Yegon William Kemboi v Cherangani Hills Limited

2. Upon hearing the parties, the trial court delivered its judgment on 2nd October 2025, dismissing the Appellant’s claim on the ground that he had failed to demonstrate that the termination of his employment was unfair and unlawful. 3. Aggrieved by the said judgment, the Appellant instituted the present appeal by way of a Memorandum of Appeal dated 10 th October 2025 and a Supplementary Memorandum of Appeal dated 20th May 2026, raising the following grounds: i. THAT the learned Trial Magistrate erred in Law and fact in failing to interpret the provision of the Employment Act on absconding duty and on the procedural and substantive process of termination. ii. THAT the learned Trial Magistrate erred in Law and fact in finding that there was no unlawful termination despite the lack of evidence of procedural and substantive termination. iii. THAT the learned Trial Magistrate erred in Law and fact in holding that the evidence of DW1, Mr. Priv Dodha, was properly on record despite the lack of authority and/or 2 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 2 of 42

Resolution from the Respondent authorizing him to testify on behalf of the Respondent. iv. THAT the learned Trial Magistrate erred in Law and fact in holding that Article 159 of the Constitution of Kenya, and Section 1A, & B of the Civil Procedure Act, applied to the circumstances of the Respondent's evidence, and in holding that the evidence of DW1, Priv Dodha was properly on record. v. THAT the learned Trial Magistrate erred in Law and fact in misapprehending and totally disregarding the Appellant’s evidence, exhibits on record, thereby arriving at a decision wrong and unsubstantiated in Law. vi. THAT the learned Trial Magistrate erred in law and fact in completely ignoring and failing to consider the Appellant's submissions on record, hence arriving at an erroneous decision in finding the Appellant had not proved termination. vii. THAT the learned Trial Magistrate erred in law and fact in holding that the Appellant was not entitled to the reliefs sought. 3 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 3 of 42

viii. THAT the learned Trial Magistrate erred in Law and fact in holding that the Appellant was entitled to a certificate of service despite holding that the Appellant was not unlawfully terminated. ix. THAT the decision as a whole is against the Constitution, the Employment Act, rules of natural justice, and ought to be set aside in its entirety. x. THAT the learned Trial Magistrate erred in law and in fact in selectively analyzing the documents presented to him and consequently exhibited bias in his judgment as against the Appellant, and as such, her judgment is unfair and unjust. xi. THAT the learned Trial magistrate was biased in making her finding that the Claimant was fairly terminated by failing to record and consider the Examination in Chief of the Claimant, despite the Claimant having testified and Cross-examined by the Respondent's counsel. 4. Consequently, the Appellant prays for orders that:i. THAT the Appeal herein be allowed in its entirety. 4 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 4 of 42

ii. THAT the Judgment dated 2/10/2025 in Kitale Magistrate's Court, ELRC No. E.007 of 2024 be set aside and/or varied. iii. THAT the costs of the Appeal be awarded to the Appellant. Analysis 5. This being a first appeal, this Court has the duty to analyze and re-examine the evidence adduced in the lower Court and reach its own conclusion bearing in mind that it neither saw nor heard the witnesses testify and make due allowance for that. 6. In Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, the Court stated as follows:“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.” 7. Vide his Statement of Claim dated 15 th February 2024, the Claimant, now the Appellant, averred that the Respondent 5 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 5 of 42

employed him on permanent terms as a plant operator with effect from 1st August 2013. He stated that he served the Respondent diligently and faithfully until 8 th December 2022, when the Respondent allegedly terminated his employment unlawfully and without following due procedure or providing any lawful reason or justification. 8. The Appellant contended that his employment was terminated on allegations that he had fraudulently transacted business with the Respondent’s clients and had failed to submit daily reconciliations with the intention of committing fraud. 9. He maintained that the termination was unfair and procedurally flawed because he was not accorded a fair hearing and the reasons for the termination were not explained to him in a language or manner that he understood. He further asserted that he was neither issued with a notice to show cause nor invited to attend a disciplinary hearing before his summary dismissal. 10. It was the Appellant’s case that the Respondent’s decision to terminate his employment was unlawful, unprocedural and unfair for following reasons that: 6 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 6 of 42

