Norah Kerubo Tagiri v Kenyenya FCS Limited

Memorandum of Appeal dated 30th March 2026 contending that the Learned Magistrate erred in law and fact by: (1) Failing to fairly and/or properly analyze the evidence adduced by the Appellant regarding her thirty-one (31) years of service and the circumstances surrounding her termination. (2) Failing to take into consideration the Claimant's submissions and oral testimony in its entirety, particularly regarding the lack of a disciplinary hearing. (3) Failing to find that the Respondent breached the contract of employment and violated section 41 of the Employment Act Cap. 226 by terminating the Appellant without procedural fairness. (4) Failing to find that the Respondent bore the statutory burden of proof under section 43 and 45 of the Employment Act Cap. 226 to prove the reasons for termination and that if the same were fair. (5) Misdirecting himself on the issue of desertion, by failing to find that the Respondent had not strictly proved that the Appellant had abandoned her duty. Page 2 of 12

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(6) Dismissing the claim for 168 months of unpaid salary despite the Appellant's testimony that she remained in service without pay for the stated period and the records were in custody of the Respondent. (7) Failing to find that the Appellant was entitled to compensation for unfair termination, salary in lieu of notice, and service pay for the years worked. (8) Reaching the conclusion that the claim was devoid of merit without any sufficient cause or proper evaluation of the employment relationship. 2. On the strength of these grounds, she urges the Court to allow the appeal, set aside the Trial Court’s judgment and award her costs of the appeal. 3. The Appeal was canvassed by way of written submissions. Appellant’s Submissions 4. The Appellant submits, that the Trial Magistrate erred in finding that the Respondent had established a valid and fair reason for her termination. Relying on sections 43, 45 and 47(5) of the Employment Act, the Appellant submits that the Page 3 of 12

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employer bore the burden of proving the reason for termination and that the reason was valid and fair. Reliance is placed on Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR, Kenfreight (E.A.) Limited v Benson K. Nguti [2016] eKLR, and CFC Stanbic Bank Limited v Danson Mwashako Mwakuwona [2015] eKLR. 5. The Appellant submits that the Respondent failed to prove the alleged desertion of duty. She submits that RW1 admitted that the Respondent’s master roll showed her attendance on certain dates after the alleged commencement of desertion, including 3rd July 2021. The Respondent also failed to produce payroll and master-roll records in its possession, warranting an adverse inference. Further, the Respondent's witnesses gave contradictory accounts as to whether she attended the disciplinary meeting. The Appellant therefore submits that the Respondent failed to establish either absence without lawful cause or an intention to permanently abandon employment. Reliance is placed on Felistas Acheha Ikatwa v Charles Peter Otieno [2018] eKLR and Muthiani v Kuber Page 4 of 12

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Agencies Limited [2023] eKLR, citing Ronald Nyambu Daudi v Tornado Carriers Limited [2019], for the proposition that mere absence from duty does not constitute desertion and that an employer alleging desertion must demonstrate efforts to reach the employee and notify her that termination on that ground was under consideration. 6. On procedural fairness, the Appellant submits that the Respondent failed to comply with the mandatory requirements of section 41 of the Employment Act. She contends that although warning letters, a notice to show cause and minutes were produced, there was no evidence that she was invited to and afforded a proper disciplinary hearing, informed of her right to be accompanied, or given an opportunity to make representations before termination. Reliance is placed on Postal Corporation of Kenya v Andrew K. Tanui [2019] KECA, which sets out the minimum procedural safeguards under section 41; Kenfreight (E.A.) Limited v Benson K. Nguti [2016] eKLR; and Walter Ogal Anuro v Teachers Service Commission, [2013] eKLR, on the requirement that Page 5 of 12

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termination must satisfy both substantive and procedural fairness. The Appellant submits that the Respondent’s contradictory evidence on whether she attended the alleged disciplinary meeting further undermined its case. 7. On the monetary claims, the Appellant submits that the Trial Magistrate failed to properly evaluate the evidence and wrongly dismissed her claims for unpaid salary, terminal dues and compensation. She contends that the Respondent admitted being the custodian of her payroll and employment records but failed to produce them. Relying on sections 10(6) and 10(7) of the Employment Act and Protective Custody Limited v Omukuba [2023] KEELRC 2817, citing George Nyandiko v China Jiangxi International Kenya Limited [2016] KEELRC 839 (KLR), she submits that the employer bears the obligation to maintain and produce employment records and cannot benefit from their non-production. She therefore argues that the trial court wrongly placed the evidential burden upon her despite the Respondent’s failure to produce the relevant records. The Appellant further submits that, having found the termination lawful, the trial magistrate erroneously dismissed her claims for notice pay Page 6 of 12

