Background
1. Asserting that at all material times, he was an employee of the Respondent, and that his employment was unfairly terminated by the Respondent on 4th February 2023, the Appellant sued the Respondent in the above-mentioned suit, seeking declaratory and compensatory reliefs, thus;
I. Salary in lieu of notice, KShs - 34,000/=
II. Unpaid house allowance, KShs-255,000/=.
III. Compensation for overtime worked - KShs. 2,549,976/=
IV. Compensation for work done during Public holidays- Kshs. 104,615.20 /=
V. Service pay -KShs. 78,461.40/=
VI. Compensation for unfair termination - Kshs. 408,000/=
2. The Respondent challenged the Appellant’s claim in its Statement of Response dated 24th March, 2023. The Respondent admitted that the Appellant was employed as a driver from 4th December 2018 until 4th February 2023, but denied the Appellant’s claim that it had terminated his employment. The Respondent contended that the Appellant deserted his duties.
3. After hearing the parties on their respective cases, the learned trial Magistrate partially allowed the Appellant’s claim in the judgment above-mentioned. The Appellant impugns that judgment in the instant appeal.
Appellant’s case in the lower court
4. The Appellant’s assertion was that he was engaged by the Respondent in the capacity of a truck driver from 4th December 2018 until 4th February 2023.
5. He stated that on or about 31st January 2023, he was diagnosed with corneal ulcers and advised by his doctor to seek urgent medical attention and undergo surgery before returning to work.
6. According to the Appellant, the doctor further advised him that continuing to drive would endanger his life and those of other road users. He therefore considered himself unable to fulfil his duties as a driver.
7. The Appellant further stated that he conveyed this information to the Respondent’s Human Resource Officer, Mr George, and handed him the medical letter from Coast General Hospital. However, Mr George allegedly refused to listen to him and instead directed him to see a supervisor named Katana.
8. Upon encountering Katana, the Appellant asserts that he was directed to get a truck and to resume his duties forthwith; failure to do so would result in his permanent prohibition from reporting to work. He states that he departed and was never compensated for his dues.
9. The Appellant contended that the Respondent victimised him because of his poor health and terminated his employment unfairly.
Respondent’s case in the lower court
10. The Respondent’s witness, George Mwajosi, testified that he is the Respondent’s Human Resource Manager. He confirmed that the Appellant was employed as a driver from 4th December 2018 until 4th February 2023. He stated that the Appellant was not fired but voluntarily deserted employment.
11. He stated that before the alleged desertion, the Appellant had been involved in a disciplinary matter following the loss of a Transit Goods Licence and a failure to provide an explanation. As a result, the Appellant was placed on 14 days’ unpaid leave on 17th January 2023 and was expected to return to work on 1st February 2023.
12. George Mwajosi states that the Appellant resumed work as directed and remained at work until 4th February 2023, a Friday. He was expected to resume work on 5th February 2023 but failed to do so.
13. He stated that he and the Appellant’s supervisors tried calling the Appellant without success. The alleged desertion was then reported to the Labour Officer on 22nd February 2023, after several attempts to trace him failed.
14. He denied the Appellant’s allegation that he had informed the Respondent’s officials of his illness. He stated that although the Appellant went to the hospital in January 2023, he never presented a doctor’s note or medical report to the Respondent upon returning to work on 1st February 2023.
15. He further stated that he only saw the medical report when the Appellant filed the suit. He also denied that any supervisor told the Appellant to leave work and go home.
16. George Mwajosi also denied the claims for house allowance, public holidays, overtime and service pay. He stated that the Appellant was at all material times paid house allowance, did not work during public holidays or overtime as alleged, and is not entitled to service pay because his NSSF contributions were deducted and remitted.
17. In his witness statement, Balthazar Katana stated that he was at the material time, in charge of the muster roll at the Respondent’s business and that his duties involved recording employees’ attendance at work.
18. He confirms that according to the muster roll, the last day the Appellant reported to work was 4th February 2023. He states that the Appellant signed the muster roll and left the premises at around 5.00 p.m. on the same day.
19. Balthazar Katana denies telling the Appellant to leave the premises or never to return to work. He also stated that the Appellant was not at work on 31st January 2023.
