A. INTRODUCTION
1. This is a first appeal from the judgment of the Principal Magistrate's Court at Kaloleni (Hon. R. M. Amwayi, Principal Magistrate) delivered on 28th August 2025 in Kaloleni Employment & Labour Relations Cause No. E001 of 2025, in which the trial court found that the termination of the Respondent's employment by the Appellant was both substantively and procedurally unfair, and entered judgment for the Respondent for a declaration to that effect, one month's salary in lieu of notice of Kshs. 9,327/-, compensation for unfair termination of Kshs. 55,962/- (six months' gross salary), a certificate of service, costs of the suit, and interest at court rates from the date of judgment until payment in full.
2. Aggrieved, the Appellant lodged a Memorandum of Appeal dated 16th September 2025, and later filed a Supplementary Record of Appeal dated 7th November 2025 exhibiting the certified proceedings and judgment of the trial court. The appeal was canvassed and is determined on the record of appeal, the supplementary record, and the parties' rival written submissions, there being no request for oral highlighting.
B. BACKGROUND
3. The Respondent's case before the trial court, as pleaded in his Memorandum of Claim dated 13th January 2025 and his witness statement of even date, was that he was verbally employed by the Appellant on 9th July 2018 as a general labourer at its industrial facility at Uwanja wa Ndege, Mazeras, and that he worked continuously for six years and four months without ever being issued a written contract of service, despite his repeated requests for formalisation of his employment. He stated that he worked a day shift from 9th July 2018 to 31st August 2018, and thereafter a night shift, from 6.00 p.m. to 6.00 a.m., seven days a week, until his dismissal. He averred that on 24th October 2024, having just completed his night shift, he was telephoned by the Appellant's Human Resource Officer, one Maria, and informed that he should not report back to work in the evening; that upon inquiring why, he was told there was no work and that he would be called when he was needed; that he waited over two weeks without being recalled; and that when he presented himself at the Appellant's premises he was denied entry at the gate on the footing that he was no longer an employee. He contended that this amounted to a summary, unprocedural and unfair termination and, through his advocates, issued a demand letter dated 18th November 2024, which was received by the Appellant on 19th November 2024, before eventually filing suit.
4. The Appellant resisted the claim through a Memorandum of Response dated 3rd February 2025, admitting only paragraphs 1, 2, 17 and 18 of the Memorandum of Claim, being formal matters going to parties, jurisdiction and the absence of any other pending suit. On the merits, it pleaded that the Respondent was engaged not from 2018 but on a succession of distinct fixed-term contracts, the last of which ran from 19th September 2024 to 19th December 2024, at a consolidated wage of Kshs. 9,327/- per month; that on or about 28th October 2024 the Respondent absconded duty; that it consequently issued a show cause letter dated 18th November 2024 requiring an explanation and inviting him to a disciplinary hearing on 25th November 2024; that upon his failure to respond or attend, it issued a further reminder inviting him to a hearing on 9th December 2024, which he again ignored; and that it thereafter terminated his employment for absconding duty, following due process, such that neither notice nor compensation was payable.
5. By consent of the parties, recorded on 22nd May 2025, the suit proceeded to disposal under Rule 59 of the Employment and Labour Relations Court (Procedure) Rules, 2024, that is to say, on the basis of the witness statements, documents and written submissions filed by the parties, without the recording of viva voce evidence and without either party's witness being subjected to cross-examination.
6. In its judgment of 28th August 2025, the trial court found, in substance, that the Appellant's narrative of absconding was an afterthought conceived only after receipt of the Respondent's demand letter; that the Appellant had failed to discharge its burden under section 43 of the Employment Act, 2007 of proving a valid reason for termination; and that it had equally failed to comply with the procedural requirements of section 41 of the Act, there being no proof, by way of minutes or otherwise, that any disciplinary hearing was ever held. The court accordingly declared the termination unlawful and unfair and made the awards set out in paragraph 1 above.
C. THE APPEAL
Grounds of Appeal
7. The Memorandum of Appeal dated 16th September 2025 raises two grounds, which the Appellant elected to argue together:
(i) That the trial court erred in law and in fact in declaring that the Respondent was unfairly terminated, in total disregard of the law, the facts, the submissions and the evidence on record; and
(ii) That the trial court erred in law and misdirected itself in holding that the Respondent was entitled to one month's notice pay, compensation, costs of the suit and interest, in total disregard of the law and the evidence on record.
The Appellant's Submissions
8. Counsel for the Appellant submitted that, this being a first appeal, the Court is duty-bound to re-evaluate the evidence on record and arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses. It was submitted that the unchallenged documentary evidence produced before the trial court — the notice to show cause, the invitation to a disciplinary hearing, and the registered post receipts — demonstrated that the Appellant had a valid reason to terminate the Respondent, namely absconding of duty, and that it followed due process in doing so. It was contended that the trial court erred in treating the disciplinary process as an afterthought triggered by the demand letter, since the show cause notice was in fact issued and posted on 18th November 2024, a day before the Appellant received the demand letter on 19th November 2024; and that, if anything, it was the Respondent who was prompted to instruct his advocates to write the demand letter upon receiving the show cause notice. Counsel further submitted that once the Appellant had, through documentary evidence, discharged its burden under section 47(5) of the Employment Act, 2007, the onus shifted to the Respondent to prove unfair termination, which he failed to do. On the reliefs, it was submitted that, the termination having been for valid reason and following due process, no notice pay or compensation ought to have been awarded, and that in any event the Respondent had been summarily dismissed, so that no notice was payable to him.
