Alfred Murunga Wekesa & Abigael Nafula Sifuna (Suing as the legal Representative of the Estate of the late Wycliffe Misiko Wekesa) v The Board of Management Uhuru High School

evidence on record in support of the Appellant’s case. 2. The learned Magistrate erred in law and fact in declining to make an award of notice pay, compensation for unlawful termination, underpayment, off duty dues, public holiday dues and normal overtime dues in favour of the Appellant despite overwhelming evidence in support of the Appellant’s case. 3. The learned Magistrate erred in law and fact in finding the Appellant had not proved his claim of notice pay, compensation for unlawful termination, underpayment off duty dues, public holiday dues and normal overtime dues to the required standards, contrary to the evidence on record. 4. The learned Magistrate erred in law and in fact in failing to consider the Appellant’s submissions. 2. The Appellant prays that: 1. The judgment/decree of the Honourable Court dated 1st April 2025 be reviewed and or set aside. 2. Costs of this appeal be borne by the Respondent. 3. The appeal was disposed of by way of written submissions. NKR ELRC APPEAL NO. E021 OF 2025 JUDGMENT 2 | PAGE

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Appellant’s submissions 4. The Appellants submitted that the deceased, employed as a daytime security guard, was verbally dismissed while indisposed without any warning, show-cause letter, or evidence of efforts to contact him, contrary to section 107 of the Evidence Act. The court found the respondent failed to prove desertion, citing the case of Stanley Omwoyo Onchweri v Board of Management Nakuru YMCA Secondary School [2015] KEELRC 1130 and James Okeyo v Maskant Flower Limited [2015] KEELRC 1121. The Appellants also relied on section 41(1) of the Employment Act, which mandates fair procedure and representation, noting the claimant was denied a disciplinary hearing, rendering the termination substantively and procedurally unfair. Under Sections 43 and 45(2) of the Employment Act, the employer bore the burden of justifying termination, a reverse burden affirmed in Peter Otabong Ekisa v County Government of Busia [2017] KEELRC 200. The Appellants therefore claimed Kshs.172,813.30/= for unlawful termination, citing National Bank of Kenya v Mutonya [2019] KECA NKR ELRC APPEAL NO. E021 OF 2025 JUDGMENT 3 | PAGE

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404 and Florence Wambui Gitau v Eclipse International [2019] KEELRC 1765. 5. The Appellants further argued that the deceased was denied notice and one month’s salary in lieu of notice, contrary to sections 35(1)(c) and 36 of the Employment Act. Evidence also showed that he was never granted leave, entitling him to Kshs.75,971.05/=, and worked daily from 5:00 a.m. to 7:00 p.m. without overtime pay, warranting Kshs.864,896.10/=, supported by Kathra Hussein Noor v Kaderdina Hajee Essak Limited [2016] KEELRC 509, which cited the case of David Wanjau Muhoro v Ol Pajeta Ranching Limited [2014] eKLR, which held that salary arrears and underpayments are continuing defaults under section 90 of the Employment Act. 6. The Appellants also demonstrated gross underpayment contrary to Legal Notices No. 112 of 2017 and No. 2 of 2018, seeking Kshs.20,606.20. Additionally, the deceased worked 41 public holidays and was denied off-duty compensation, entitling the appellants to Kshs.131,240.75/= and Kshs.538,157.55/= respectively. NKR ELRC APPEAL NO. E021 OF 2025 JUDGMENT 4 | PAGE

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7. Finally, the Appellant sought costs, relying on Republic v Rosemary Wairimu Munene, Ex-parte Applicant v Ihururu Dairy Farmers Co-operative Society Ltd, and urged the court to allow the appeal as prayed. Respondent’s submissions 8. The Respondent submitted that the Appellants failed to prove his case at the trial court, was lawfully terminated for absconding duty, and never notified the employer of his illness. It was further contended that the deceased had been paid for two years without working, and no sufficient evidence was tendered to justify interference with Hon. Soita’s judgment. Reliance was placed on Green & Another v Kazungu & 2 Others [2022] KECA 991 (KLR), where the Court of Appeal reiterated the principles for setting aside judgments, as earlier established in Selle v Associated Motor Boat Co. Ltd [1968] EA 123. The court held that appellate interference is only warranted where the trial judge misdirected himself in law, misapprehended the facts, considered irrelevant matters, failed to consider relevant ones, or reached a plainly wrong decision. NKR ELRC APPEAL NO. E021 OF 2025 JUDGMENT 5 | PAGE

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9. The Respondent also cited United India Insurance Co Ltd v East African Underwriters (Kenya) Ltd [1985] KECA 39 (KLR) and Mwanasokoni v Kenya Bus Services Ltd & 3 Others [1985] KECA 82 (KLR), emphasizing that appellate courts should only interfere where findings are based on no evidence, misapprehension of evidence, or application of wrong principles. 10. The Respondent submitted that Hon. Soita correctly determined that the Appellant had absconded duty and was therefore not entitled to the reliefs sought, leading to dismissal of the suit; hence, the judgment was sound in law and fact and should remain undisturbed. Analysis and determination 11. Being the first appeal, the court must re-evaluate the evidence and come to a conclusion since it was not present when the evidence was adduced or see the witnesses as set out in Selle v Associated Motor Boat Co. Ltd [1968] 1. E.A 123 and Kenya Ports Authority v Kustron (Kenya) Limited [2011] KECA 98 (KLR). NKR ELRC APPEAL NO. E021 OF 2025 JUDGMENT 6 | PAGE