20. The witness denied knowledge of the Appellant furnishing the Respondent with any medical notes from a doctor. According to him, he was the officer who would usually receive such documents when employees returned to work, place them in the employee’s file, and forward them to the Human Resource Manager.
21. The 3rd witness, Joseph Katana, stated that he was the Respondent’s workshop supervisor. The Appellant never presented him with any medical note from a doctor stating that he was unfit to work.
22. According to Joseph Katana, the last time he saw the Appellant at the Respondent’s premises was on 16th January 2023. He states that the Appellant was at the workshop where the Appellant’s assigned vehicle was located.
23. He denied telling the Appellant to go home at any point in January or February 2023 as alleged.
Judgment of the Lower Court.
24. In a judgment dated 25th April 2025, the learned trial Magistrate found that the Appellant deserted his duty and, as such, his employment was not unfairly terminated by the Respondent, as he had alleged.
25. Following the finding that the Appellant’s employment was not unfairly terminated as alleged by the Respondent, the learned Magistrate declined to award compensation for unfair termination and notice pay. The Court further found that the claims for overtime, public holidays, and service pay were undeserved as they had not been specifically proved, and that service pay was not payable because NSSF deductions had been made.
26. However, the court allowed the claim for the unpaid house allowance and awarded the Appellant KShs. 61,078.50. The rest of the claim was dismissed with no order as to costs.
Appeal
27. Being dissatisfied with the judgment, the Appellant filed this Appeal challenging it on the following grounds;
1. The learned Magistrate erred in law and fact in holding that the Appellant was not terminated from employment but rather he voluntarily absconded from duties, hence self-terminating himself from employment, which holding was totally against the weight of evidence placed on record by the parties and therefore erroneous.
2. That the learned Magistrate erred both in law and fact by finding that the Appellant was not terminated from employment, awarding him compensation for house allowance for the entire period of employment, but ironically declined to award costs of the suit.
3. The learned trial Magistrate erred in law and fact by failing to fully analyse, appreciate and evaluate the nature of the case and evidence before him and the issues for determination and consequently fell into error and arrived at a wrong determination of the Appellant's Claim against the Respondent before him.
4. The Learned Magistrate erred in law and fact in arriving at the conclusion that the Appellant was undeserving of his sought reliefs against the weight of the evidence adduced before her.
5. The Learned Magistrate erred in law and fact by shifting the burden of proving unfair termination from the Respondent to the Appellant in total contravention of the provisions of Section 74 of the Employment Act.
6. The Learned Magistrate erred in law and fact in failing to find that the termination of the Claimant's employment was unlawful for the reason that the Claimant was not granted a hearing as contemplated under the mandatory provisions of section 41 of the Employment Act.
7. The Learned Magistrate erred in law and fact in failing to find that the Appellant was entitled to compensation for unlawful termination of employment after the Respondent failed to prove the validity of the process leading to termination.
8. The Learned Magistrate erred in law and fact by failing to consider that both procedural fairness and substantive fairness are vital whilst determining the termination of an employee.
9. That the Learned Magistrate erred in law and in fact in his judgment, in failing to allow the whole claim as prayed, despite the overwhelming evidence.
10. That the Learned Magistrate erred in law and fact in failing to award the Claimant service pay for unremitted NSSF deductions from his salary despite the NSSF extract showing there were no remittances by the Respondent for months, but the same were being deducted.
11. That the Learned Magistrate erred in law and fact in failing to award overtime allowance, off days and holidays allowance despite there being overwhelming evidence in support of the same.
Cross appeal
28. The Respondent filed its cross-appeal on the following grounds;
1. That the Learned Magistrate made an error of law and fact in awarding the Appellant house allowance at KShs. 67,078.50, which calculation was based on a misapprehension of the law.
2. That the Learned Magistrate erred in law and in fact in disregarding the Respondent's documentary evidence, i.e., payrolls showing that the Appellant was paid a house allowance at KShs. 6,054 at the time of separation, which evidence was never controverted by the Appellant.
Appellant’s submissions
29. The Appellant submits that the trial court erred in finding that he was not terminated but had voluntarily absented himself from duty. He argues that this finding was against the weight of the evidence and that the court failed to properly analyse the material before it.