i. No notice of termination of employment was issued to him as envisaged under section 35 of the Employment Act ii. The Claimant was not given his pay in lieu of notice pursuant to the terms of the Employment offer iii. The Claimant was not issued with notice as envisaged under section 44 of the Employment Act iv. The Respondent did not comply with section 44 of the Employment Act 11. The Appellant particularized and tabulated his terminal dues as hereunder: i. Six months’ salary in lieu of notice………Kshs. 240,000 ii. 12 months compensation for unfair termination…………………….…. Kshs 480,000 iii. Service pay/Gratuity………………….…. Kshs. 180,000 iv. Leave dues…………………………..…..… Kshs. 252,000 Total……………………………………….... Kshs. 1,152,000 12. The Appellant prayed for the following reliefs: i. A declaration that the termination of the Claimant’s employment on account of conflict of interest and intent 7 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 7 of 42

to commit fraud was discriminative, malicious, unlawful, unfair, unprocedural and a fundamental violation of the Claimant’s rights ii. The sum of Kshs 1,152,000 as tabulated above iii. A maximum compensation as per section 49(c) of the Employment Act,2007 iv. A Certificate of Service as per section 51 of the Employment Act v. Costs and interests vi. Any other award as the honourable court deems fit to grant in the circumstances of this case. 13. In response, the Respondent filed a Response to the Memorandum of Claim dated 14th March 2024, denying the allegation that it had unlawfully or unfairly terminated the Appellant’s employment. It asserted that the Appellant absconded duty after acting negligently and misappropriating funds and that to date he has neither returned to work nor issued any notice of his intention to leave its employment. 14. It was the Respondent’s case that the Appellant had been invited to show cause why disciplinary action should not be 8 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 8 of 42

taken against him for failing to submit daily reconciliations and allegedly defrauding the Respondent but he failed to respond or appear to show cause. 15. In addition, the Respondent contended that during the course of his employment, the Appellant operated a loan account with it and occasioned other financial losses amounting to Kshs. 332,800, which it sought to recover from him. 16. The Respondent consequently urged the trial court to dismiss the claim with costs and to order the Appellant to reimburse it the sum of Kshs. 332,800. The Evidence adduced 17. At the trial, the Claimant testified as CW1 and adopted his witness statement dated 15th February 2024 as his evidence. He also relied on the documents he filed in support of his claim. 18. During cross-examination, the Claimant testified that he was employed on permanent terms by the Respondent and was paid his salary in cash. He further testified that the Respondent terminated his employment on 8th December 2022 without issuing him with a termination letter. 9 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 9 of 42

19. It was the Claimant’s case that he became aware of the allegations of fraud against him through the Respondent’s manager, who did not issue him with any written communication directing him to stop working. According to the Claimant, the Respondent’s director’s son instructed him to report to the office and hand over the keys. The Claimant maintained that he was dismissed without due procedure. 20. He stated that he had been registered with the National Social Security Fund. He further stated that he had not produced any evidence showing that he had never proceeded on leave. Regarding payment of his salary, he testified that he had been paid for the three-month period between 1 st October 2022 and 1st December 2022 but the other amounts due to him remained unpaid. 21. On its part, the Respondent called Mr. Priv Dodhia Vipul, who testified as RW1. He adopted his undated witness statement, filed together with the Respondent’s Response to the Memorandum of Claim, as his evidence in chief. RW1 testified that the Claimant had worked for the Respondent as a machine operator but stopped reporting to work after the Respondent 10 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 10 of 42

confronted him over discrepancies in the recorded operating hours of a machine he had operated for one of its clients. 22. RW1 testified that a notice to show cause dated 21 st November 2022 had been issued to the Claimant, requiring him to explain why he had failed to accurately record the machine’s operating hours. According to RW1, the Claimant did not respond to the notice. 23. RW1 further testified that he had never received any complaint from the Claimant concerning uninhabitable working conditions. He maintained that the Respondent had never terminated the Claimant’s employment as alleged in the claim and that the Claimant had never notified the Respondent that he had ceased to be its employee. 24. During cross-examination, RW1 conceded that he had not produced any evidence demonstrating that the notice to show cause had been served upon the Claimant. He also stated that he had no evidence showing that the Respondent had attempted to contact or follow up with the Claimant after he allegedly stopped reporting to work. 11 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 11 of 42

