The appeal arises from the judgment delivered on 27 August 2025 in Mombasa MCELRC E161 of 2023. The appellant is seeking that the entire judgment and decree be set aside with a dismissal of the claim in its entirety.
The background to the appeal is a claim filed by the respondent before the trial court. His case was that on 1 January 2025, he was employed as a tyre man in the appellant’s Kibarani workshop department in Mombasa County. His wage was Ksh. 25,750 per month without payment of a house allowance. He worked until 9 March 2023, when he sustained a work injury accident and was admitted to the hospital and treated. The appellant paid part of the medical bills and has refused to make full payment. After the treatment, the respondent reported to work, but the manager terminated his employment on the grounds that, due to the injuries he had suffered, his services were no longer required. The respondent claimed that his employment was an unlawful and unfair termination of his employment and thus claimed:
a) Notice pay Ksh. 25,750.
b) Unpaid holidays worked for 7 years, Ksh. 30,030.
c) Unpaid leave days worked for 7 years, Ksh. 126,126.
d) 12 months' compensation Ksh. 309,000.
e) Payment for the contract period of 6 months, KSh. 154,500.
f) 12% salary deduction as pension for 87 months, Ksh. 268,830.
g) Unpaid overtime for 87 months, Ksh. 412,380
h) Service pay for 7 years Ksh. 90,125.
i) Costs of the suit.
In response, the appellant admitted that the respondent was employed on 1 August 2022 under a one-year contract expiring on 1 August 2023. He worked for 3 months in 2016, and after the short-term contract expired, he was not engaged until 2022, when he was offered a one-year contract. Employment was thus not continuous as alleged. There was no termination of employment as a result of the injury on 9 March 2023, as alleged, because the respondent was out of the office due to injuries he had sustained. He presented himself before the company doctor on 16 March 2023, and a report was filed indicating that he had suffered from other ailments, which did not match the injuries sustained at the time. There is a medical report dated 16 March 2023. The appellant’s case was that the respondent became uncooperative and often misrepresented facts to his immediate supervisor, especially the lie that he had been unwell, while in fact he was not. On 3 February 2023, the respondent reported to work and was given a sick sheet to be completed by the attending doctor at Likoni District Hospital, but did not return it. He was given 15 days' sick leave pursuant to company policy. He was sent to the company doctor, who filed a complaint against the respondent for asking him to lend the respondent money. A formal warning was issued, leading to absenteeism. Despite being cleared by the company doctor to resume work, the respondent refused to comply, and the appellant sent him to an osteopath, who cleared him to have recovered from his injury, but the respondent insisted that he was unwell. He later stopped attending work. The claims made are not justified.
The learned magistrate heard the parties and held that there was unfair termination of employment and hence issued the following awards:
a) Notice pay Ksh. 25,750.
b) Leave pay Ksh. 54,054.
c) 8 months' compensation Ksh. 206,000.
d) Costs and interests.
Aggrieved by the judgment, the appellant argues that the learned magistrate erred in law and fact by failing to consider the evidence, in particular the medical report by Dr Mansoor Tayabali dated 16 March 2023, which stated that, as at 16 March 2025, the respondent was receiving treatment. There is an error in the finding that employment was from 2017 to 2021, despite evidence of a term contract.
Other grounds of appeal are that the learned magistrate erred in law and fact in finding that there was unfair treatment of employment and that there was no report to the labour office regarding the respondent’s desertion; hence, the awards made should be set aside, and the appeal allowed with costs.
In the appeal, the appellant submitted that the respondent absconded from duty and was not terminated, as evidenced. Under section 45(2) of the Employment Act (the Act), there is a definition of unfair termination of employment where there is no valid and fair reason. In this case, there was no termination of employment as alleged. Through desertion, the respondent terminated his employment. Under section 47(5) of the Act, the respondent did not prove a case of unfair termination of employment as held in Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR.
The appellant submitted that the respondent alleged the manager terminated his employment on 9 March 2023, but that on that date, he was still being treated by the company doctor. A report was issued confirming that he was fit to work, but he declined and absconded from duty. In BIFU v Barclays Bank of Kenya Ltd [2014] eKLR, the court held that being ill is not wrong, but the employee must bring such a matter to the employer's attention within a reasonable time.