The Respondent's Submissions
9. Counsel for the Respondent supported the judgment of the trial court in its entirety and urged that the appeal be dismissed with costs. It was submitted that the Appellant had spectacularly failed to prove, either before the trial court or on appeal, that the Respondent absconded duty from 28th October 2024 or at any other time, there being no attendance register, clock-in record, or similar business record produced, contrary to sections 10(6) and (7) of the Employment Act, 2007 and section 107(1) of the Evidence Act. It was contended that the Appellant's own timeline was an impossibility, since the Respondent could not plausibly have received a notice posted in Mazeras in the evening of 18th November 2024 and, in that same evening, have instructed advocates based in Mombasa to draft and dispatch a demand letter bearing the identical date. Counsel further submitted that the Appellant never produced minutes of any disciplinary hearing, never produced or pleaded the date of any termination letter, never showed that it made any effort to reach the Respondent by telephone or otherwise before resorting to a show cause letter, and never demonstrated compliance with section 18(5)(b) of the Employment Act as regards notifying the Labour Officer or depositing the Respondent's terminal dues. It was submitted that these omissions, taken together with the timing of the Appellant's documents, confirmed that the disciplinary process was contrived after the fact to cloak an already completed and unfair dismissal effected on 24th October 2024.
D. ISSUES FOR DETERMINATION
10. Having considered the record, the grounds of appeal and the rival submissions, I find that the following issues arise for determination:
(a) What is the duty of this Court, sitting as a first appellate court, on the record before it?
(b) Whether the disposal of the suit under Rule 59 of the Employment and Labour Relations Court (Procedure) Rules, 2024 was appropriate in the circumstances of this case;
(c) Whether the Respondent's employment was terminated as per his version of events, namely on 24th October 2024 without valid reason or process, or as per the Appellant's version, namely for absconding duty following a disciplinary process commenced on 18th November 2024;
(d) Whether the trial court properly applied the burden of proof under section 47(5) of the Employment Act, 2007, and whether that burden was discharged;
(e) Whether the reliefs awarded by the trial court were merited, and in particular whether the compensation awarded ought to be disturbed having regard to the fixed-term character of the Respondent's last contract of service; and
(f) Who shall bear the costs of this appeal.
E. ANALYSIS AND DETERMINATION
(a) The duty of the first appellate court
11. It is trite, and was correctly conceded by both counsel, that a first appellate court is under a duty to re-consider and re-evaluate the evidence adduced before the trial court and to reach its own independent conclusions, bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify, and giving allowance for that disadvantage (see Selle v Associated Motor Boat Co. Ltd [1968] EA 123; Rose Nafula Wanyama v Nusra Nasambu Chibanaga & Another [2020] KECA 933 [ eKLR). I note, however, that in the present case the trial court itself did not see or hear either witness testify, the suit having been disposed of on documents and submissions alone. This Court is, in that narrow sense, in as good a position as the trial court was to evaluate the documentary record, and I have approached the appeal on that footing, according no special deference to findings that were not, in truth, founded on an assessment of demeanour.
(b) Whether Rule 59 was properly engaged
12. The Court, in the exercise of its case management powers and pursuant to the overriding objective set out in sections 1A and 1B of the Civil Procedure Act (as applied to these proceedings) and the equivalent provisions of the Employment and Labour Relations Court Act, retains a wide discretion to regulate its own procedure, including permitting suits to be disposed of on the basis of documents and written submissions under Rule 59 of the Employment and Labour Relations Court (Procedure) Rules, 2024, without the calling of oral evidence. That discretion, however, is not to be exercised as a matter of course in every cause; it is best suited to disputes where the material facts are largely undisputed or are capable of safe determination from the documents themselves, without need to test the credibility of rival, irreconcilable accounts.
13. The present suit was not, with respect, an ideal candidate for that mode of disposal. It turned squarely on a sharp and irreconcilable conflict of fact: whether the Respondent absconded duty as alleged, when precisely his employment came to an end, and whether the show cause and disciplinary process relied upon by the Appellant was genuine or a document trail generated after the event. Such questions — going to the honesty and reliability of each party's account, and to inferences properly drawn from the sequence and authenticity of documents — are ordinarily best resolved through viva voce evidence tested by cross-examination, which affords a court the opportunity to probe inconsistencies of the kind that arise in this very record. A mis-engagement of Rule 59 in a cause of this character carries the risk of blurring the quality of the resulting judgment, and, ultimately, of occasioning injustice to one party or the other, since the court is left to resolve credibility from the face of the paper alone. I make this observation not to fault the trial court, which proceeded on the express consent of both parties and was not invited to do otherwise, and neither party has raised it as a ground of appeal; I make it, rather, as guidance for the conduct of similar causes in future, since, as will become apparent, the documentary record in this matter was, even taken at its highest for the Appellant, sufficiently self-defeating that the manner of disposal did not, in the result, occasion a miscarriage of justice.
(c) Whose version of the termination is to be believed: a critical determination
14. The resolution of this appeal turns, in the first instance, on which of the two competing accounts of the Respondent's separation from employment is to be accepted: his account, that he was sent home on 24th October 2024 without explanation and never recalled; or the Appellant's account, that he absconded duty from 28th October 2024 and was, after a disciplinary process, dismissed for that cause. This is the central and, in my view, determinative question in this appeal, for if the Respondent's account is correct, the termination was patently unfair, both substantively and procedurally; whereas if the Appellant's account is correct, an entirely different analysis would follow.
15. Having carefully re-evaluated the record, I am satisfied that the Respondent's version is the more probable and is to be preferred, for the following cumulative reasons.
(i) The Respondent's account was specific, consistent and contemporaneous. He pleaded and deposed to precise circumstances — the telephone call from the named Human Resource Officer, Maria, the instruction not to report back, the two-week wait, and his eventual exclusion from the premises — and reduced this account to writing in a demand letter dated 18th November 2024, well before this dispute crystallised into litigation. That letter, addressed to the Appellant and asserting in terms that the Respondent had already been terminated on 24th October 2024 "without justifiable cause and/or reason", was never specifically answered by the Appellant. An employer confronted with a detailed written assertion that it had already dismissed an employee, when in truth (on its case) that employee was merely absent without leave and still very much in its employment, would ordinarily be expected to say so, promptly and in terms. The Appellant did not reply to the demand letter at all.