25. RW1 further stated that he was unable to prove the losses allegedly suffered by the Respondent and that he had not called any client to substantiate the allegations of dishonesty levelled against the Claimant. 26. Upon considering the parties’ respective cases, the trial court delivered its judgment on 2 nd October 2025, dismissing the Claimant’s suit on the basis that the Claimant had not proved that he had been unlawfully and unfairly terminated from employment. 27. It is that judgment which forms the subject of the present appeal. The Appeal 28. Pursuant to the directions issued by this Court on 20 th May 2026, the appeal was canvassed by way of written submissions. The Appellant’s submissions are dated 14 th July 2026, while the Respondent’s submissions are dated 25 th July 2026. Appellant’s submissions 12 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 12 of 42

29. The Appellant condensed the grounds of appeal into the following issues: i. Whether the learned Trial Magistrate erred in law and fact by failing to properly interpret and apply the provisions of the Employment Act relating to desertion of duty and the substantive and procedural fairness of termination ii. Whether the learned Trial Magistrate erred in finding that the Appellant’s employment had not been unlawfully terminated despite the absence of evidence demonstrating substantive and procedural fairness iii. Whether the learned Trial Magistrate erred in admitting and relying upon the evidence of DW1, Mr Priv Dodhia, in the absence of proof that he was authorized by the Respondent to testify on its behalf iv. Whether the learned Trial Magistrate erred in invoking Article 159 of the Constitution and sections 1A and 1B of the Civil Procedure Act to find that DW1’s evidence was properly on record 13 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 13 of 42

v. Whether the learned Trial Magistrate disregarded or misapprehended the Appellant’s evidence and submissions, thereby arriving at an erroneous decision vi. Whether the learned Trial Magistrate erred in finding that the Appellant was not entitled to the reliefs sought vii. Whether the order directing the Respondent to issue the Appellant with a certificate of service was inconsistent with the finding that the Appellant had not proved unlawful termination viii. Whether the learned Trial Magistrate selectively analysed the documentary evidence and thereby exhibited bias against the Appellant ix. Whether the learned Trial Magistrate failed to record and consider the Appellant’s evidence-in-chief x. 30. Whether the judgment of the Trial Court was meritorious. The Appellant submitted that the learned Trial Magistrate failed to apply the legal principles governing an allegation that an employee had absconded or deserted duty. Relying on Ronald Nyambu Daudi v Tornado Carriers Limited [2019] KEELRC 2150, the Appellant submitted that it was 14 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 14 of 42

insufficient for an employer merely to assert that an employee had deserted duty. 31. The Appellant also relied on Owudu v Digital Sanitation Services Limited (Appeal E109 of 2023) [2024] KEELRC 917 (KLR), in which the Court held that an employee does not terminate their own employment merely by failing to report to work. According to the Appellant, the employer must require the employee to account for the absence and, if the employee fails to respond, issue a notice of termination or summary dismissal through the employee’s last known address. He submitted that where the employee cannot be traced, the employer is required, under section 18(5)(b) of the Employment Act, to notify the Labour Officer and deposit any terminal dues with that office. 32. Further reliance was placed on Stanley Omwoyo Onchweri v Board of Management, Nakuru YMCA Secondary School [2015] eKLR and Dickson Matingi v DB Schenker Limited [2016] eKLR for the proposition that an employer alleging desertion must demonstrate the efforts made to establish the employee’s whereabouts and secure their return to work. At 15 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 15 of 42

the very least, the employer should notify the employee that termination on the ground of desertion is contemplated. 33. The Appellant contended that, although the Respondent alleged desertion or abandonment of duty, it produced no evidence that the Appellant had absconded or that it had attempted to contact him, required him to resume duty, or issued him with a notice of dismissal on account of absenteeism. According to the Appellant, the Respondent’s witness conceded before the Trial Court that no follow-up action had been taken. The Appellant therefore submitted that, once the Respondent alleged desertion, it bore the burden of proving either that the Appellant had deserted duty or that his employment had been lawfully terminated on that ground. In the Appellant’s view, the Respondent failed to discharge that burden. 34. On the fairness of the termination, the Appellant relied on sections 43 and 45 of the Employment Act and submitted that an employer must establish both a valid and fair reason for termination and compliance with a fair procedure. The Appellant contended that, although the Respondent alleged 16 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 16 of 42

