Medalion Steakhouse Limited v Francis Musyoka Samuel

ii. Finding that the Respondent was entitled to leave pay, public holidays and overtime without any evidence. iii. Trial court erred in finding there was a continuing injury thereby led to irregular and excessive award in favour of the Respondent above without proof of the same while relying on Respondents allegations which were false and without proof while misconstruing the obligations of the Appellant on the burden of proof under the Employment Act. 2. The Appellant therefore prayed that the appeal be allowed and the Learned Magistrate’s Judgment and Decree be set aside and the Respondent’s claim be dismissed with costs. 3. The Appeal was disposed of by written submissions. APPELLANT’S SUBMISSIONS 4. The Appellant’s Advocates Kuloba Wasike & Co. Advocates filed written submissions dated 20th January, 2026 and on the issue of whether the learned magistrate erred in awarding compensation for leave, house allowance, public holidays and overtime without evidence, counsel submitted that the Appellant never terminated the Respondent’s employment. That he resigned and chose to leave employment on his own volition. That the separation was cordial and the Respondent even recommended someone to take over his position. 5. Counsel submitted that the court was right in its judgment to dismiss the claim for unfair termination but the court despite JUDGMENT APPEAL NO. E189 OF 2025 2

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dismissing the claim awarded him other claims. That the claims of overtime and public holidays were mere allegations which the Respondent went to the internet and downloaded all public holidays in Kenya and claimed without any evidence that he worked during all the public holidays in the three years. 6. Counsel submitted that no evidence of public holidays was produced yet the court relied on secondary evidence without the Respondent complying with requirements of sections 68 and 69 of the Evidence Act on admissibility of secondary evidence. That this required the evidence of overtime to be only records kept by the Appellant relating to overtime and at no time did the Respondent seek the production of the records of overtime as required under section 69 of the Evidence Act. 7. Counsel relied on the case of Aluoch v Kenya Ports Authority & Another (2025) KEELRC 1756(KLR) on the issue of production notice to a party who has control of documents to be produced in court for its inspection. That at no time did the Respondent seek the Appellant to produce for inspection, documents recording attendance at work and overtime over the alleged period. That the trial court erred by relying on secondary evidence on the claim of public holidays and overtime without proof of complying with the law and the same claim must be set aside. 8. Counsel submitted that it was upon the Respondent to do discovery under the law and not to ambush the Appellant with claims and evidence that was not sustainable. Reliance was placed on the case of Concord Insurance Co. Ltd versus JUDGMENT APPEAL NO. E189 OF 2025 3

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NIC Bank Limited (2013) eKLR where the court relied on Halsbury’s Laws of England Vol.13 on this assertion. 9. On the claim for house allowance for 57 months awarded to the Respondent, counsel submitted that the same was irregular as the Respondent’s salary was consolidated to include house allowance. That the claims of 57 months were time barred by dint of section 90 of the Employment Act. That the Respondent went on leave regularly and never worked overtime as they worked in shifts at the restaurant. That the same claims for 57 months were time barred by dint of section 90 of the Employment Act. 10. It was submitted that the trial court awarded the Respondent leave of Kshs 57,491/=, house allowance of Kshs 147,834/=, public holidays of Kshs 77,916.08/= and a whooping Kshs 609,466.41/= for overtime despite there being no evidence adduced for these items claimed against the law. The trial court erred by finding that there was continuing injury hence awarding the Respondent excessive awards above without proof. 11. Reliance was placed on sections 107 & 108 of the Evidence Act on whoever asserts must prove and section 47(5) of the Employment Act on respective burdens of proof. That the above claims should be dismissed as there was no evidence to prove the same. 12. On the issue of whether the trial magistrate erred in dismissing only part of the claim instead of dismissing the entire claim counsel submitted that the court in its judgment JUDGMENT APPEAL NO. E189 OF 2025 4

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having held that there was regular termination and dismissing the claim for unfair termination the court did not need to look at other vexatious items claimed by the Respondent. The claim should have been dismissed in its entirety. Reliance was placed on among others, the case of Julius Kyalo Malonza Ruth Osolo t/a Eraeva Catering Services (2021) eKLR on this assertion. RESPONDENT’S SUBMISSIONS 13. The Respondent’s Advocates Onesmus Masua & Co. Advocates filed written submissions dated 5 th March, 2026 and on the issue of whether the trial magistrate erred in awarding compensation for leave, house allowance, public holidays worked and overtime worked counsel submitted that the learned magistrate carefully analysed the evidence before the court and issued a very comprehensive judgment. That this court as the 1st Appellate court has a duty to analyse the evidence presented before the trial court. 14. On leave encashments of Kshs 57,491/= counsel submitted that the award was capped to 3 years pursuant to the authority of Charles Kariuki Mwangi v Inter-Security Services Limited. That the trial court correctly relied on section 74 of the Employment Act which is coached in mandatory terms that where there is a dispute filed before the court by an employee challenging the non-payments of any dues such record must be produced by the employer. The trial court found that where the JUDGMENT APPEAL NO. E189 OF 2025 5