(ii) The show cause notice relied upon by the Appellant bears, curiously, the very same date as the demand letter — 18th November 2024. The Appellant's explanation, that it dispatched its show cause notice by registered post from Mazeras in the late afternoon of that day and that the Respondent, upon receiving it that same evening, instructed advocates in Mombasa to draft and despatch a demand letter within hours, strains credulity. Registered mail is not delivered instantaneously upon being booked at the counter; and even taking the Appellant's case at its highest, the suggestion that the Respondent could receive a letter in Mazeras in the evening and, within that same evening, procure the drafting and dispatch of a formal demand letter by advocates in Mombasa is not a plausible sequence of events. The far more natural inference is the reverse of that contended for by the Appellant: that the Appellant, upon receiving the Respondent's demand letter asserting an unlawful dismissal that had already taken place, hurriedly generated a show cause notice bearing a matching date, in an attempt to create the appearance that a disciplinary process was already underway.
(iii) That inference is reinforced by a Warning Letter in the Appellant's own bundle, dated 28th October 2024, already recording "Absenteeism" against the Respondent on that very date. If, as this document suggests, the Appellant was alive to the Respondent's absence as early as 28th October 2024, no satisfactory explanation was proffered for why the show cause process was not commenced until three weeks later, on 18th November 2024 — the very day, on the Appellant's own account, that it says it first learned nothing further and chose, coincidentally, to act.
(iv) The Appellant did not produce, at trial or on appeal, any attendance register, clock-in record, duty roster, payroll record or other contemporaneous business record capable of independently corroborating the claim that the Respondent was absent from duty from 28th October 2024. This omission is telling, given that the Respondent's own unchallenged evidence was that the Appellant maintained a work register in which employees signed in and out for each shift. Nothing could have been easier for the Appellant than to produce that register, or extracts of it, to demonstrate — independently of its own say-so — that the Respondent was not on duty during the period in issue. It did not do so, and no explanation for that omission was offered.
(v) No minutes of any disciplinary hearing were produced, whether of the hearing said to have been convened on 25th November 2024 or of that said to have been convened on 9th December 2024. Nor did the Appellant plead or adduce any termination letter, or otherwise identify the date on which, or the person by whom, the decision to terminate the Respondent's employment was made. An employer that had genuinely conducted two separate disciplinary hearings, and had thereafter taken a considered decision to dismiss, could ordinarily be expected to produce at least one of these documents. The absence of all of them, taken together, supports the conclusion that no genuine disciplinary process, culminating in a considered decision, ever in fact took place.
(vi) Finally, I note that one of the leave forms exhibited by the Appellant itself — recording the Respondent's annual leave from 23rd to 26th October 2024, immediately preceding the very period said to mark the commencement of his absconding — bears a signature and thumbprint that are conspicuously superimposed and obscured, in a manner inconsistent with the clear and separated signatures and thumbprints appearing on the Appellant's other leave forms in the same bundle. Without drawing any final conclusion as to how that came to be, the irregularity does nothing to inspire confidence in the reliability of the Appellant's documentary case, and if anything adds to the accumulated doubt.
16. For all these reasons, I find, on a full re-evaluation of the record, that the Respondent's account is to be preferred: that he was sent home and effectively dismissed on 24th October 2024 without any valid reason being given to him, and that the show cause notice, the invitation(s) to disciplinary hearing, and the associated postal receipts were generated after that dismissal, and after receipt of the demand letter, as an attempt to retrofit a lawful appearance onto what had already occurred.
(d) The reverse burden of proof under section 47(5) of the Employment Act, 2007
17. Section 47(5) of the Employment Act, 2007 casts upon the employer the burden of proving that a termination of employment was fair, both as to the reason for it and as to the process by which it was carried out, once the employee has placed before the Court a case of termination. This is deliberately a reversal of the ordinary incidence of proof: the employee's evidential burden is comparatively light — it is discharged once he sets out, with reasonable particularity, the circumstances in which his employment came to an end — whereas the burden then cast upon the employer, who alone is ordinarily possessed of the records, decision-making documents and institutional knowledge bearing on the termination, is the heavier and more exacting one.
18. In the present case, the Respondent discharged the lighter burden resting upon him. He set out, in his verified Memorandum of Claim, his witness statement, and his contemporaneous demand letter, a specific, consistent and detailed account of the circumstances of his dismissal on 24th October 2024. That was sufficient to shift the heavier burden onto the Appellant to justify the termination, both substantively and procedurally.
19. The Appellant did not discharge that heavier burden. As already discussed, it produced no attendance or clock-in records for the material period, no minutes of any disciplinary hearing, and no termination letter or other document identifying the date or basis of the actual decision to dismiss. Section 10(6) and (7) of the Employment Act, 2007 obliges an employer to keep, for a period of five years, the written particulars of an employee's terms of service and, where such particulars or records are not produced in proceedings such as these, entitles the Court to treat the employee's version as established (see Abigael Jepkosgei Yator & Another v China Hanan International Co. Ltd [2018] KEELRC 2541 [eKLR). The Appellant, an operator of an industrial facility that on its own case maintained shift rosters and leave records, was uniquely placed to produce evidence — such as an attendance register — capable of independently verifying its claim of absconding. Its failure to do so, in the face of a specific and pointed challenge from the Respondent, must be resolved against it. I find that the Appellant failed to discharge the burden placed upon it by section 47(5) of the Act, and that the reason it proffered for the termination — absconding duty — was not established.
