1. From what the Appellant considered as a Memorandum of Appeal dated 4th March, 2020 the Appellant appeals the judgment of the Honourable E. Wanjala on the grounds that:
a) The learned magistrate erred in law by placing the burden of proof on special damages on an employee who is not a custodian of employment records and in complete disregard of sections 9(1), (2), 10 and 74 of the Employment Act.
b) The learned magistrate erred in law by failing to award the appellant his notice pay in accordance with the minimum wage for a heavy commercial driver in complete disregard to section 48(1), (2) of the Labour Institutions Act
c) The learned magistrate erred in law by failing to award the appellant his leave pay in complete disregard to section 28 of the Employment Act.
d) The learned magistrate erred in law by failing to award the appellant his underpayment in complete disregard to section 48(1), (2) of the Labour Institutions Act and section 18 of the Employment Act.
e) The learned magistrate erred in law by failing to award the appellant his salary arrears for the month of March 2017 in complete disregard to section 18 of the Employment Act and Minimum Wage Order of 2017
f) The learned magistrate erred in law by failing to award the appellant house allowance in complete disregard to section 20 and 31 of the Employment Act
g) The learned magistrate erred in law by failing to give reasons as to why the appellant having worked for over 8 years was being granted three months’ only in complete disregard to section 49 and 50 of the Employment Act
h) The learned magistrate erred in law by failing to award the appellant for public holidays that he worked in complete disregard to section 10 and 74 of the Employment Act
i) The learned magistrate erred in law by failing to award the appellant overtime that he worked as claimed in complete disregard to section 10, 18, 27 and 74 of the Employment Act and the Minimum Wage Order, 2017.
j) The learned magistrate erred in law by failing to award the appellant for his service gratuity yet he was not registered to any pension scheme in complete disregard to section 35(5) of the Employment Act
2. The Appellant therefore prayed to be awarded the heads of claim that the trial court declined to award.
3. The appeal was disposed of by way of written submissions and from the record only the appellant filed submissions
APPELLANT’S SUBMISSIONS
4. The Appellant’s advocate Mr. Wetaba submitted that the section10(7) of the Employment Act places the responsibility to keep and avail employment records on the Court on the employer. The employer (respondent herein) did not avail the records before the trial court. Further that section 74 of the Act places an obligation on the employer to keep records and specifies the nature of the records to be kept. Counsel further submitted that it was the obligation of the employer to reduce a contract of employment into writing. The respondent herein failed to do so.
5. Concerning minimum wage, Counsel submitted that section 48(1)(b) of the Labour Institutions Act provided that minimum wage orders and wage regulations were part and parcel of a contract. Further that Minimum Wage Orders constituted minimum terms and conditions of employment. It was his submission that no payslip was issued yet the trial court still found in the respondent’s favour. In this respect, counsel relied on the case of Matoke v. Suchak KEELR 2393(KLR).
6. On the issue of notice pay, Mr. Wetaba submitted that the trial court awarded Kshs. 20,000/- which was an underpayment as the appellant’s basic salary as a driver for heavy commercial vehicles was Kshs. 29,169. Concerning leave, counsel submitted that leave was an employment right and that the respondent did not avail leave application forms to contest the prayer but the trial court still disallowed the claim. Regarding house allowance, counsel submitted that there was no evidence that the appellant was paid a consolidated salary to disentitle him from claiming house allowance.
7. Concerning compensation for unfair termination, the trial Court awarded the appellant 3 months’ salary without providing any justification for the award. Counsel submitted that the trial court ought to have considered the appellant’s length of service and the fact that he was not at fault leading to the termination. On the issue of overtime, counsel submitted that at page 20 of the record of appeal, there was a receipt showing the claimant fueled motor vehicle registration number KAP 712V at 6:11 a.m clearly showing that he would start work from 7:00 a.m. Counsel complained. That the trial court did not give any reason why the appellant’s evidence was rejected.
8. Concerning NSSF deductions, Counsel submitted that it was wrong for the trial court to order the payment of the amounts deducted from salary to NSSF yet he was not registered with NSSF. The appellant contended that not being registered with NSSF or any other pension scheme, he was entitled to gratuity.