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and compensation under section 49 of the Employment Act. She contends that she had served the Respondent for approximately 31 years, from 1991 to 2022, which was a material consideration in assessing compensation. She relies on Judicial Service Commission v Gladys Boss Shollei & another [2014] eKLR and CMC Aviation Limited v Mohammed Noor [2015] eKLR, on the requirement that the court exercise its discretion under section 49 judicially and consider the statutory factors under section 49(4). 8. As for service pay, the Appellant contends that the Respondent failed to produce records demonstrating that she fell within any statutory exclusion. She therefore urges the Court, upon re-evaluating the evidence, to allow the claim for unpaid salary, terminal benefits, notice pay, compensation and service pay. Finally, the Appellant submits that the Trial Magistrate erred in directing each party to bear its own costs. Respondent’s Submissions 9. The Respondent submits that the Appellant’s termination was lawful and fair, having been effected in accordance with Page 7 of 12

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sections 41, 43, 45 and 47(5) of the Employment Act. It contends that the Appellant deserted employment without lawful justification despite being issued with a warning letter and given an opportunity to resume duty, which she acknowledged receiving. The Respondent therefore maintains that the persistent desertion constituted a valid ground for summary dismissal. Reliance is placed on Kenya Electrical Traders & Allied Workers Union v Kenya Power & Lighting Co. Ltd, [2014] eKLR, where the Court held that an employer must establish a valid and fair reason for termination and follow a fair procedure. 10. The Respondent further submits that the Appellant failed to discharge the burden placed upon her by section 47(5) of the Employment Act, while the Respondent demonstrated both a valid reason for termination and compliance with the requisite procedure. It consequently urges the Court to uphold the Trial Magistrate’s finding that the termination was lawful and fair. On costs, the Respondent relies on section 27 of the Civil Procedure Act, submitting that costs are at the discretion of the Court and ordinarily follow the event. It Page 8 of 12

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therefore urges the Court to find the appeal without merit, uphold the judgment of the subordinate court, save for the issue of costs, and dismiss the appeal with costs to the Respondent. Disposition 11. The duty of a first appellate court is 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. See 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 EACA 270. 12. In this case the employee was terminated and seeks the payment of the sums alleged to be due to her. The Appellant was dismissed for her frequent desertion of employment. There is evidence that the last straw that broke the camel’s back was her disappearance which led the Respondent to initiate the termination. The Appellant having deserted her employment without lawful justification in spite of being issued with a warning letter and being offered an opportunity Page 9 of 12

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to resume duty, which she acknowledged receiving, the Appellant refused to resume work. In the circumstances, how was the Respondent required to conduct a section 41 hearing? Where an employee absconds from work and makes themselves unavailable for the disciplinary process, the employer cannot be faulted for not having conducted a hearing. This is because for a hearing to take place, an employee must be at hand to face the charges. If an employee runs away from the employer and declines to return, the desertion is itself ipso facto sufficient to found a dismissal. In my considered view, the Respondent was therefore relieved of the burden to conduct a hearing since none was feasible granted the persistent desertion of the Appellant which constituted a valid ground for summary dismissal. 13. There is the allegation of non-payment of salary for 168 months. The period amounts to 14 years. It was the Appellant’s case that she worked for the Respondent for a total of 31 years. If indeed this is true, it is inconceivable the Appellant worked for 31 years and was only remunerated for Page 10 of 12

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17 years total. It does not compute. How did the Appellant fail to seek redress for this manifest injustice? How come there is no record of the complaint of non-payment of salaries? In my view, this was puffing, a mere allegation made in the hope that a court would be swayed by the allegation that there was no payment of salary for a whopping 168 months. This claim fell and is proof there was no merit in the claim by the Appellant. The Court returns that the Learned Magistrate did not fall in any error by dismissing the claim. He also was generous to the unsuccessful litigant by letting the parties each bear their own costs. 14. The foregoing is ample to demonstrate that the appeal before me lacks merit and ought to be dismissed. The Appellant has persisted on an exercise that would only result in one outcome – dismissal of the appeal. Costs on appeal will therefore be borne by the Appellant. Appeal dismissed with costs. It is so ordered. Dated and delivered at Kisii this 29th day of September 2026 Page 11 of 12

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Nzioki wa Makau, MCIArb. JUDGE Page 12 of 12

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