(e) The duty to inquire before treating absence as absconding
20. Desertion or absconding of duty is not established by the mere fact of an employee's absence; it requires, at a minimum, an unexplained and unauthorised absence in circumstances suggesting an intention not to return. Before an employer visits an employee with the drastic consequence of dismissal on that ground, elementary fairness — and indeed the very notion of what distinguishes absconding from an innocent or excusable absence — requires that the employer first make some reasonable effort to ascertain, whether by telephone call, a visit, or an inquiry of the employee's known contacts or colleagues, why the employee has not reported for duty. It is only where such reasonable efforts have been made and have failed to elicit an explanation that it becomes fair to treat continued and unexplained absence as desertion of duty warranting disciplinary action.
21. In the instant case, the Appellant proffered no evidence whatsoever of any attempt to reach the Respondent by telephone, in person, or otherwise, at any time between the alleged commencement of his absence on 28th October 2024 and the issuance of the show cause notice on 18th November 2024, a period of some three weeks. Given that the Respondent had, on the Appellant's own case, served it for well over a year, and had contact details recorded in its employment records (as evidenced by the show cause notice itself, which was addressed to him by name and identity card number), one would ordinarily expect an employer acting in good faith to attempt some form of contact before resorting to formal disciplinary process. None was shown. This omission is itself consistent with, and reinforces, the finding already made: that the show cause process was not a genuine inquiry into an ongoing, unexplained absence, but a reactive step taken after the fact.
(f) The reliance on the demand letter, and the insufficiency of the proof of service
22. Counsel for the Appellant placed heavy reliance on the date of the demand letter, submitting that it was received by the Appellant only after the show cause notice had already been despatched, and that this sequence exonerates the Appellant of the trial court's finding that its process was an afterthought. I do not find this submission persuasive, and it is not, in my assessment, made out on solid ground. As already explained, the coincidence of dates between the show cause notice and the demand letter — both dated 18th November 2024 — is itself suspicious rather than exculpatory; the physical improbability of the Respondent receiving a letter posted from Mazeras in the late afternoon and, that same evening, causing Mombasa-based advocates to draft and issue a formal demand letter bearing the identical date, renders the Appellant's proposed sequence of events inherently unlikely. The more probable sequence — and the one I accept — is that the demand letter was prompted by the dismissal that had already occurred on 24th October 2024, and that the show cause notice was the Appellant's reactive response to receipt of that demand letter, not the other way round.
23. I turn to the documents relied upon by the Appellant to prove that the show cause notice and the invitation to the disciplinary hearing were served upon the Respondent. These consist of payment receipts issued by the Postal Corporation of Kenya for the registration and postage of domestic letters. Such receipts record only that an item was booked and paid for at a post office counter; they are not certificates of posting in the fuller sense of confirming that a specific, identified item was accepted into the postal system addressed to a stated recipient at a stated address, still less are they proof that the item was ever delivered to, or came to the actual or constructive knowledge of, the addressee. There is no signed acknowledgment of receipt, no delivery confirmation, and no other evidence that either notice ever reached the Respondent. Where the Respondent has consistently and specifically denied being served, and where the burden lies on the Appellant to prove that he was afforded a genuine and effective opportunity to be heard, documents of this limited evidential character fall well short of discharging that burden.
(g) Conclusion on the fairness of the termination
24. Drawing the foregoing threads together — the specific and unrebutted account given by the Respondent; the suspicious coincidence of dates between the show cause notice and the demand letter, and the physical improbability of the Appellant's proposed sequence of events; the unexplained three-week gap between the Appellant's own Warning Letter of 28th October 2024 and the show cause notice of 18th November 2024; the absence of any attendance or clock-in records to substantiate absconding; the absence of minutes of either disciplinary hearing; the absence of any termination letter or pleaded date of dismissal for absconding; the absence of any evidence of a prior effort to contact the Respondent before resorting to disciplinary process; the insufficiency of the proof of service of the show cause and hearing notices; the irregularity apparent on the face of the leave form for 23rd to 26th October 2024; and the Appellant's own submission, inconsistent with its pleaded case, that the Respondent was summarily dismissed — I am satisfied that the trial court did not err in finding that the Respondent's termination was neither substantively nor procedurally fair. Indeed, on my own re-evaluation of the record, the termination bore all the hallmarks of a summary dismissal: sudden, unexplained at the time it occurred, and unaccompanied by any of the safeguards prescribed by sections 41 and 43 of the Employment Act, 2007. Ground 1 of the appeal accordingly fails and is dismissed.
F. RELIEFS
Notice pay, declaration and certificate of service
25. It follows from the foregoing that the declaration made by the trial court, that the Respondent's termination was unlawful and unfair, is upheld. The award of notice pay in the sum of Kshs. 9,327/-, computed on the consolidated wage established by the Appellant's own documents, and the order directing the issuance of a certificate of service, are similarly upheld, there being no proper basis, on the finding made above, to disturb them.
Compensation, and the significance of the fixed-term contract
26. I have, however, come to a different view on the quantum of compensation awarded for unfair termination. It was the Appellant's case, pleaded and supported by the contracts of employment it produced before the trial court, that the Respondent served it under a succession of fixed-term contracts, the last of which ran from 19th September 2024 to 19th December 2024, at the same consolidated wage of Kshs. 9,327/- adopted by the trial court in computing notice pay. This particular fact — the existence, terms and stipulated expiry date of the last written contract — was not specifically displaced by the Respondent. While the Respondent maintained, and I do not disturb the underlying finding, that his working relationship with the Appellant in substance and in fact stretched back to 2018, he did not controvert the specific terms of the last contract exhibited, including the date fixed for its expiry.
27. It is a well-settled principle governing fixed-term contracts of service that, where such a contract is wrongfully brought to an end before its stipulated date of expiry, the measure of the employee's loss — and, correspondingly, a material consideration in fixing compensation under sections 49 and 50 of the Employment Act, 2007 — is properly informed by the residue of the unexpired term. This is because, absent the wrongful act complained of, the contract would, in the ordinary course, have lapsed by effluxion of time on the date fixed for its expiry, and would not have continued indefinitely or been presumed renewed.