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employer files defence and fails to submit such records the defence filed is left bare. 15. On annual leave counsel relied on section 28 of the Employment Act which provides for leave at 21 days per year. That after the Respondent alleged that he did not go on leave it was upon the Appellant to produce records to demonstrate the contrary in view of section 10(6) and (7) when section 9 of the Employment Act required the contract to be reduced into writing. Reliance was placed on the case of Matsasho v Newton (Cause 9 of 2019) 2022 KEELRC 1554(KLR (29 July 2022) Judgment where it was held that leave entitlement was not affected by the circumstances the Claimant left employment. 16. On the claim for house allowance which was capped by the court at three years counsel relied on section 31 of the Employment Act which provided for house allowance and the trial court correctly awarded the Respondent the same. That the Appellant did not discharge their legal obligation provided by section 74 of the Employment Act. Reliance was placed on the case of Grain Pro Kenya Inc. Ltd v Adrew Waithaka Kiragu(2019) eKLR that the court cannot rewrite parties’ contract and housing allowance should be indicated as consolidated if not housing allowance should be allowed by the court. 17. Counsel submitted that the Respondent swore an affidavit that the agreed net pay was Kshs 25,000/ exclusive of housing allowance. That the Appellant never gave him a written JUDGMENT APPEAL NO. E189 OF 2025 6

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contract which was a neglect of their duty. Housing allowance was therefore not paid to the Respondent as his pay was basic pay not consolidated. Reliance was placed on the case of Anna Yonemura v Liwa Kenya Trust and Kedhihia Workers v B.O.G Maseno School (2013) eKLR where it was held that 15% was reasonable percentage as house allowance. That the Kshs 147,834/= awarded by the court was reasonable. 18. On the public holidays worked of Kshs 77, 916.08/= counsel submitted that the trial court correctly awarded this claim and capped it at three years as per above case of Charles Kariuki Mwangi. That the Respondent worked on all public holidays and the number of public holidays was itemised on the memorandum of claim which evidence was never controverted hence remained unchallenged. That the Appellant did not avail to the court the work attendance register or muster roll to contradict the Respondent’s evidence and as a result the trial court correctly awarded 37 public holidays between June 2020 and June 2023. 19. On the claim for overtime allowance of Kshs 609,466.41/= counsel submitted that it was the Respondent’s case that he worked from 11.00am in the morning up to 10.30 pm at night in the Appellant’s restaurant. The Appellant did not rebut the said evidence either through it witness or through documentary evidence. That from 11.00 am to 10.30 pm was 11 hours 30 minutes hence overtime of 3 hours, 30 minutes. That the trial court awarded the amount which was capped at three years. JUDGMENT APPEAL NO. E189 OF 2025 7

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DETERMINATION 20. The court has considered the pleadings and submissions filed by the both parties herein and reiterates that the principles which guide this court in an appeal from a trial court are now well settled. In Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, the same stated with regard to the duty of the first appellate court; “This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way” 21. In this case, the Judgment of the trial court was that the court found the Respondent not to have been unfairly terminated as the separation was cordial but awarded terminal dues in terms of leave encashments of Kshs 57,491/=, house allowance of Kshs 147,834/=, public holidays worked Kshs 77,916.08/= and overtime worked of Kshs 609,466.41/= which totalled to Kshs 892,707.49/= together with costs and interests from filing of the suit. The Appellant was to issue a certificate of service to the Respondent. 22. The Appellant was aggrieved by the trial court’s award of the terminal dues to the Respondent and fronted eight grounds of JUDGMENT APPEAL NO. E189 OF 2025 8