that it had served him with a notice to show cause, it did not prove that the notice had been issued and served. It is submitted that the said notice was also not included in the Respondent’s list of documents. 35. The Appellant further submitted that, if a disciplinary process had commenced, the Respondent ought to have completed it. In this regard, he submitted that if the Appellant failed to respond to the notice to show cause, the Respondent should have issued a formal notice terminating his employment. 36. The Appellant submitted that the Respondent could not commence disciplinary proceedings and subsequently rely on desertion without formally concluding the process. He therefore submitted that in the circumstances, and in the absence of a termination notice founded on absenteeism, desertion, theft, conflict of interest or an intention to commit fraud, the Appellant maintained that the termination was substantively and procedurally unfair. 37. In response to evidence tendered before the trial court by DW1, the Appellant submitted that Mr. Priv Dodhia purported to testify as a director of the Respondent, a limited liability 17 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 17 of 42

company, but did not produce a certificate of incorporation, a CR12 form or a resolution of the board of directors establishing either his directorship or his authority to testify on the Respondent’s behalf. In support of this position, the Appellant relied on the case of Bugerere Coffee Growers Ltd v Sebaduka & Another [1970] EA 147 for the proposition that authority to institute proceedings on behalf of a company must be conferred through a resolution of the company’s directors. 38. The Appellant submitted that the failure to produce proof of DW1’s directorship or authority to testify was not a mere procedural technicality capable of being cured under Article 159 of the Constitution. He submitted that the omission went to the substance of the Respondent’s case and could not be cured after the close of pleadings. He therefore submitted that the learned Trial Magistrate erred in invoking Article 159 of the Constitution and sections 1A and 1B of the Civil Procedure Act to admit and rely upon DW1’s evidence. He therefore urged the Court to disregard DW1’s evidence. 39. The Appellant further contended that he testified, adopted his witness statement and produced his documents as exhibits 18 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 18 of 42

before being cross-examined by the Respondent’s counsel. He stated that the learned Trial Magistrate however failed to record his evidence in chief and the questions put to him by his counsel. According to the Appellant, the failure to record and consider his testimony rendered the finding that he had not proved unlawful termination unsupported by the evidence and demonstrated bias on the part of the Trial Court. 40. The Appellant also submitted that the learned Trial Magistrate failed to consider his submissions on the allegation of desertion of duty. He contended that the omission resulted in an erroneous and unfair judgment. 41. With regard to the certificate of service, the Appellant relied on section 51 of the Employment Act, which requires an employer to issue an employee with a certificate of service upon termination and submitted that the Trial Court’s order directing the Respondent to issue him with a certificate of service was inconsistent with its finding that he had not proved termination of his employment. He contended that the order recognised that the employment relationship had come to an end. 19 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 19 of 42

42. The Appellant further contended that, during the hearing, the Respondent produced a notice to show cause that was not included in its list of documents dated 25 th March 2024. He contended that although his counsel objected to its production, the learned Trial Magistrate admitted and relied upon the document in finding that there had been no unlawful termination. The Appellant therefore submitted that reliance on an unlisted document amounted to the introduction of extraneous evidence and a selective consideration of the record, thereby rendering the decision biased, unjust and unfair. 43. Lastly, on whether the Judgment by the Trial Court is meritorious, the Appellant submitted that the Judgment rendered and delivered on 2nd October 2025 was unmeritorious, unfair and biased. 44. The Appellant therefore urged the Court to set aside the Judgment and allow the appeal in its entirety with costs to the Appellant. The Respondent’s submissions 20 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 20 of 42

45. In its submissions, the Respondent condensed the grounds of appeal into the following issues: i. Whether the Trial Magistrate erred in law and fact by failing to interpret the provisions of the Employment Act relating to absconding duty and the procedural and substantive requirements for termination ii. Whether the learned trial magistrate erred in law and fact by finding that there was no unlawful termination iii. Whether the Learned Trial Magistrate erred in law and fact by holding that the evidence of DW1, Mr Priv Dodhia, was properly on record despite the absence of authority and/or a resolution from the Respondent iv. Whether the Learned Trial Magistrate erred in law and fact by disregarding the Appellant’s evidence and exhibits and thereby arriving at an erroneous and legally unsubstantiated decision v. Whether the Learned Trial Magistrate erred in law and fact by holding that the Appellant was not entitled to the reliefs sought 21 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 21 of 42