28. On the facts as found, the Respondent was sent away on 24th October 2
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1. This is a first appeal from the judgment of the Principal Magistrate's Court at Kaloleni (Hon. R. M. Amwayi, Principal Magistrate) delivered on 28th August 2025 in Kaloleni Employment & Labour Relations Cause No. E001 of 2025, in which the trial court found that the termination of the Respondent's employment by the Appellant was both substantively and procedurally unfair, and entered judgment for the Respondent for a declaration to that effect, one month's salary in lieu of notice of Kshs. 9,327/-, compensation for unfair termination of Kshs. 55,962/- (six months' gross salary), a certificate of service, costs of the suit, and interest at court rates from the date of judgment until payment in full.
2. Aggrieved, the Appellant lodged a Memorandum of Appeal dated 16th September 2025, and later filed a Supplementary Record of Appeal dated 7th November 2025 exhibiting the certified proceedings and judgment of the trial court. The appeal was canvassed and is determined on the record of appeal, the supplementary record, and the parties' rival written submissions, there being no request for oral highlighting.
B. BACKGROUND
3. The Respondent's case before the trial court, as pleaded in his Memorandum of Claim dated 13th January 2025 and his witness statement of even date, was that he was verbally employed by the Appellant on 9th July 2018 as a general labourer at its industrial facility at Uwanja wa Ndege, Mazeras, and that he worked continuously for six years and four months without ever being issued a written contract of service, despite his repeated requests for formalisation of his employment. He stated that he worked a day shift from 9th July 2018 to 31st August 2018, and thereafter a night shift, from 6.00 p.m. to 6.00 a.m., seven days a week, until his dismissal. He averred that on 24th October 2024, having just completed his night shift, he was telephoned by the Appellant's Human Resource Officer, one Maria, and informed that he should not report back to work in the evening; that upon inquiring why, he was told there was no work and that he would be called when he was needed; that he waited over two weeks without being recalled; and that when he presented himself at the Appellant's premises he was denied entry at the gate on the footing that he was no longer an employee. He contended that this amounted to a summary, unprocedural and unfair termination and, through his advocates, issued a demand letter dated 18th November 2024, which was received by the Appellant on 19th November 2024, before eventually filing suit.
4. The Appellant resisted the claim through a Memorandum of Response dated 3rd February 2025, admitting only paragraphs 1, 2, 17 and 18 of the Memorandum of Claim, being formal matters going to parties, jurisdiction and the absence of any other pending suit. On the merits, it pleaded that the Respondent was engaged not from 2018 but on a succession of distinct fixed-term contracts, the last of which ran from 19th September 2024 to 19th December 2024, at a consolidated wage of Kshs. 9,327/- per month; that on or about 28th October 2024 the Respondent absconded duty; that it consequently issued a show cause letter dated 18th November 2024 requiring an explanation and inviting him to a disciplinary hearing on 25th November 2024; that upon his failure to respond or attend, it issued a further reminder inviting him to a hearing on 9th December 2024, which he again ignored; and that it thereafter terminated his employment for absconding duty, following due process, such that neither notice nor compensation was payable.
5. By consent of the parties, recorded on 22nd May 2025, the suit proceeded to disposal under Rule 59 of the Employment and Labour Relations Court (Procedure) Rules, 2024, that is to say, on the basis of the witness statements, documents and written submissions filed by the parties, without the recording of viva voce evidence and without either party's witness being subjected to cross-examination.
6. In its judgment of 28th August 2025, the trial court found, in substance, that the Appellant's narrative of absconding was an afterthought conceived only after receipt of the Respondent's demand letter; that the Appellant had failed to discharge its burden under section 43 of the Employment Act, 2007 of proving a valid reason for termination; and that it had equally failed to comply with the procedural requirements of section 41 of the Act, there being no proof, by way of minutes or otherwise, that any disciplinary hearing was ever held. The court accordingly declared the termination unlawful and unfair and made the awards set out in paragraph 1 above.
C. THE APPEAL
Grounds of Appeal
7. The Memorandum of Appeal dated 16th September 2025 raises two grounds, which the Appellant elected to argue together:
(i) That the trial court erred in law and in fact in declaring that the Respondent was unfairly terminated, in total disregard of the law, the facts, the submissions and the evidence on record; and
(ii) That the trial court erred in law and misdirected itself in holding that the Respondent was entitled to one month's notice pay, compensation, costs of the suit and interest, in total disregard of the law and the evidence on record.
The Appellant's Submissions
8. Counsel for the Appellant submitted that, this being a first appeal, the Court is duty-bound to re-evaluate the evidence on record and arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses. It was submitted that the unchallenged documentary evidence produced before the trial court — the notice to show cause, the invitation to a disciplinary hearing, and the registered post receipts — demonstrated that the Appellant had a valid reason to terminate the Respondent, namely absconding of duty, and that it followed due process in doing so. It was contended that the trial court erred in treating the disciplinary process as an afterthought triggered by the demand letter, since the show cause notice was in fact issued and posted on 18th November 2024, a day before the Appellant received the demand letter on 19th November 2024; and that, if anything, it was the Respondent who was prompted to instruct his advocates to write the demand letter upon receiving the show cause notice. Counsel further submitted that once the Appellant had, through documentary evidence, discharged its burden under section 47(5) of the Employment Act, 2007, the onus shifted to the Respondent to prove unfair termination, which he failed to do. On the reliefs, it was submitted that, the termination having been for valid reason and following due process, no notice pay or compensation ought to have been awarded, and that in any event the Respondent had been summarily dismissed, so that no notice was payable to him.