30. He further submits that the trial court erred by shifting the burden of proving unfair termination to him, contrary to the stipulations of the Employment Act. He argues that once he established a prima facie case of unfair termination, the burden shifted to the Respondent to justify the termination.
31. It is submitted that the Respondent did not prove that it adhered to procedural fairness prescripts when it dismissed the Appellant. They did not demonstrate that the Appellant was taken through a disciplinary process.
32. It is further submitted that where an employer alleges desertion, the employer must show that efforts were made to trace the employee. The Respondent’s witnesses merely asserted that they tried to reach the Appellant without success, without any cogent evidence. Reliance has been placed on Stanley Omwoyo Onchweri v Board of Management Nakuru YMCA Secondary School [2015] eKLR.
33. On remedies, the Appellant submits that the trial court ought to have allowed his pleaded claim. He contends that he proved entitlement to house allowance, overtime, public holidays, service pay, notice pay and compensation for unfair termination.
34. He argues that the Respondent failed to demonstrate, through payslips or other documents, that he was compensated for public holidays and overtime. He further submits that, as a long-distance truck driver, it was impractical to conclude that he worked only eight hours per day or that he did not work during public holidays while in transit.
35. On service pay, the Appellant submits that he was only a member of NSSF on paper and that the NSSF records showed gaps in remittances. He relies on Felistas Acheha Ikatwa v Charles Peter Otieno [2018] eKLR to support the point that, in a situation like his, an employee is entitled to service pay.
36. Finally, the Appellant submits that the trial court erred in failing to award him costs. He had succeeded in his suit. It would only be fair for him to be awarded the costs of the lower court and of this appeal.
Respondent’s submissions
37. The Respondent submits that there were material inconsistencies in the Appellant’s case. It argues that although the Appellant pleaded that he was terminated because of his eye condition, he later alleged that the termination was connected to the loss of the Transit Goods Licence. The Respondent further points out that the Appellant’s pleadings stated that he saw a doctor on 31st January 2023, yet the medical note relied on was dated 25th January 2023, when he was already on suspension.
38. The Respondent also submits that the Appellant gave inconsistent evidence about who allegedly chased him away. In his statement, he claimed that a supervisor named Katana told him not to return if he could not drive, whereas in oral testimony he stated that it was George, the Human Resource Manager, who chased him away. The Respondent further submits that both Katana Balthazar and Joseph Katana denied receiving any medical report from the Appellant or sending him away.
39. The Respondent further submits that, after receiving the Appellant’s demand letter, it responded, informing the Appellant’s advocates that he had not been terminated and remained its employee. Despite this, the Appellant never returned to work or sought clarification regarding the status of his employment. The Respondent further submits that it thereafter reported the Appellant’s desertion to the labour office.
40. The Respondent relies on Wilson Mudogo Mulima v AGS Worldwide Movers (K) Limited [2014] eKLR and submits that the trial court properly found that the Appellant failed to discharge the burden under section 47(5) of the Employment Act to prove that unfair termination had occurred. As such, the lower Court’s finding that he was not entitled to those reliefs that were dependent on the claim for unfair termination was on a sound basis.
41. Regarding service pay, the Respondent submits that the Appellant’s own NSSF statement shows remittances for the period of employment. It argues that the Appellant was therefore not entitled to service pay.
42. Regarding overtime and public holidays, the Respondent submits that the Appellant failed to provide evidence of the alleged overtime hours or to specify the public holidays worked without compensation. The learned trial judge did not err in declining the remedies. To support this submission, reliance is placed on Bakery Confectionery Food Manufacturing and Allied Workers Union (K) v Devkan Enterprises Limited [2025] KEELRC 2895 (KLR).
43. On the cross-appeal, the Respondent submits that the trial court erred in awarding the Appellant a house allowance. It argues that the payrolls and payslips showed that the Appellant’s salary comprised a basic salary and a separate house allowance of KShs. 6,054, bringing his gross pay to KShs. 40,365 before statutory and loan deductions.
44. The Respondent relies on section 31 of the Employment Act and submits that where an employee’s contract or salary structure includes a house allowance, the employee cannot claim house allowance again unless he proves that it was not paid.
45. In conclusion, the Respondent prays that the appeal be dismissed, and that the cross-appeal be allowed only to the extent of setting aside the award of house allowance. It further prays for the costs of the appeal.