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Appeal which this court finds can be consolidated in to a single issue appeal of:a. Whether the trial court erred by awarding the Respondent his terminal dues despite dismissing the claim for unfair termination. 23. The Appellant alleged that the court after finding that the Respondent was not unfairly terminated ought to have dismissed the claim in its entirety. However as observed by the trial court, there are dues awardable to the employee irrespective of how they left employment. The employment courts have repeatedly held that those terminal dues are payable even if the termination was fair or unfair as these dues are an employee’s statutory dues. The Respondent’s salary was Kshs. 27,376.67/= as held by the trial court which was the basic pay. 24. On the awards of overtime, house allowance, public holidays worked and unpaid leave the court capped the awards to 3 years preceding the dismissal while relying on section 90 of the Employment Act. The court finds that the trial court took a wrong interpretation of the said section despite correctly JUDGMENT APPEAL NO. E189 OF 2025 9

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finding that the same were continuing injuries which must be filed within 12 months after cessation of employment. The courts have in a number of cases clarified this section of the law to mean that for continuing injuries what the Claimant needs to do is file their claim 12 months after cessation of employment in order to claim the continuing injuries irrespective of the number of years it has taken. 25. In the Court of Appeal decision in The German School Society & another v Ohany & another (Civil Appeal 325 & 342 of 2018 (Consolidated)) [2023] KECA 894 (KLR) (24 July 2023) (Judgment) while relying on India decisions the court had this to say:Normally, a belated service related claim will be rejected on the ground of delay and laches or limitation. One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service-related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. Borrowing from the excerpts reproduced above and considering that the respondent continued to work under the same circumstances, we find and hold that the breach complained of was of a continuing nature, capable of giving rise to a legal injury which assumes the nature of a continuing wrong. It follows that the appellant’s argument that the claims were time barred fails. On the contrary, the said claims fall within the ambit of a continuing wrongs contemplated under section 90. JUDGMENT APPEAL NO. E189 OF 2025 10

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26. The court therefore finds that the Respondent resigned in June, 2023 and the claim was filed in December, 2023 hence within 12 months period anticipated by section 90 of the Employment Act. The same if claimed within time could not therefore be limited to three years as the trial court did. The Respondent was entitled to claim for the 4 years 9 months he worked with the Appellant from October 2018 to June 2023. 27. On the claim for unpaid leave the Appellant alleged that the Respondent utilized his leave days but did not produce any documentation that the Respondent proceeded on his leave since the Appellant failed to reduce the contract into writing as required by section 9 of the Employment Act and it had the burden as illustrated by section 10(6) and (7) to disprove allegations of the Respondent. 28. The Appellant was mandated by section 74 of the Employment Act to produce employment records showing that the Respondent took his leave. The Appellant only claimed that he utilized the same. This court therefore agrees with the trial court that the Respondent was entitled to his unpaid leave but for 4 years 9 Months not the three years as it was capped. JUDGMENT APPEAL NO. E189 OF 2025 11

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29. On the issue of housing allowance the Appellant did not produce any evidence that the Respondent’s salary was consolidated. This is a requirement under section 31 of the Employment Act and this court upholds the same award but for the 57 months worked not the capped period of 3 years. As stated above it was the responsibility of the Appellant to produce a written contract which would show the salary was consolidated. 30. On the claim for overtime and public holidays the trial court capped the same to three years which was against the law so long the same were claimed within the 12 months period. The Respondent alleged that he worked from 11.am to 10.30 pm which was 11 hours 30 minutes hence overtime of 3 hours 30 minutes. The Appellant apart from stating that the Respondent worked in shifts never produced documents like attendance registers or muster roll to show the period worked overtime or the public holidays. This court therefore finds that the Respondent was entitled to overtime and public holidays as held by the trial court since there was no evidence to the contrary. JUDGMENT APPEAL NO. E189 OF 2025 12

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31. On the calculations of the overtime the normal overtime is 1.5% the hourly rate as observed by the trial court but not on three years but the 57 months worked as calculated by the Respondent in his claim. 32. As for the claim of public holidays the same is not capped to three years as held by the trial court but between October 2018 to June 2023 public holidays as illustrated by the Respondent in his claim. 33. In the upshot the Appeal is found unmerited and is hereby dismissed with costs to the Respondent while varying the awards made by the trial court which were capped at three years to the period worked of 4 years and 9 months as follows: a. Leave pay Kshs 511,909.06/= b. Overtime pay Kshs 1,024,069/= c. House allowance Kshs 234,070.52/= d. Public Holidays worked Kshs 145,293.30/= TOTAL: KSHS 1,915,341.88/= JUDGMENT APPEAL NO. E189 OF 2025 13

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34. It is so ordered Dated at Nairobi this 22nd day of September, 2026 Delivered virtually this 22nd day of September, 2026 Abuodha Nelson Jorum Presiding Judge-Appeals Division JUDGMENT APPEAL NO. E189 OF 2025 14

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