46. On the first issue, the Respondent submitted that the Appellant had, through his own pleadings and testimony, confirmed that as at the time he testified before the Trial Court, he had not produced any document demonstrating that the Respondent had sought to terminate his employment. 47. It was further submitted that the Appellant had confirmed that he had been questioned about daily reconciliations and transactions involving the Sacco, which were suspected to have been undertaken with the intention of committing fraud and that according to the Respondent, it was those inquiries that caused the Appellant to leave his place of work and eventually abscond from duty. 48. The Respondent further submitted that, during his examination-in-chief, the Appellant informed the Trial Court that he had been asked to hand over the keys and was thereafter chased away. However, during cross-examination, the Appellant conceded that he did not have any communication from the Respondent directing him to leave employment. 22 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 22 of 42

49. On that basis, the Respondent maintained that the Trial Court did not err in law or fact in finding that the Appellant had absconded duty. It is the Respondent’s submission that its witness had testified during examination-in-chief that an oral notice to show cause was issued to the Appellant on 21 st November 2022. It was submitted that the Appellant did not controvert that evidence. 50. On the issue whether the learned trial magistrate erred in law and fact by finding that there was no unlawful termination, the Respondent submitted that the burden of proving unfair termination lay with the Appellant and that he had failed to discharge that burden. The Respondent contended that the Appellant was required to establish that his employment had indeed been terminated before the Court could consider whether the alleged termination was substantively justified and procedurally fair. 51. According to the Respondent, the Appellant failed to establish that his employment had been terminated and that as such, the Learned Trial Magistrate did not err in law or fact by finding 23 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 23 of 42

that the Appellant had failed to satisfy the Court that his employment had been terminated by the Respondent. 52. It is the Respondent’s further submission that it was only after an employee had established that a termination had occurred that the evidentiary burden shifted to the employer to justify the termination. In support of this position, the Respondent relied on the decision in Dungani v West Kenya Sugar Company Limited (Employment and Labour Relations Appeal No. 12 of 2023) [2024] KEELRC 172 (KLR), for the proposition that under section 47(5) of the Employment Act, the employee bore the initial burden of proving that an unfair termination had occurred. 53. On the third issue whether the Learned Trial Magistrate erred in law and fact by holding that the evidence of DW1, Mr. Priv Dodhia, was properly on record despite the absence of authority and/or a resolution from the Respondent, the Respondent submitted that the Learned Trial Magistrate properly considered the testimony of DW1 and correctly found that the evidence was legally admissible and relevant to the determination of the suit. 24 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 24 of 42

54. It was the Respondent’s submission that the general rule was that a person dealing with a company was not required to inquire into the company’s internal processes but was entitled to presume that all the applicable internal requirements had been complied with. In that regard, the Respondent relied on the decision in KTK Advocates v Nyambene Coffee Estates Limited & 2 Others [2018] eKLR and Royal British Bank v Turquand, which it submitted had been affirmed by the Court of Appeal in East African Safari Air Limited v Anthony Ambaka Kegode & Another, Civil Appeal No. 42 of 2007. 55. The Respondent further submitted that the matter had been mentioned on several occasions during the pre-trial stage and that the Appellant had not, at any point, challenged the competence or authority of RW1 to testify on behalf of the Respondent. The Respondent submitted that the issue was raised for the first time in the Appellant’s submissions on appeal and was therefore, in the Respondent’s view, a mere afterthought. 56. On whether the Learned Trial Magistrate erred in law and fact by disregarding the Appellant’s evidence and exhibits and 25 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 25 of 42

thereby arriving at an erroneous and legally unsubstantiated decision, the Respondent submitted that the Learned Trial Magistrate did not err in law or fact in arriving at the decision contained in the Judgment delivered on 2nd October 2025. 57. According to the Respondent, the Appellant’s case was not proved to the required standard for reasons that although the Appellant alleged that he earned a monthly salary of Kshs. 40,000 and was permanently employed by the Respondent, he did not produce a contract of employment or any other documentary evidence in support of those allegations. In addition, the Respondent submitted that during cross- examination, the Appellant confirmed that he was aware of the allegations of fraud raised by the Respondent’s manager and that at no point did the Respondent’s manager, whether expressly or impliedly, direct the Appellant to stop working. 58. The Respondent thus maintained that, based on the evidence presented before the Trial Court, the Appellant’s case was not proved to the required standard. 59. It is therefore submitted that the Learned Trial Magistrate did not err in law and fact by holding that the Appellant was not 26 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 26 of 42