Analysis and determination
46. As this is a first appeal, this Court is enjoined to reassess the evidence presented to the trial court and to reach an independent conclusion, while acknowledging that it did not observe or hear the witnesses testify.
47. I have carefully considered the grounds of appeal in the Appellant’s appeal, the grounds of the Respondent’s cross -appeal, the material that was placed before the trial Court, and hold that this appeal and cross-appeal revolve around the following principal issues: How did the Appellant’s separation from employment occur? Was the Appellant’s employment unfairly terminated? Did the learned trial Magistrate err in not awarding the reliefs sought by the Appellant, and did the learned trial Magistrate err in awarding the Appellant the relief of unpaid house allowance?
48. It is not disputed that the Appellant was employed by the Respondent as a truck driver at all material times. However, the parties took diametrically opposed positions on the manner of the separation. While the Appellant maintained that his employment was terminated at the Respondent's initiative and unfairly so, the Respondent, on the other hand, charged that the Appellant deserted duty and, as such, brought his employment to an end by his own action. It is important to settle this issue at the outset, as it will inform the determination of the other identified issues.
49. In my view, there was no dispute that on 17th January 2023, the Appellant was placed on a 14-day administrative suspension following the loss of his Transit Goods Licence. He was to resume duty on 1st February 2023. According to the Respondent, he did indeed resume work and worked until 4th February 2023, after which he deserted duty.
50. I have carefully considered the Appellant’s evidence on the alleged termination of his employment and indeed agree with the submissions by Counsel for the Respondent that it was riddled with material inconsistencies, rendering his version less persuasive than that of the Respondent. Thus, leaving this Court with no option but to justly hold that the Respondent’s explanation as to how the separation occurred is convincing.
51. In his witness statement, he stated that he informed the Human Resource Officer, George, of his medical condition, and that George referred him to a supervisor known as Katana, who allegedly told him to take a truck and resume duty, failing which he should never return to work.
52. However, in his oral testimony during cross-examination, he stated that it was George who chased him away from the company premises, warned him not to return, and instructed security not to allow him back.
53. In fact, when one looks at his witness statement, which was adopted as his evidence in chief before the trial Court, one cannot be said to be off the mark by concluding that it supports the Respondent’s position that he deserted duty. Critically, in the statement, he stated;
“Upon seeing Katana, he told me to get a truck and resume my duties, failure to which, I should never report to work ever again. I thus left, [emphasis mine] and I have never been compensated for my dues.”
54. In Wilson Mudogo Mulima v AGS Worldwide Movers (K) Limited [2014] eKLR, the Court held, and I agree;
“Whilst the Claimant claims he was verbally terminated, he did not raise this issue to rebut the accusation by the Respondent that he absconded duty beginning the date he alleges he was verbally terminated, to wit, 2nd April. Further, nothing in his pleadings or evidence at the trial was brought forth to show that he tried to report to work and was turned away by the Respondent. To this extent, the Court is not persuaded that the Claimant was verbally terminated on 2nd April, 2012. On the standard of proof in a civil case such as this, it is most probable that the Claimant was absent from duty without authority from 2nd April, 2012, as alleged by the Respondent, than not. His claim for verbal termination of employment therefore fails and is hereby dismissed.”
55. Desertion of duty constitutes a gross misconduct on the part of an employee, that can justifiably lead to a summary dismissal of the employee pursuant to the provisions of Section 44 of the Employment Act. However, it should be noted that where the employer asserts that an employee’s employment ended as a result of his duty, that employer is enjoined by the law to demonstrate that it made attempts to reach out to the employee to establish his whereabouts, issue him with a notice that his continued absence from work would attract disciplinary action against him, where appropriate, and even invite him to a disciplinary hearing.
56. In Stanley Omwoyo Onchweri v Board of Management Nakuru YMCA Secondary School [2015] eKLR, the Court held;
“The employer must also demonstrate that it made attempts to reach out to the employee to establish his whereabouts, making reasonable inquiries as to the absence (post, email, phone calls, colleagues, neighbours or family members), issuance of ultimatums to the employee to resume duty and the like. Each case will depend on its peculiar circumstances. And a hearing may be necessary.”