The Respondent's Submissions
9. Counsel for the Respondent supported the judgment of the trial court in its entirety and urged that the appeal be dismissed with costs. It was submitted that the Appellant had spectacularly failed to prove, either before the trial court or on appeal, that the Respondent absconded duty from 28th October 2024 or at any other time, there being no attendance register, clock-in record, or similar business record produced, contrary to sections 10(6) and (7) of the Employment Act, 2007 and section 107(1) of the Evidence Act. It was contended that the Appellant's own timeline was an impossibility, since the Respondent could not plausibly have received a notice posted in Mazeras in the evening of 18th November 2024 and, in that same evening, have instructed advocates based in Mombasa to draft and dispatch a demand letter bearing the identical date. Counsel further submitted that the Appellant never produced minutes of any disciplinary hearing, never produced or pleaded the date of any termination letter, never showed that it made any effort to reach the Respondent by telephone or otherwise before resorting to a show cause letter, and never demonstrated compliance with section 18(5)(b) of the Employment Act as regards notifying the Labour Officer or depositing the Respondent's terminal dues. It was submitted that these omissions, taken together with the timing of the Appellant's documents, confirmed that the disciplinary process was contrived after the fact to cloak an already completed and unfair dismissal effected on 24th October 2024.
D. ISSUES FOR DETERMINATION
10. Having considered the record, the grounds of appeal and the rival submissions, I find that the following issues arise for determination:
(a) What is the duty of this Court, sitting as a first appellate court, on the record before it?
(b) Whether the disposal of the suit under Rule 59 of the Employment and Labour Relations Court (Procedure) Rules, 2024 was appropriate in the circumstances of this case;
(c) Whether the Respondent's employment was terminated as per his version of events, namely on 24th October 2024 without valid reason or process, or as per the Appellant's version, namely for absconding duty following a disciplinary process commenced on 18th November 2024;
(d) Whether the trial court properly applied the burden of proof under section 47(5) of the Employment Act, 2007, and whether that burden was discharged;
(e) Whether the reliefs awarded by the trial court were merited, and in particular whether the compensation awarded ought to be disturbed having regard to the fixed-term character of the Respondent's last contract of service; and
(f) Who shall bear the costs of this appeal.
E. ANALYSIS AND DETERMINATION
(a) The duty of the first appellate court
11. It is trite, and was correctly conceded by both counsel, that a first appellate court is under a duty to re-consider and re-evaluate the evidence adduced before the trial court and to reach its own independent conclusions, bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify, and giving allowance for that disadvantage (see Selle v Associated Motor Boat Co. Ltd [1968] EA 123; Rose Nafula Wanyama v Nusra Nasambu Chibanaga & Another [2020] KECA 933 [ eKLR). I note, however, that in the present case the trial court itself did not see or hear either witness testify, the suit having been disposed of on documents and submissions alone. This Court is, in that narrow sense, in as good a position as the trial court was to evaluate the documentary record, and I have approached the appeal on that footing, according no special deference to findings that were not, in truth, founded on an assessment of demeanour.
(b) Whether Rule 59 was properly engaged
12. The Court, in the exercise of its case management powers and pursuant to the overriding objective set out in sections 1A and 1B of the Civil Procedure Act (as applied to these proceedings) and the equivalent provisions of the Employment and Labour Relations Court Act, retains a wide discretion to regulate its own procedure, including permitting suits to be disposed of on the basis of documents and written submissions under Rule 59 of the Employment and Labour Relations Court (Procedure) Rules, 2024, without the calling of oral evidence. That discretion, however, is not to be exercised as a matter of course in every cause; it is best suited to disputes where the material facts are largely undisputed or are capable of safe determination from the documents themselves, without need to test the credibility of rival, irreconcilable accounts.
13. The present suit was not, with respect, an ideal candidate for that mode of disposal. It turned squarely on a sharp and irreconcilable conflict of fact: whether the Respondent absconded duty as alleged, when precisely his employment came to an end, and whether the show cause and disciplinary process relied upon by the Appellant was genuine or a document trail generated after the event. Such questions — going to the honesty and reliability of each party's account, and to inferences properly drawn from the sequence and authenticity of documents — are ordinarily best resolved through viva voce evidence tested by cross-examination, which affords a court the opportunity to probe inconsistencies of the kind that arise in this very record. A mis-engagement of Rule 59 in a cause of this character carries the risk of blurring the quality of the resulting judgment, and, ultimately, of occasioning injustice to one party or the other, since the court is left to resolve credibility from the face of the paper alone. I make this observation not to fault the trial court, which proceeded on the express consent of both parties and was not invited to do otherwise, and neither party has raised it as a ground of appeal; I make it, rather, as guidance for the conduct of similar causes in future, since, as will become apparent, the documentary record in this matter was, even taken at its highest for the Appellant, sufficiently self-defeating that the manner of disposal did not, in the result, occasion a miscarriage of justice.
(c) Whose version of the termination is to be believed: a critical determination
14. The resolution of this appeal turns, in the first instance, on which of the two competing accounts of the Respondent's separation from employment is to be accepted: his account, that he was sent home on 24th October 2024 without explanation and never recalled; or the Appellant's account, that he absconded duty from 28th October 2024 and was, after a disciplinary process, dismissed for that cause. This is the central and, in my view, determinative question in this appeal, for if the Respondent's account is correct, the termination was patently unfair, both substantively and procedurally; whereas if the Appellant's account is correct, an entirely different analysis would follow.
15. Having carefully re-evaluated the record, I am satisfied that the Respondent's version is the more probable and is to be preferred, for the following cumulative reasons.
(i) The Respondent's account was specific, consistent and contemporaneous. He pleaded and deposed to precise circumstances — the telephone call from the named Human Resource Officer, Maria, the instruction not to report back, the two-week wait, and his eventual exclusion from the premises — and reduced this account to writing in a demand letter dated 18th November 2024, well before this dispute crystallised into litigation. That letter, addressed to the Appellant and asserting in terms that the Respondent had already been terminated on 24th October 2024 "without justifiable cause and/or reason", was never specifically answered by the Appellant. An employer confronted with a detailed written assertion that it had already dismissed an employee, when in truth (on its case) that employee was merely absent without leave and still very much in its employment, would ordinarily be expected to say so, promptly and in terms. The Appellant did not reply to the demand letter at all.