entitled to the reliefs sought. That as such, there was no basis upon which the Trial Court’s Judgment could be disturbed or set aside. 60. In respect to the Claimant’s claim for Six months’ salary in lieu of notice, the Respondent submitted that the Appellant did not produce any documentary evidence, either during his examination in chief or cross-examination, demonstrating that he had been employed by the Respondent under contractual terms entitling him to six months’ salary in lieu of notice. 61. It was further submitted that, in his Statement of Claim, the Appellant pleaded that he had been permanently employed by the Respondent but during cross-examination he confirmed that he did not have any documentary evidence to support that assertion. 62. On the prayer for compensation for unfair termination, the Respondent awardable submitted for wrongful that general termination. damages In were support of not that proposition, it relied on the case of George Onyango Akuti v G4S Security Services Kenya Limited [2013] eKLR. 27 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 27 of 42

63. The Respondent further submitted that, under sections 49(1) and 49(4) of the Employment Act, compensation could only be awarded where a dismissal was found to be unjustified or unfair. That in the present case there had been no dismissal or unfair termination capable of attracting those remedies. 64. On the claim for service pay and/or gratuity, the Respondent submitted that the Learned Trial Magistrate acted within the law in finding that there was no basis for awarding service pay and/or gratuity. Citing section 35 of the Employment Act, the Respondent submitted that service pay is only awarded where the employee was not a member of the National Social Security Fund, a registered pension or provident fund, or a more favourable scheme operated by the employer. The Respondent maintained that the Appellant was a registered member of the National Social Security Fund, as demonstrated by the copy of his NSSF statement of account appearing at page 18 of the Record of Appeal and is therefore not entitled to service pay and/or gratuity. 65. With regard to the claim for leave dues, the Respondent submitted that the burden 28 KTL ELRCA NO. E005 OF 2025 JUDGMENT lay with the Appellant to

page 28 of 42

demonstrate that he had requested to proceed on leave and that the Respondent had declined his request. The Respondent further submitted that the Appellant had neither indicated nor specifically pleaded the particular leave days for which he sought payment. That as such, the Court could not be invited to speculate on the number of leave days allegedly due to him. It was also submitted that, during both examination in chief and cross examination, the Appellant informed the Trial Court that he did not have any evidence showing that he had requested leave and that the request had been declined by the Respondent. 66. In the end, the Respondent submitted that the Learned Trial Magistrate applied the correct legal principles in arriving at her decision. The Court was accordingly urged to uphold the Judgment of the Trial Court and dismiss the appeal in its entirety, with costs to the Respondent. Determination 29 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 29 of 42

67. I have considered the Record of Appeal and the submissions by both parties. In my view, the issues that fall for this court’s determination are: i. Whether the Appellant’s employment was unlawfully and unfairly terminated by the Respondent or whether he absconded duty ii. Whether the termination was substantially and procedurally fair iii. Whether the evidence of RW1 was properly admitted and considered by the Trial Court iv. Whether the Appellant is entitled to the reliefs sought. Whether the Appellant’s employment was unlawfully and unfairly terminated by the Respondent or whether he absconded duty 68. Under section 47(5) of the Employment Act, the employee bears the initial burden of establishing that an unfair termination or wrongful dismissal occurred, while the employer bears the burden of justifying the grounds for the termination. 30 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 30 of 42

69. The Appellant’s evidence was that, following allegations concerning transactions with the Respondent’s clients and discrepancies in the machine’s operating records, the Respondent’s director’s son directed him to report to the office and hand over the keys. According to him, he was thereafter prevented from continuing with his duties. 70. The Respondent, on the other hand, denied terminating the Appellant’s employment and maintained that he voluntarily stopped reporting to work after being questioned over the alleged discrepancies. It therefore attributed the cessation of the employment relationship to desertion of duty. 71. Section 44(4)(a) of the Employment Act 2007 provides as follows: (a) without leave or other lawful cause, an employee absents himself from the place appointed for the performance of his work; 72. Section 44(4)(a) is specific that absence from work per se does not constitute a ground for dismissal unless it is without leave or other lawful cause. Desertion is more than mere absence from work. It involves an employee’s apparent intention not to 31 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 31 of 42