57. The same principle was restated in Ayub Kombe Ziro v Umoja Rubber Products Limited [2022] KEELRC 141 (KLR);
“The law regulating the processing of release from duty of an employee who has absconded duty is now fairly settled. It is not open to the employer to simply plead abandonment of duty by the employee as evidence of termination of the contract. The employer must demonstrate that he has taken reasonable steps to find out the whereabouts of the employee and required him to resume duty to no avail. The employer must, where possible, demonstrate that he has addressed the matter of the employee’s unexplained absenteeism through the available internal disciplinary channels.”
58. In essence, even where, in the employer’s view, an employee has deserted duty, the procedural fairness safeguards must be observed. In the instant matter, it is apparent that the Respondent did not at all proceed to engage the mandatory procedure provided for under Section 41 of the Employment Act, once it deemed the Appellant a deserter. It just told itself, “we have struck him off our roll”.
59. The Respondent cannot be heard to allege that it tried to reach the Appellant without success, thereby failing to engage the provisions. It was undisputed that immediately after the Appellant left the Respondent's employment, he approached an Advocate, who issued a demand letter to the Respondent. The Respondent responded to the demand through the Advocate, thereby opening a channel of communication. The Respondent ought to have leveraged it.
60. By reason of the foregoing premises, I do not hesitate to conclude that the termination was without adherence to the dictates of procedural fairness.
61. Having found that the Appellant did not prove his claim for unfair termination, I hold that the learned trial Magistrate rightly declined the remedy that was sought, dependent on the claim, notice pay.
62. The Appellant claimed compensation for overtime in the sum of KShs. 2,549,976, and for public holidays worked in the sum of KShs. 104,615.20. These claims were special damages and required particularity and proof. The Appellant conceded on cross-examination that he had no records to support the overtime claim. He also failed to specify the particular public holidays allegedly worked, the dates, the hours worked, or the applicable rates.
63. The mere fact that the Appellant was a long-distance truck driver did not, without more, prove that he worked overtime or on public holidays without compensation. The trial court was therefore correct in finding that the claims for overtime and public holidays were not proved.
64. Under the Employment Act, section 35(5) provides for service pay for each year worked, but section 35(6) excludes employees who are members of the National Social Security Fund or other specified pension, provident, gratuity or service pay schemes. The Appellant admitted that NSSF and NHIF were deducted from his salary. The Respondent also relied on NSSF records and payslips to demonstrate the deductions and remittances. Accordingly, the Appellant was not entitled to service pay.
65. The Appellant argued that he was only a member of NSSF on paper and that there were gaps in remittances. Even if there were gaps, that would not automatically entitle him to service pay, given that he was a member of NSSF. The appropriate recourse for non-remittance of statutory deductions lies with the statutory body empowered to recover them from a defaulting employer.
66. The remaining issue is the cross-appeal on house allowance. Section 31 of the Employment Act requires an employer to provide reasonable housing accommodation or pay a sufficient sum as rent in addition to wages or salary. However, section 31(2) provides that the section does not apply where the contract of service contains a provision consolidating, as part of the wage or salary, an element intended to enable the employee to provide himself with housing accommodation.
67. The Respondent’s case was that the Appellant received a house allowance and relied on payrolls and payslips, which showed a basic salary of KShs. 34,302 and a house allowance of KShs. 6,054, giving a gross pay of KShs. 40,365 before statutory and other deductions. The Appellant did not sufficiently controvert that documentary evidence. The learned trial Magistrate erred in law by failing to consider this relevant evidence and, consequently, erred in granting the Appellant compensation under that head.
68. In the upshot, this Court finds;
I. That the Appellant’s Appeal succeeds partially. The learned trial Magistrate’s finding that his employment was not fairly terminated is hereby set aside, and in place thereof, a declaration is made by this Court that the termination was procedurally unfair.
II. Considering the circumstances under which the separation occurred, the Appellant is hereby granted compensation under section 49[1][c] of the Employment Act, one month’s gross salary, KShs. 40, 365.
III. The Respondent’s Cross-appeal wholly succeeds. The award of house allowance that was made in favour of the Appellant is hereby set aside.
IV. Each party shall bear its own costs.
Read, Signed and Delivered this 11th Day of June 2026.