DETERMINATION
9. This appeal turns around the issue whether the trial court was justified in rejecting the heads of claim presented by the appellant yet the respondent never provided any evidence to the contrary. Counsel for the appellant drew the Court’s attention to the provisions of section 10 and 74 of the Employment Act on employment particulars and keeping of records respectively. These responsibilities are conferred by law on the employer.
10. This Court as first appellate Court is guided by the principles set out in several decided cases by it and the Court of Appeal. For instance the Court of Appeal for East Africa in the case of Peters –vs- Sunday Post Limited [1958] EA 424 stated as follows:
“…the appropriate standard of review established in cases of appeal can be stated in three complementary principles:
i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;
ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and
iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.
11. The Court has carefully reviewed the record of appeal herein especially the proceedings and judgment of the trial court and noted that the matter proceeded as an undefended cause. This however did not lessen the burden of proof apportioned to both parties by section 47(5) of the Employment Act which is mutually exclusive. That is to say, failure or omission by a party does not absolve the other party from its burden of proof.
12. Concerning NSSF contributions the claimant produced the Muster Roll (p19 Record of Appeal), which showed a monthly deduction of Kshs. 200 as NSSF contribution. The appellant alleged that the respondent did not remit the deductions. This allegation could have been supported by a statement from NSSF or a letter showing the appellant was never registered as alleged. NSSF membership is compulsory and statutory hence the trial court was justified in making the order.
13. On the issue of underpayment, the appellant alleged that he was a truck driver and was entitled to a salary of Kshs. 29,169/- per month yet did not furnish the trial court with any evidence such as his staff card or driver’s license to show he was a truck driver. Besides, the trial court rightly noted that the Muster Roll produced by the appellant did not provide any information to support his claim that he was a truck driver. In the circumstances the trial court was justified in disallowing the claim for underpayment.
14. On the issue of leave, the claimant claimed Kshs.233,628/- on account of leave accrued but not taken from 2011 to 2017. Leave being a continuing injury is actionable within one year after cessation thereof. The claimant was terminated in March, 2018 and filed the suit herein on 2nd March, 2018. He could therefore only claim leave for the three years preceding his termination in line with section 90 of the Employment Act the rest being statute barred.
15. On the issue of payment for work during public holidays, the claimant did not come clear in his evidence before the trial about the nature of the work he was doing that required him to work overtime and during public holidays. The Court having held that he did not present any or sufficient evidence before the trial court that he was a truck driver. One fuel receipt was not sufficient to show the claimant was working overtime. The trial Court was therefore justified in rejecting the claim.
16. The Court notes that respondent neither filed any response to the claim nor participate in the proceedings before the trial court or this appeal. The obligation to draw a contract of employment giving particulars thereof in conferred on the employer by section 10 of the Employment Act. Further under section 74, the employer is obligated to keep employment records.
17. Regarding compensation for unfair termination, the appellant was right in faulting the trial court for awarding the claimant three months salary without assigning any reason. Compensation under section 49 requires to be justified. The court normally takes into consideration the length of service of the employee, his age, the circumstances under which the termination occurred and the manner of termination and subsequent conduct of the employer among others. The appellant herein was employed in 2011 therefore at the time of termination in 2018, he had served the respondent for approximately seven years. Apart from saying he worked as a truck driver, he never produced any evidence showing he was such or even a driver. In the circumstances an award of six months’ salary was reasonable in the circumstances.
18. In the circumstances foregoing the appeal is found merited in certain respects and is hereby allowed as follows.
i. One month’s salary in lieu of notice……Kshs. 20,000/-
ii. Six months’ salary as compensation for unfair termination………………………………………….120,000/-
iii. Three years accrued leave……………………………60,000
Total 200,000/-
iv. iv) The claimant shall have costs at the lower court scale assessed based on the revised decretal sum
19. It is so ordered.
Dated at Nairobi this ……… day of…………. 2025
Delivered virtually this……… day of ………….2025
Abuodha Nelson Jorum
Presiding Judge-Appeals Division