erred in law and fact by: (1) Failing to properly evaluate the evidence on record, thereby arriving at a wrong conclusion that the Claimant's employment was terminated. (2) Misapplying section 47(5) of the Employment Act, which places the burden of proving unfair termination on the employee before the employer is called upon to justify dismissal. (3) Disregarding documentary evidence, including the leave request letter and clearance form, which confirmed the Claimant was on unpaid leave and expected back on 26th February 2025. (4) Failing to appreciate that the Respondent had applied for leave and had not exhausted the leave period nor completed the internal human resource clearance procedures at the time he instituted the suit. (5) and Treating oral exchanges with the store officer Duty Officer as termination, Page 2 of 13 despite clear

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testimony that only the Human Resource office had authority to dismiss employees. (6) Awarding remedies for unlawful termination when no termination was proven and the Claimant failed to discharge his evidentiary burden under section 107 of the Evidence Act. 2. On the basis of these grounds, the Appellant urges the Court to set aside the Trial Court's judgment and allow the appeal with costs. 3. The appeal was canvassed by way of written submissions. Appellant's Submissions 4. In support of the appeal the Appellant identifies the following issues for determination: (a) Whether the Respondent proved that his employment was terminated by the Appellant. (b) Whether the learned Trial Magistrate erred in law and fact in finding that the Respondent was unlawfully terminated and in awarding the remedies granted; and Page 3 of 13

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(c) Who should bear costs of the appeal. 5. At the outset, the Appellant urges the Court, as a first appellate court, 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. In support of this proposition, it relies on Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123 and Abdul Hammed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270. 6. On whether the Respondent proved termination of his employment, the Appellant submits that he failed to discharge the burden imposed by section 47(5) of the Employment Act. It contends that the employee must first establish that termination or wrongful dismissal occurred before the evidential burden shifts to the employer to justify the reasons and circumstances of the termination. Reliance is placed on Kenya Revenue Authority v Gitahi & 2 others [2019] KECA 300 (KLR), where the Court emphasized that an employee must first prove the fact of Page 4 of 13

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termination before the employer is required under sections 43 and 45 of the Employment Act to justify the termination. 7. The Appellant submits that the Respondent did not produce a termination Resource letter, department communication or other from the documentary Human evidence demonstrating that his employment had been brought to an end. It asserts that on the contrary the Respondent applied for unpaid leave but failed to report back after his leave expired. The Appellant draws attention to RW1's testimony to the effect that the Respondent would only be replaced by another guard during the duration of his leave, which evidence was corroborated by RW2. With RW2 further testifying that the Appellant attempted to contact the Respondent after he failed to resume duty. For the foregoing reasons the Appellant submits that the Trial Magistrate erred in treating the exit form as conclusive evidence of termination without considering the evidence explaining its purpose. It submits that the exit clearance forms were standard for anyone leaving the workplace including those proceeding on leave and did not signify termination of Page 5 of 13

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employment. It further submits that surrender of the uniform was merely an administrative requirement for guards proceeding on prolonged leave and did not, of itself, signify termination. As concerns the Respondent's reliance on his conversations with a store officer, and the Duty Officer the Appellant submits that they did not amount to lawful termination, since those officers lacked authority to terminate employees. It maintains that only the Human Resource Department was vested with such authority. Relying again on Kenya Revenue Authority v Gitahi & 2 others [2019] KECA 300 (KLR), the Appellant submits that the Respondent did not cross the evidentiary threshold of proving termination and that the Trial Magistrate consequently erred by requiring the Appellant to justify a termination that Appellant invokes had not first been section 107 of established. The the Evidence Act, submitting that the Respondent bore the burden of proving termination. It argues that, upon a proper re-evaluation of the evidence in accordance with Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123, the evidence shows that the Respondent was on approved Page 6 of 13

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unpaid leave, failed to resume duty thereafter, and instituted proceedings before the Appellant could commence disciplinary proceedings for desertion. It therefore submits that termination was not proved and that the claim for unfair termination and the remedies flowing therefrom had no legal foundation. 8. Concerning the second issue, the Appellant submits that since the Respondent failed to prove termination, the question whether the termination was fair or unfair did not arise. It relies on sections 43(1) and 45(2) of the Employment Act, that only require an employer to prove the reasons for termination and fairness of the termination procedure after establishment of termination. It also places reliance on Kenya Revenue Authority v Gitahi & 2 others [2019] KEСА 300 (KLR), in which it was underscored that the burden imposed by section 47(5) of the Employment Act is sequential, with an employee proving existence of dismissal before the employer can be called upon to justify reasons for dismissal. Consequently, the Appellant submits that the award of compensation for unfair termination and notice pay Page 7 of 13

