Saha Magongo Mwayaona v China State Construction Engineering Corporation Limited

3. The Appellant averred that the Respondent terminated his employment without prior warning, without justifiable cause and in disregard of the prescribed procedure under the Employment Act. 4. It was the Appellant’s case that he was neither furnished with the reasons for the termination of his employment nor invited to a disciplinary meeting. He further asserted that he was not accorded an opportunity to defend himself against the allegations, if any, that may have formed the basis for the termination of his employment. 5. The Appellant further averred that he was not paid a house allowance throughout the period of his employment. 6. On the basis of the foregoing, the Appellant sought one (1) month’s salary in lieu of notice; compensation for unlawful termination of employment; payment of house allowance at the rate of 15% of his gross salary; two (2) months’ salary in lieu of annual leave; gratuity for the period worked at the rate of 15% of his annual salary; an order directing the Respondent to issue him with a certificate of service; interest; and costs of the suit. 7. In its Amended Statement of Response dated 11th July 2024, the Respondent admitted the existence of the employment relationship. It stated that it had 2

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notified the Appellant of challenges relating to land acquisition, which made it difficult to carry out the work, and that there were instances when the Appellant could not work until the requisite land had been acquired. The Respondent averred that the Appellant willingly agreed to work under those terms. 8. The Respondent further averred that the Appellant remained its employee until 16th June 2023, when he absconded duty and ceased reporting to work despite several reminders to resume duty. 9. The Respondent contended that the Appellant had failed to demonstrate any wrongdoing on its part in the performance of its obligations under the employment relationship. 10.In light of the foregoing, the Respondent urged the Trial Court to dismiss the Appellant’s suit with costs. 11.During the trial on 29th August 2024, the Appellant testified in support of his claim, while the Respondent tendered oral evidence through its Environmental Health and Safety Officer, Brian Makori Nyabuto. Upon conclusion of the oral hearing, both parties filed written submissions. 12.Upon considering the pleadings, evidence and submissions on record, the learned Trial Magistrate delivered judgment on 10 th September 2025. The Court 3

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found that the Appellant had not established that his employment was terminated by the Respondent on 25th January 2019. Rather, the Court found that he remained in the Respondent’s employment until June 2023, when he absconded duty. Accordingly, the Court found that the Appellant was not entitled to the reliefs sought and dismissed the claim in its entirety. 13.Aggrieved by the judgment of the Trial Court, the Appellant lodged the present Appeal. The Appeal 14.In the Memorandum of Appeal dated 10th October 2025, the Appellant challenges the judgment of the Trial Court on the following three (3) grounds: 1) The Learned Magistrate erred in law and in fact in failing to find that the Respondent wrongfully terminated the Appellant’s employment. 2) The Learned Magistrate erred in law by finding that the Appellant commenced his claim before the lower court whilst he was still in employment, following which he absconded duty for more than four years. 3) The Learned Magistrate erred in law by finding that the Respondent rehired the Appellant and therefore he is not entitled to the reliefs sought in the Memorandum of Claim. 4

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15.Accordingly, the Appellant prays that the Appeal be allowed with costs; that the judgment of the learned Magistrate be set aside; and that the order dismissing his claim be substituted with an order allowing the claim with costs. The Submissions 16.The Appeal was canvassed by way of written submissions. On behalf of the Appellant, it was submitted that where an employer alleges that an employee has absconded duty, the employer bears the responsibility of demonstrating the steps taken to establish the employee’s whereabouts. In support of this proposition, the Appellant relied on the case of Jumaa Mangaro v China Jiangxi International Kenya Limited (2020) eKLR. 17.In the same vein, the Appellant submitted that the Respondent had failed to demonstrate any steps it took to trace or otherwise establish his whereabouts. 18.The Appellant further submitted that the Respondent did not produce the minutes of any disciplinary hearing. To this end, he urged the Court to find that he was neither issued with a notice to show cause nor accorded an opportunity to be heard prior to the alleged termination of his employment. 5

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19.The Appellant further contended that the Trial Court failed to appreciate that the burden of producing or proving the terms of employment lay with the Respondent as the employer. 20.It was further submitted that the Appellant was not issued with a notice of redundancy or termination of employment. The Appellant argued that the Respondent had, in addition, failed to demonstrate that it considered his skill, ability and reliability before terminating his employment. In support of this submission, reliance was placed on the case of Edwin Ochar & 3 others v Habo Group of Companies & 2 others [2021] KEELRC 2003 (KLR). 21.On behalf of the Respondent, it was submitted that the learned Trial Magistrate did not find that the Appellant had been unlawfully declared redundant. Rather, the Court found that the Appellant had failed to establish that there had been a redundancy or termination of his employment in the first place. 22.The Respondent further submitted that it had placed before the Trial Court evidence demonstrating that the Appellant remained in its employment after January 2019 and ultimately deserted duty in March 2023. 23.It was the Respondent’s position that the learned Trial Magistrate properly applied the law on the burden of proof, duly evaluated the evidence adduced by both parties, and correctly concluded that the Appellant had failed to prove, on 6