return to work. Where an employer alleges desertion, it must demonstrate the reasonable steps taken to establish the employee’s whereabouts, require the employee to resume duty, or notify the employee that disciplinary action, including termination, is contemplated. 73. In the case of Stanley Omwoyo Onchweri v BOM Nakuru YMCA Secondary School [2015] eKLR the court held that the employer must demonstrate what measures were put in place to trace the employee who is alleged to have absconded duty. 74. In the instant case, although the Respondent referred to a notice to show cause dated 21st November 2022, the Respondent did not tender any evidence to show the efforts it made in tracing the Appellant after he allegedly absconded duty. The said notice to show cause was not proved to have been served on the Appellant either verbally or in writing. In any event the law provides for the same to be in writing. Further, the fact that no written termination letter was issued is not, by itself, conclusive proof that no termination occurred. 32 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 32 of 42

75. Having re-evaluated the evidence, I find, on a balance of probabilities, that the Appellant established that he was prevented from continuing with his duties and that his employment was thereby brought to an end by the Respondent. The learned Trial Magistrate consequently erred in finding that the Appellant had failed to establish that his employment had been terminated. Whether the termination was substantially and procedurally fair 76. Sections 43 and 45 of the Employment Act place upon the employer the burden of proving the reason for termination and demonstrating that the reason was valid and fair. Section 41 further requires an employer contemplating termination on grounds of misconduct, poor performance or physical incapacity to explain the allegations to the employee and afford the employee an opportunity to respond. 77. In his defence, the Respondent asserted that the employment relationship between itself and the Appellant came to an end after the Respondent failed to reconcile the operating hours of 33 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 33 of 42

a machine, fraudulent transactions and misappropriation of funds. RW1 nevertheless conceded that he had not called any client to substantiate the allegations and could not prove the financial losses allegedly suffered by the Respondent. 78. An employer is not required to prove misconduct to the criminal standard. It must, however, demonstrate that, at the time of termination, it genuinely believed on reasonable grounds that the employee had committed the alleged misconduct. 79. The Respondent herein did not produce sufficient evidence establishing the alleged discrepancies, fraudulent transactions or financial loss. 80. The Respondent also failed to demonstrate that the Appellant was served with the notice to show cause or was invited to attend a disciplinary hearing. Even assuming that a notice to show cause had been prepared, the disciplinary process was never brought to its lawful conclusion. No decision arising from that process was communicated to the Appellant. 81. Consequently, I find that the Respondent failed to establish a valid and fair reason for 34 KTL ELRCA NO. E005 OF 2025 JUDGMENT terminating the Appellant’s

page 34 of 42

employment as required by sections 43 and 45 of the Employment Act. Further, the Respondent failed to demonstrate compliance with the procedural requirements prescribed by section 41 of the Act. 82. The termination was consequently substantively and procedurally unfair. Whether the evidence of RW1 was properly admitted and considered by the Trial Court 83. In his appeal, the Appellant challenged the admissibility of RW1’s evidence on the ground that RW1 did not produce a resolution of the Respondent’s board authorising him to testify on its behalf. In my view, that argument is misplaced. A distinction must be drawn between the authority to institute proceedings on behalf of a company and the competence of a witness to testify on matters within his personal knowledge. The authorities requiring a company resolution principally relate to the institution of proceedings or the appointment of an agent to undertake a particular corporate act. They do not establish a general rule that every director, officer or 35 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 35 of 42

employee called as a witness by a company must produce a board resolution before giving evidence. The Respondent was already a party to the proceedings and was represented by counsel. RW1 testified on matters which he stated were within his knowledge concerning the Appellant’s employment and the circumstances under which he stopped reporting to work. 84. Further, rule 33 of the Employment and Labour Relations Court Procedure Rules provides that any objections to pleadings must be raised by a notice stating the grounds of objection. No such notice was raised by the Appellant during the proceedings in the trial court. 85. I therefore find that the Trial Court did not err in admitting and considering RW1’s evidence merely because he had not produced a board resolution authorising him to testify. This ground of appeal is therefore without merit. Whether the Appellant is entitled to the reliefs sought 86. Having found that the Appellant was unfairly and unlawfully terminated from employment, I will address the prayers sought in his claim under separate heads. 36 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 36 of 42

