The appeal arises from the judgment delivered on 6 January 2023 in Mombasa CMERLC No. E290 of 2023. The appellant seeks that the appeal be allowed, the trial court's judgment set aside, and a decision in his favour be substituted.
The appeal is that the learned magistrate erred in law and fact by deciding that the appellant’s suit was based on resignation and dismissing his claims. The trial court failed to recognise that, based on the materials and evidence on record, the appellant had demonstrated his case for the dues owed to him at the time of resignation. The judgment should, therefore, be reviewed to permit the claims with costs.
The background of the claim is that the appellant was employed by the respondent as a turn man from 2 January 2016 to 1 March 2019, when he was promoted to a clerk. He resigned on 15 February 2020. His claims were that, while working for the respondent, he was not permitted to take annual leave, off days, or public holidays, and was not paid a house allowance. He also alleged underpayment of his wages.
The appellant submitted that a resignation from employment does not extinguish an employee’s entitlement to accrue dues at the end of employment. Section 18(5)(b) of the Employment Act allows an employee to claim their terminal dues upon cessation of employment, as held in Okode v Tejani [2025] eKLR and the case of Wilson Aron v Bokhol Transporters Limited ELRCA No. 185 of 2024.
The appellant submitted that he resigned from his employment with the respondent, which was accepted. However, at the time of his resignation, there were unpaid dues owing to underpayment, off days, annual leave, and house allowances. The trial court failed to address these claims separately from the resignation. Under section 35(5) of the Employment Act, he was entitled to service pay where the employer made no statutory payments.
The claims made should be awarded as pleaded.
The respondent attended on 3 April and 29 April 2025 and agreed to file written submissions by 13 May 2025. None were filed. The appeal is not opposed.
Determination
This is a first appeal. The court must review and reevaluate the entire record and make its conclusions.
Although the respondent did not submit any written statements, what appears to the court is that the judgment leading to this appeal was delivered on 6 January 2023. The appeal was filed on 15 November 2024. The appellant obtained leave to file an appeal out of time as required under the Employment and Labour Relations Court (Procedure) Rules. See Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) and in Kenya Ports Authority v Silas Obengele Civil Application No Nai 297 of 2004 [2006] 2 KLR 112.
As the employer, the respondent confirmed that the appellant was employed from 2 January 2016 to 20 June 2020, when he is alleged to have deserted duty, hence terminating his employment. The case was that the appellant carelessly transported 200.85 MT of pre-painted galvanised steel rolls, resulting in excessive damage to the coils, and it was charged Ksh 6,131,166. The appellant then vanished and abandoned the vehicle at Mepani & Sons Investment Limited's yard, resulting in the respondent losing the entire business.
The respondent issued various notices to the appellant to resume his duties, to no avail.
An employee who absconds from duty, remains absent without permission or notice from the employer, or fails to account for their absence from work commits gross misconduct as defined under section 44 of the Employment Act (the Act). Such an employee is liable to summary dismissal as held in Alomba v Green Park Golf & Country Complex t/a Great Rift Valley Lodge & Golf Resort [2025] KECA 378 (KLR). However, the employer must notify the subject employee to attend and make their representations under section 41(2) of the Act. Where the employee fails to attend or address, the employer can sanction with summary dismissal with notice to the Labour Officer under section 18 of the Act.
In this case, the appellant testified that he resigned from his employment due to the low salary. He resigned on 20 June 2020 and did not issue a notice to the respondent, his employer.
The motions for sections 44 and 41 of the Act are thus removed by the appellant's act and his evidence under oath.
He owes notice pay to the respondent upon his resignation.
However, the trial court found that the claims failed because the foundation for the claim was the resignation, which was in error. In employment claims, each claim by the employee at the end of employment, whether due to resignation or summary dismissal, should be analysed on the merits. See Felister Waithiegeni Mugweru v National Police Service Commission & 2 others [2018] eKLR.
The appellant confirmed that he was employed as a turn man and then promoted to a clerk. However, he had no written contract. His last wage was Ksh. 14,000 per month. This placed him as a general worker under the Wage Orders.
A general worker in Mombasa earned a basic wage of Ksh 10. 954.70 in 2016 and Ksh. 13,572.90 in 2020. As a general worker, the appellant was entitled to a 15 per cent house allowance each month.
However, wages and benefits that accrue monthly, weekly, or daily are considered continuing injuries as defined under section 90 of the Act. These claims should be lodged with the court within 12 months from the date of cessation, as held in Hakika Transport Services Ltd v Mwariwa & 3 others [2022] KECA 783 (KLR).
In this case, the appellant filed his claim on 4 May 2021 and claimed for terminal dues accruing from January 2016 to March 2020. Where employment was terminated on 20 June 2020 by resignation, the claimant had 12 months to make his claim, which was of a continuing injury nature, hence lapsing on 19 June 2021.
Under his claim, the appellant can only justify allegations dating back 12 months.
On the claim for unpaid wages for 15 days worked in June 2020, upon his resignation without notice, the appellant owes the respondent the relevant pay for 15 days in lieu thereof.
The justified claim for unpaid house allowance covers 12 months before the termination of employment. Based on a wage of Ksh 14. 000, with the due wage being Ksh 13. 572.90 plus 15 per cent of house allowance, the total amount owed is Ksh 2,035.90, resulting in a total of Ksh 15. 608.80. The underpayment amounts to Ksh 1 608.80 per month, and over 12 months, the total due is Ksh 19. 306.02.
Regarding the claim for annual leave from 2016 to 2020, under section 28 of the Act, leave can only accrue for 18 months unless there is evidence that the employer approved the accumulation of leave days. The appellant is entitled to 33 leave days based on a basic wage of Ksh 13. 572.90, all at Ksh. 14,929.20.
On the claim for working during public holidays, the appellant specified the days he worked without compensation. However, he combined the remaining days with public holidays in his tabulation, confusing the records. With the public holidays clearly identified, he is entitled to claim Ksh. 846.25 for one public holiday earned in 2020.
The claim for underpayments is addressed with the claim for due house allowances.
A certificate of service is due at the end of employment upon clearance under section 51 of the Act.
On costs, the appellant, having resigned without notice and having his terminal dues assessed as above, should bear his costs.
Accordingly, the appeal is with merit to the following extent;
- Public holidays worked Ksh 846.25,
- Leave days Ksh 14,929.20,
- Underpayments Ksh 19,306,
- Certificate of service,
- The dues (a), (b) and (c ) above to be paid less 15 days’ notice pay,
- Each party to bear its costs.
Delivered in open court at Mombasa this 1st day of July 2025
M. MBARŨ
JUDGE
In the presence of:
Court Assistant: Japhet
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