(ii) The show cause notice relied upon by the Appellant bears, curiously, the very same date as the demand letter — 18th November 2024. The Appellant's explanation, that it dispatched its show cause notice by registered post from Mazeras in the late afternoon of that day and that the Respondent, upon receiving it that same evening, instructed advocates in Mombasa to draft and despatch a demand letter within hours, strains credulity. Registered mail is not delivered instantaneously upon being booked at the counter; and even taking the Appellant's case at its highest, the suggestion that the Respondent could receive a letter in Mazeras in the evening and, within that same evening, procure the drafting and dispatch of a formal demand letter by advocates in Mombasa is not a plausible sequence of events. The far more natural inference is the reverse of that contended for by the Appellant: that the Appellant, upon receiving the Respondent's demand letter asserting an unlawful dismissal that had already taken place, hurriedly generated a show cause notice bearing a matching date, in an attempt to create the appearance that a disciplinary process was already underway.
(iii) That inference is reinforced by a Warning Letter in the Appellant's own bundle, dated 28th October 2024, already recording "Absenteeism" against the Respondent on that very date. If, as this document suggests, the Appellant was alive to the Respondent's absence as early as 28th October 2024, no satisfactory explanation was proffered for why the show cause process was not commenced until three weeks later, on 18th November 2024 — the very day, on the Appellant's own account, that it says it first learned nothing further and chose, coincidentally, to act.
(iv) The Appellant did not produce, at trial or on appeal, any attendance register, clock-in record, duty roster, payroll record or other contemporaneous business record capable of independently corroborating the claim that the Respondent was absent from duty from 28th October 2024. This omission is telling, given that the Respondent's own unchallenged evidence was that the Appellant maintained a work register in which employees signed in and out for each shift. Nothing could have been easier for the Appellant than to produce that register, or extracts of it, to demonstrate — independently of its own say-so — that the Respondent was not on duty during the period in issue. It did not do so, and no explanation for that omission was offered.
(v) No minutes of any disciplinary hearing were produced, whether of the hearing said to have been convened on 25th November 2024 or of that said to have been convened on 9th December 2024. Nor did the Appellant plead or adduce any termination letter, or otherwise identify the date on which, or the person by whom, the decision to terminate the Respondent's employment was made. An employer that had genuinely conducted two separate disciplinary hearings, and had thereafter taken a considered decision to dismiss, could ordinarily be expected to produce at least one of these documents. The absence of all of them, taken together, supports the conclusion that no genuine disciplinary process, culminating in a considered decision, ever in fact took place.
(vi) Finally, I note that one of the leave forms exhibited by the Appellant itself — recording the Respondent's annual leave from 23rd to 26th October 2024, immediately preceding the very period said to mark the commencement of his absconding — bears a signature and thumbprint that are conspicuously superimposed and obscured, in a manner inconsistent with the clear and separated signatures and thumbprints appearing on the Appellant's other leave forms in the same bundle. Without drawing any final conclusion as to how that came to be, the irregularity does nothing to inspire confidence in the reliability of the Appellant's documentary case, and if anything adds to the accumulated doubt.
16. For all these reasons, I find, on a full re-evaluation of the record, that the Respondent's account is to be preferred: that he was sent home and effectively dismissed on 24th October 2024 without any valid reason being given to him, and that the show cause notice, the invitation(s) to disciplinary hearing, and the associated postal receipts were generated after that dismissal, and after receipt of the demand letter, as an attempt to retrofit a lawful appearance onto what had already occurred.
(d) The reverse burden of proof under section 47(5) of the Employment Act, 2007
17. Section 47(5) of the Employment Act, 2007 casts upon the employer the burden of proving that a termination of employment was fair, both as to the reason for it and as to the process by which it was carried out, once the employee has placed before the Court a case of termination. This is deliberately a reversal of the ordinary incidence of proof: the employee's evidential burden is comparatively light — it is discharged once he sets out, with reasonable particularity, the circumstances in which his employment came to an end — whereas the burden then cast upon the employer, who alone is ordinarily possessed of the records, decision-making documents and institutional knowledge bearing on the termination, is the heavier and more exacting one.
18. In the present case, the Respondent discharged the lighter burden resting upon him. He set out, in his verified Memorandum of Claim, his witness statement, and his contemporaneous demand letter, a specific, consistent and detailed account of the circumstances of his dismissal on 24th October 2024. That was sufficient to shift the heavier burden onto the Appellant to justify the termination, both substantively and procedurally.
19. The Appellant did not discharge that heavier burden. As already discussed, it produced no attendance or clock-in records for the material period, no minutes of any disciplinary hearing, and no termination letter or other document identifying the date or basis of the actual decision to dismiss. Section 10(6) and (7) of the Employment Act, 2007 obliges an employer to keep, for a period of five years, the written particulars of an employee's terms of service and, where such particulars or records are not produced in proceedings such as these, entitles the Court to treat the employee's version as established (see Abigael Jepkosgei Yator & Another v China Hanan International Co. Ltd [2018] KEELRC 2541 [eKLR). The Appellant, an operator of an industrial facility that on its own case maintained shift rosters and leave records, was uniquely placed to produce evidence — such as an attendance register — capable of independently verifying its claim of absconding. Its failure to do so, in the face of a specific and pointed challenge from the Respondent, must be resolved against it. I find that the Appellant failed to discharge the burden placed upon it by section 47(5) of the Act, and that the reason it proffered for the termination — absconding duty — was not established.