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a balance of probabilities, that his employment was unlawfully terminated on 25th January 2019. Analysis and Determination 24.As a first appellate Court, this Court is required to reconsider, re-evaluate and analyse afresh the evidence adduced before the Trial Court and arrive at its own independent conclusions. In so doing, the Court must bear in mind that it neither saw nor heard the witnesses testify and should therefore accord due allowance in that regard. This principle was restated by the Court of Appeal in Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123. 25.This Court is further guided by the well-established principle that an appellate court will not ordinarily interfere with findings of fact by a trial court unless it is demonstrated that such findings are not supported by evidence, are based on a misapprehension of the evidence, or that the trial court applied wrong principles in reaching its decision. This position was articulated in Mwanasokoni v Kenya Bus Services Ltd & 3 Others [1985] KECA 82 (KLR). 26.Bearing in mind its mandate as a first appellate Court, and having considered the Appeal, the entire Record of Appeal, the parties’ respective submissions, 7

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and the applicable law, the Court has distilled the following issues for determination: a) Whether the Trial Court erred in finding that the Appellant had failed to prove that his employment was unlawfully terminated; and b) Depending on the determination of the first issue, whether the Trial Court erred in dismissing the reliefs sought by the Appellant. Whether the Trial Court erred in finding that the Appellant had failed to prove that his employment was unlawfully terminated 27.In the Memorandum of Appeal, the Appellant faults the Learned Trial Magistrate for failing to find that the Respondent wrongfully terminated his employment. 28.A perusal of the Memorandum of Claim shows that the Appellant pleaded that his employment was terminated on 25th January 2019 without being furnished with any reason for the termination or being invited to a disciplinary hearing. 29.In his witness statement, which was adopted as his evidence in chief, the Appellant stated that on 25th January 2019, the Respondent posted a notice at the entrance of its premises at Ndaka-ini, announcing that it was experiencing cash-flow challenges and was consequently compelled to reduce its workforce. 8

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30.The Appellant stated that his name did not appear on the list of employees contained in the notice. It was the Appellant’s position that, through the said notice, the Respondent had effectively terminated his employment. 31.The Respondent’s witness, Brian Makori Nyabuto, disputed the Appellant’s account and maintained that the Appellant remained in the Respondent’s employment until 1st June 2023, when he stopped reporting to work. He testified that he followed up with the Appellant after he ceased reporting to work, but the Appellant did not respond. 32.Mr. Nyabuto added that there were instances when employees were instructed not to report to the project sites because the land through which the project was to traverse had not yet been allocated to the Respondent. In his view, such interruptions did not constitute termination of employment. 33.In his judgment, the Learned Trial Magistrate rejected the Appellant’s version of events, observing that he had been paid his salary for January and February 2019. The Court consequently found it improbable that his employment had been terminated on 25th January 2019. To this end, the Trial Court accepted the Respondent’s position that the Appellant had continued working until June 2023, when he absconded duty. 9

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34.It is noteworthy that the Appellant did not produce before the Trial Court the alleged redundancy notice through which he claimed his employment had been terminated. What’s more, he admitted that his name did not appear on the said notice. 35.In addition to the foregoing, it is noteworthy that the Appellant expressly admitted in his witness statement that the Respondent paid his salary for January and February 2019. His contention was that the Respondent thereafter ceased making any further salary payments. 36.In the circumstances, I cannot help but question why the Respondent would have continued paying the Appellant’s salary into February 2019 if, as alleged, his employment had been terminated on 25th January 2019. 37.Indeed, if the Appellant’s employment had been terminated on 25th January 2019, there would be no apparent basis for the Respondent to have continued paying his salary for the month of February 2019. The payment is therefore inconsistent with the Appellant’s contention that his employment had already come to an end on 25th January 2019. 38.It should also be appreciated that under Section 47(5) of the Employment Act, the employee bears the initial burden of proving that an unfair termination or wrongful dismissal has occurred. Once that burden is discharged, the evidential 10

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burden shifts to the employer to justify the grounds for the termination of employment or wrongful dismissal. 39.The Court of Appeal considered the import of the provisions of Section 47(5) of the Employment Act in Pius Machafu Isindu v Lavington Security Guards Limited [2014] KEIC 121 (KLR), and expressed itself as follows: “So that, the appellant(employee) in this case had the burden to prove, not only that his services were terminated, but also that the termination was unfair or wrongful. Only when this foundation has been laid will the employer be called upon under section 43 (1): "to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45.” 40.In view of the foregoing, it follows that the Appellant was required, in the first instance, to establish that his employment had been terminated before the evidential burden could shift to the Respondent to prove the reason for the termination and demonstrate that such reason was fair and valid within the meaning of Sections 43 and 45 of the Employment Act. 11

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41.All things considered, this Court arrives at the same conclusion as the Trial Court that the Appellant failed to prove, on a balance of probabilities, that his employment was terminated by the Respondent on 25th January 2019. 42.As regards the Respondent’s contention that the Appellant deserted duty from June 2023, the issue does not fall for determination in this Appeal, seeing the Appellant’s case before the trial Court was that his employment was terminated on 25th January 2019. 43.Having found that the Appellant failed to establish that his employment was terminated, the question of whether the alleged termination was fair and lawful does not arise for determination. Reliefs? 44.In the absence of a finding of unfair termination, the reliefs sought by the Appellant before the trial Court do not lie. Orders 45.Ultimately, I find no basis upon which to interfere with the decision of the learned trial Magistrate. Accordingly, the instant Appeal fails and is dismissed in its entirety with costs to the Respondent. DATED, SIGNED and DELIVERED at NYERI this 25th day of September 2026. 12

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……………………………… STELLA RUTTO JUDGE In the presence of: For the Appellant Mr. Maina For the Respondent Ms. Katasi instructed by Ms. Wacuka Court Assistant Ndati 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 15th March 2020 and subsequent directions of 21st 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 had 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 13

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which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. STELLA RUTTO JUDGE 14

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