The trial court proceeded on the wrong principles, holding that there was no due process and thus an unfair termination of employment. The evidence presented was not analysed, resulting in wrongful awards that should be set aside.
The respondent submitted that the assertion of desertion of duty is unsupported by evidence. In Paul Opiyo Owudu v Digital Sanitation Services Ltd, the court held that the employee did not terminate his employment through desertion. The employer must take action to address such conduct and file a report with the Labour Officer under section 18(5) (b) of the Act.
In this case, there was no due process as required in Galgalo Jarso Jillo v Agricultural Finance Corporation [2021] eKLR and Muthaiga Country Club v KUDHEIHA [2017] eKLR. The appellant did not produce any evidence regarding the respondent's alleged conduct. The judgment of the trial court should be affirmed, and the appeal dismissed with costs.
Determination
This being a first appeal, the court is required to review the record, assess the findings and make its conclusion. However, take into account that the trial court had the opportunity to see and hear the witnesses.
The appellant asserts that the respondent deserted duty after being assessed by the company doctor on 16 March 2023, who found the respondent fit to resume work. That such desertion of duty led to the frustration of his employment, and thus, he cannot claim unfair termination of employment.
The appeal also argues that the respondent was on a one-year contract from 1 August 2022 to 1 August 2023. He deserted duty on 16 March 2023.
The respondent asserts that on 9 March 2023, the manager and the human resources manager terminated his employment after a work-related injury. That he had been employed from 2015 until 9 March 2023.
The applicant filed various work records, including the contract dated 1 August 2022. Indeed, under section 10(3) of the Act, an employer may secure the employment relationship by means of a written contract. A term contract is thus lawful and legitimate as held in Maganga v Jenebys Enterprises Limited [2026] KEELRC 429 (KLR) and Tarmal Wire Products Limited v Munguti [2024] KEELRC 1559 (KLR).
Based on the work records produced by the appellant, the employer, the respondent had a one-year term contract. There was previous employment in 2017 that applied to a separate period and outside what can be claimed under section 89 of the Act.
The assertion of desertion of duty is an act of gross misconduct contrary to section 44 of the Act. Indeed, as submitted by the respondent, upon alleged desertion of duty, the employer has a duty to terminate the employment relationship after demonstrating efforts to locate the employee. To close the relationship, if the employee cannot be traced to render an account on desertion of duty, notice must be issued to the labour officer. See Kisero v Wabwire [2025] KEELRC 176 (KLR) and Mehta Electricals Limited v Rumbika [2025] KEELRC 1239 (KLR).
In this case, where the respondent failed to report to work after the medical assessment and report, the appellant left him at large. He was not issued a notice to show cause or invited to a disciplinary hearing. He was taken to have frustrated his employment. This is contrary to section 41(2) of the Act, which requires that notice be issued to allow the employee to make his representations.
The learned magistrate addressed the facts and the law in this regard well. There was no due process leading to the unfair termination of employment. Notice pay and compensation were well assessed. However, the allocation of 8 months was based on the respondent’s employment commencing in 2015 and ending in 2023. As noted above, there was a one-year term contract. An award of 3 months is hence appropriate at Ksh. 25,750 x 3 = Ksh. 77,250.
On the award of leave pay for 7 years, under the one-year contract, the respondent had served for 6 months. Under section 28 of the Act, his leave days should be prorated to not less than one and three-quarter days of leave with full pay, in respect of each completed month of service in that period, to be taken consecutively. At 25,750/30 x 1.75 x 6 =9,012.50.
On costs, the respondent's claims were partially successful. He is entitled to 50% of his costs.
Accordingly, judgment in Mombasa MCELRC No. E161 of 2023 is reviewed in the following terms:
a) Employment terminated unlawfully and unfairly.
b) Compensation Ksh. 77,250.
c) Notice pay Ksh. 25,750.
d) Leave pay Ksh. 9,012.50.
e) For the appeal, each party bears its costs. For the trial court, the respondent is awarded 50% of his costs.
Delivered at Nairobi on 16 day of April 2026.
M. Mbaru
Judge