(e) The duty to inquire before treating absence as absconding
20. Desertion or absconding of duty is not established by the mere fact of an employee's absence; it requires, at a minimum, an unexplained and unauthorised absence in circumstances suggesting an intention not to return. Before an employer visits an employee with the drastic consequence of dismissal on that ground, elementary fairness — and indeed the very notion of what distinguishes absconding from an innocent or excusable absence — requires that the employer first make some reasonable effort to ascertain, whether by telephone call, a visit, or an inquiry of the employee's known contacts or colleagues, why the employee has not reported for duty. It is only where such reasonable efforts have been made and have failed to elicit an explanation that it becomes fair to treat continued and unexplained absence as desertion of duty warranting disciplinary action.
21. In the instant case, the Appellant proffered no evidence whatsoever of any attempt to reach the Respondent by telephone, in person, or otherwise, at any time between the alleged commencement of his absence on 28th October 2024 and the issuance of the show cause notice on 18th November 2024, a period of some three weeks. Given that the Respondent had, on the Appellant's own case, served it for well over a year, and had contact details recorded in its employment records (as evidenced by the show cause notice itself, which was addressed to him by name and identity card number), one would ordinarily expect an employer acting in good faith to attempt some form of contact before resorting to formal disciplinary process. None was shown. This omission is itself consistent with, and reinforces, the finding already made: that the show cause process was not a genuine inquiry into an ongoing, unexplained absence, but a reactive step taken after the fact.
(f) The reliance on the demand letter, and the insufficiency of the proof of service
22. Counsel for the Appellant placed heavy reliance on the date of the demand letter, submitting that it was received by the Appellant only after the show cause notice had already been despatched, and that this sequence exonerates the Appellant of the trial court's finding that its process was an afterthought. I do not find this submission persuasive, and it is not, in my assessment, made out on solid ground. As already explained, the coincidence of dates between the show cause notice and the demand letter — both dated 18th November 2024 — is itself suspicious rather than exculpatory; the physical improbability of the Respondent receiving a letter posted from Mazeras in the late afternoon and, that same evening, causing Mombasa-based advocates to draft and issue a formal demand letter bearing the identical date, renders the Appellant's proposed sequence of events inherently unlikely. The more probable sequence — and the one I accept — is that the demand letter was prompted by the dismissal that had already occurred on 24th October 2024, and that the show cause notice was the Appellant's reactive response to receipt of that demand letter, not the other way round.
23. I turn to the documents relied upon by the Appellant to prove that the show cause notice and the invitation to the disciplinary hearing were served upon the Respondent. These consist of payment receipts issued by the Postal Corporation of Kenya for the registration and postage of domestic letters. Such receipts record only that an item was booked and paid for at a post office counter; they are not certificates of posting in the fuller sense of confirming that a specific, identified item was accepted into the postal system addressed to a stated recipient at a stated address, still less are they proof that the item was ever delivered to, or came to the actual or constructive knowledge of, the addressee. There is no signed acknowledgment of receipt, no delivery confirmation, and no other evidence that either notice ever reached the Respondent. Where the Respondent has consistently and specifically denied being served, and where the burden lies on the Appellant to prove that he was afforded a genuine and effective opportunity to be heard, documents of this limited evidential character fall well short of discharging that burden.
(g) Conclusion on the fairness of the termination
24. Drawing the foregoing threads together — the specific and unrebutted account given by the Respondent; the suspicious coincidence of dates between the show cause notice and the demand letter, and the physical improbability of the Appellant's proposed sequence of events; the unexplained three-week gap between the Appellant's own Warning Letter of 28th October 2024 and the show cause notice of 18th November 2024; the absence of any attendance or clock-in records to substantiate absconding; the absence of minutes of either disciplinary hearing; the absence of any termination letter or pleaded date of dismissal for absconding; the absence of any evidence of a prior effort to contact the Respondent before resorting to disciplinary process; the insufficiency of the proof of service of the show cause and hearing notices; the irregularity apparent on the face of the leave form for 23rd to 26th October 2024; and the Appellant's own submission, inconsistent with its pleaded case, that the Respondent was summarily dismissed — I am satisfied that the trial court did not err in finding that the Respondent's termination was neither substantively nor procedurally fair. Indeed, on my own re-evaluation of the record, the termination bore all the hallmarks of a summary dismissal: sudden, unexplained at the time it occurred, and unaccompanied by any of the safeguards prescribed by sections 41 and 43 of the Employment Act, 2007. Ground 1 of the appeal accordingly fails and is dismissed.
F. RELIEFS
Notice pay, declaration and certificate of service
25. It follows from the foregoing that the declaration made by the trial court, that the Respondent's termination was unlawful and unfair, is upheld. The award of notice pay in the sum of Kshs. 9,327/-, computed on the consolidated wage established by the Appellant's own documents, and the order directing the issuance of a certificate of service, are similarly upheld, there being no proper basis, on the finding made above, to disturb them.
Compensation, and the significance of the fixed-term contract
26. I have, however, come to a different view on the quantum of compensation awarded for unfair termination. It was the Appellant's case, pleaded and supported by the contracts of employment it produced before the trial court, that the Respondent served it under a succession of fixed-term contracts, the last of which ran from 19th September 2024 to 19th December 2024, at the same consolidated wage of Kshs. 9,327/- adopted by the trial court in computing notice pay. This particular fact — the existence, terms and stipulated expiry date of the last written contract — was not specifically displaced by the Respondent. While the Respondent maintained, and I do not disturb the underlying finding, that his working relationship with the Appellant in substance and in fact stretched back to 2018, he did not controvert the specific terms of the last contract exhibited, including the date fixed for its expiry.
27. It is a well-settled principle governing fixed-term contracts of service that, where such a contract is wrongfully brought to an end before its stipulated date of expiry, the measure of the employee's loss — and, correspondingly, a material consideration in fixing compensation under sections 49 and 50 of the Employment Act, 2007 — is properly informed by the residue of the unexpired term. This is because, absent the wrongful act complained of, the contract would, in the ordinary course, have lapsed by effluxion of time on the date fixed for its expiry, and would not have continued indefinitely or been presumed renewed.
28. On the facts as found, the Respondent was sent away on 24th October 2
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