i. A declaration that the termination of Claimant’s employment on account of conflict of interest and intent to commit fraud was discriminative, malicious, unlawful, unfair, unprocedural and a fundamental violation of the Claimant’s rights Having found that the Respondent failed to establish a valid and fair reason for terminating the Appellant’s employment and did not comply with the procedural requirements prescribed under section 41 of the Employment Act, I find that the termination was unlawful, unfair and unprocedural and I declare it as such. However, the Appellant did not plead or adduce sufficient evidence demonstrating that the termination was discriminatory or malicious, or that it amounted to a fundamental violation of his constitutional rights. That prayer is therefore declined. ii. Terminal dues a. Six months salary in lieu of notice The Appellant claimed six months’ salary in lieu of notice, amounting to Kshs.240,000. He did not, 37 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 37 of 42

however, produce a contract of employment or any other evidence establishing a contractual entitlement to six months’ notice. In the absence of such evidence, he is entitled to the statutory notice under section 35 of the Employment Act, being one month’s salary. The Appellant pleaded that he earned Kshs.40,000 per month. The Respondent, being the employer and the custodian of employment and wage records under section 10 and 74 of the Employment Act, did not produce any payroll or wage records showing that the Appellant earned a different amount. I therefore adopt Kshs.40,000 as his monthly salary and award him Kshs.40,000 in lieu of notice. b. Compensation for unfair termination Having found that the termination of the employment of the Appellant was unlawful and unfair, this court is clothed with jurisdiction to award compensation. Section 49 of the Employment Act provides for remedies for wrongful dismissal and 38 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 38 of 42

unfair termination. The Appellant worked for the Respondent for about 9 years. Taking into account the length of the Appellant’s service and relevant factors under section 49(4) of the Act and applying the same to the facts of this case, I award the Appellant compensation equivalent to 3 months’ salary amounting to Kshs. 120,000. c. Service pay Section 35(6) of the Employment Act excludes employees who are members of a registered pension or provident fund or who are otherwise covered under the NSSF from claiming service pay. The evidence on record demonstrates that the Appellant was a contributor to the National Social Security Fund (NSSF). He is therefore not entitled to this relief and the prayer is declined. d. Leave dues The Appellant further sought Kshs.252,000 as accrued leave pay. Although an employer is required to maintain leave records, the Appellant did not 39 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 39 of 42

identify the leave years in question, the number of outstanding leave days, or the basis upon which the sum claimed was calculated. He also conceded that he had not produced evidence demonstrating that he had been denied leave. The claim was not sufficiently particularised or proved and is therefore declined. iii. A Certificate of Service as per sections 51 of the Employment Act Regarding the certificate of service, section 51 of the Employment Act requires an employer to issue an employee with a certificate of service upon termination of employment, unless the employment lasted for less than four consecutive weeks. The Appellant served the Respondent for considerably longer than four weeks and is therefore entitled to a certificate of service. The Trial Court’s direction that the Respondent issue the Appellant with inconsistent a with certificate its termination. 40 KTL ELRCA NO. E005 OF 2025 JUDGMENT of finding service was concerning not unfair

page 40 of 42

87. In conclusion, the appeal succeeds. Accordingly, the Court makes the following orders: i. The appeal is hereby allowed ii. The judgment of the trial court delivered on 2 nd October 2025 in Kitale CMELRC No. E007 of 2024 is hereby set aside. iii. A declaration is hereby issued that the termination of the Appellant's employment was unfair and unlawful. iv. The Appellant is awarded one (1) month's salary in lieu of notice being Kshs. 40,000 v. The Appellant is awarded compensation for unfair termination equivalent to three (3) months' salary being Kshs. 120,000 vi. The claims for service pay and unpaid leave are dismissed. vii. The total award shall attract interest at court rates from the date of judgment in the trial court until payment in full. viii. The Appellant shall have the costs of the suit before the trial court and the costs of this appeal. 41 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 41 of 42

88. Orders accordingly DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 24TH DAY OF SEPTEMBER, 2026 MAUREEN ONYANGO JUDGE 42 KTL ELRCA NO. E005 OF 2025 JUDGMENT

page 42 of 42