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12. Having considered the record of appeal, memorandum of appeal, and the rival submissions by both parties, the issue for determination is whether judgment by the trial court should be set aside or not. 13. In Walter Ogal Anuro V Teachers Service Commission [2013] KEELRC 386 (KLR) the court held that: “For a termination to pass the fairness test, it must be shown that there was not only substantive justification for the termination but also procedural fairness.” 14. In Munguti v Autopark International Limited [2025] KEELRC 411 (KLR) the court stated as follows: “As it is, the Respondent’s case was hinged on the claim that the Appellant absconded duty. Even so, it was bound to follow due process under the Employment Act. As stated herein, absence from work without permission constitutes one of the grounds for summary dismissal under Section 44(4) (a) of the Employment Act. Therefore, in the event the Appellant had indeed, absconded duty, the Respondent was enjoined to accord him a fair hearing NKR ELRC APPEAL NO. E021 OF 2025 JUDGMENT 7 | PAGE

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and subject him to the process contemplated under Section 41 of the Employment Act. In this case, the Respondent did not indicate, let alone suggest that it took the Appellant through a disciplinary process before letting him go. Indeed, and contrary to what the Respondent appears to be suggesting, an employment relationship does not automatically come to an end. There are procedural steps taken towards that end. The total sum of my consideration is that the Respondent terminated the Appellant’s employment unfairly.” 15. In Kenya National Private Security Workers Union v Granton Babz Security Limited [2023] KEELRC 1593, the court held that mere allegations of desertion are insufficient; the employer must prove the steps taken to trace the employee and issue notice of intended termination. Here, the respondent failed to prove desertion or comply with Section 41 of the Employment Act, despite claiming the grievant absconded duty. With nearly five years of employment and established communication channels, the respondent made no effort to contact NKR ELRC APPEAL NO. E021 OF 2025 JUDGMENT 8 | PAGE

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him. The court therefore found the termination unfair and contrary to Section 45 of the Employment Act, 2007, and proceeded to consider the reliefs due. 16. In this instant appeal, the deceased was employed by the respondent as a watchman. Following the recruitment of a new principal, the deceased’s salary was abruptly cut off, prompting him to seek an explanation at the school. The principal alleged that the deceased had deserted duty and terminated his employment, purporting to rely on Section 44(4)(a) of the Employment Act. The Respondent justified the dismissal on this basis, and the trial magistrate ultimately held that no case had been established, thereby dismissing the claim. 17. The Respondent defence is that the Claimant deserted employment and they deny they terminated him. In the Response, the Respondent asserted that the Claimant stopped going to work claiming he had a wounded leg. The principal then allowed him to go home and get healed. Clearly, he was literally terminated from employment because the school stopped remitting his salary. NKR ELRC APPEAL NO. E021 OF 2025 JUDGMENT 9 | PAGE

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18. The offence of desertion constitutes gross misconduct and this is well provided in Section 44(4) of the Employment Act. The court in the case of Kabusia Versus K.K. Security cause 709 of 2017 held that: “the defence of desertion/absconding places a burden on employer to demonstrate efforts made to notify the employee the intention to terminate their services on account of that reason. Case law has firmly established that an employer alleging an employee has absconded duty is required to show efforts made to reach out to the employee with a view to putting them on notice that termination of employment on this ground is being considered.” 19. Clearly, there is no evidence that the Claimant was invited for a disciplinary hearing and neither was he informed he was to be terminated on grounds of desertion. He was simply asked to go home so he could heal and his salary was stopped NKR ELRC APPEAL NO. E021 OF 2025 JUDGMENT 10 | P A G E

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20. The deceased was therefore unfairly terminated by the Respondent. While the Respondent traced him to Bungoma, it failed to comply with the mandatory safeguards under sections 41, 43, and 45(2) of the Employment Act, denying him a fair hearing and failing to establish just cause for dismissal. This omission strikes at the very core of procedural and substantive justice, underscoring the employer’s statutory duty to act lawfully before severing employment. The employer failed to comply and so the deceased was unfairly terminated. Therefore, the appeal succeeds. 21. The court having held that the appeal has succeeded, proceeds to award the following to the estate of the deceased: (a) One month salary in lieu of the Notice – Kshs.14,401/= 22. He had worked for the Respondent for close to eight years. Under Section 49(1)(c) of Employment Act the Appellant is awarded salary equivalent to 10 months amounting to Kshs.144,010/=. NKR ELRC APPEAL NO. E021 OF 2025 JUDGMENT 11 | P A G E

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23. The other prayers for underpayment, overtime, off duties and public holidays are not factually proved and court cannot grant awards in abstract. He who alleges must prove as provided in Sections 107, 108 and 109 of the Evidence Act. 24. The estate is awarded costs of the suit and interest on the total award amounting to Kshs.158,411/= at the rate of 14% per annum from date of judgment till full payment. Orders accordingly. Dated, Signed and Delivered virtually at Nakuru this 25th Day of September 2026. ANNA NGIBUINI MWAURE JUDGE ORDER In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on NKR ELRC APPEAL NO. E021 OF 2025 JUDGMENT 12 | P A G E

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15th March 2020 and subsequent directions of 21 st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE NKR ELRC APPEAL NO. E021 OF 2025 JUDGMENT 13 | P A G E

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