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was undeserved because both remedies depended on proof of unlawful termination. It relies on Nation Media Group Limited v Munene [2025] KECA 114 (KLR) for the proposition that compensation for unfair termination is intended to compensate an employee for wrongful loss of employment and is awarded at the court's discretion upon consideration of the guidelines under section 49 of the Employment Act. 9. On costs, the Appellant submits that costs should follow the event pursuant to section 27 of the Civil Procedure Act. It consequently prays that the appeal be allowed with costs. Respondent's Submissions 10. On his part the Respondent identifies the issues for determination as: (i) Whether the trial court erred in its decision; and (ii) 11. Who should bear costs of the suit. On the first issue the Respondent urges the Court be guided by its duty as a first appellate court as enunciated by section 78 of the Civil Procedure Page 8 of 13 Act and Selle v

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Associated Motor Boat Co. Ltd (1968) EA 123, to reevaluate the evidence tendered before the Trial Court and arrive at its own independent conclusion, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. 12. On the first issue, the Respondent submits that the Appellant's contention that he voluntarily left employment after applying for leave is unfounded. He maintains that, upon applying for leave, he was instead issued with an exit form indicating that the reason for his exit was resignation, yet he had not resigned. The Respondent maintains that the exit form speaks for itself and constitutes evidence that his employment had been terminated. He argues that, had the Appellant genuinely approved his leave, the exit form would have indicated the number of days granted and the dates on which the leave commenced and ended. He notes that it contained no such particulars. In this regard, he relies on RW2's evidence in cross-examination that the exit form did not specify the duration of the alleged leave and instead Page 9 of 13

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described the nature of the Respondent's exit as resignation, despite the Respondent having applied for leave. 13. On desertion the Respondent submits that the same was not proven. He contends that the Appellant made no meaningful attempts to reach him after he failed to resume duty. In support of this contention, he refers to RW2's evidence that the contacts of the Respondent's wife and brother were contained in the contract, yet no attempt was made to contact either of them. On the basis of the foregoing, the Respondent submits that the Trial Magistrate properly evaluated the evidence and correctly found that his employment had been unfairly and unlawfully terminated. He consequently maintains that he was entitled to the reliefs awarded by the Trial Court. 14. On costs, the Respondent urges the Court to award him the costs of the suit pursuant to section 27 of the Civil Procedure Act, calculated from the date of the Trial Court's judgment. Disposition Page 10 of 13

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15. As a first appellate court, this Court is required 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. This is on the holding in Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123 and Abdul Hammed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270. 16. The Court distils that given the major issue for determination is how the employment was terminated, there has to be an enquiry into how the Respondent left the Appellant's employ. When an employ is to go for leave, a leave request is made, a leave form is filled or something similar. Leave sought is defined – a few days, weeks or even a month as is appropriate. Once the request is made, an approval is given so as to permit the worker to proceed on leave. 17. In the case before the Learned Magistrate, the employee in his application sought 21 days of leave from 6 th February 2025 to 26th February 2025 ostensibly to handle a private Page 11 of 13

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family matter. The Respondent says he was never called after the leave period as he thought he had been terminated as the employer had given directives any employee taking more than 2 weeks leave would be deemed to have resigned. Whereas the return of uniform is something the Court finds odd, as uniforms are personal apparel, causing the Court to wonder why the uniform was sought, upon applying for leave, the Respondent was instead issued with an exit form indicating that the reason for his exit was resignation, yet he had not resigned. The exit form speaks for itself and constitutes evidence that the employment of the Respondent had been terminated. Had the Appellant genuinely approved his leave, the exit form would have indicated the number of days granted and the dates on which the leave commenced and ended. The Court notes that the form did not contain such particulars. 18. The foregoing is ample that the Appeal fails and is dismissed albeit with no order as to costs. The Judgment of the Learned Trial Magistrate is affirmed. It is so ordered. Page 12 of 13

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Dated and delivered at Kisumu this 23rd day of September 2026 Nzioki wa Makau, MCIArb. JUDGE Page 13 of 13

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