1. The appellant herein faulted the judgment of the trial court (Hon. D. M. Kivuti PM) in Milimani Commercial Court No. E842 of 2020 on grounds inter alia;
a) THAT the leaned trial magistrate erred in law by making an improper analysis of the issues raised by parties in the pleadings and the evidence adduced in support of the appellant’s and the respondent’s averments therein leading to an erroneous decision in the matter.
b) THAT the learned trial magistrate erred in law and in fact in failing to take into account material aspects of the evidence adduced in proof of the Appellant’s claim and eventually arriving at the erroneous finding that there was overwhelming evidence in proof of the respondent’s defence that the Appellant absconded from work.
c) THAT the learned trial magistrate’s finding that the termination of the Appellant’s employment contract was fair and procedural is based on wrong principles of law and contradicts the evidence adduced during trial.
d) THAT the learned trial magistrate misdirected himself, misapprehended and misconstrued the legal principles in the case before him and therefore failed to make any determination on the appellants claim regarding service pay, unutilized leave days and unpaid salary leading to an erroneous judgment in the matter.
2. In support of the appeal, Counsel for the appellant, Mr. Kimathi submitted among other that the trial court did not properly construe the evidence adduced during the trial in arriving at the finding that there was overwhelming evidence that the appellant absconded duty.
3. According to Counsel, the appellant’s contract of employment stood terminated as at 5th August, 2020 when he received the recommendation letter from the respondent when the respondent stated that the employment contract with the appellant ended in March, 2020.
4. Counsel further submitted that the respondent produced a letter dated 13th April, 2020 addressed to the sub-county Labour Officer in which the respondent stated the appellant had absconded duty since 29th March, 2020 and sought advise on the same. During the trial it was the respondent’s evidence by its Human Resource Manager that he was advised by the Labour Officer to dismiss the appellant. However, this oral evidence was not captured by the court.
5. Counsel further submitted that the appellant in his witness statement stated that he was confronted with allegations of theft by servant and was instructed to report on 30th March, 2020 to answer to the allegations against him. The appellant however did not report to work on 29th March, 2020 being a Sunday as that was his rest day. The appellant however reported to work on 20th and 31st March, 2020 but was not allowed to see his supervisor but was informed by the Human Resource Manager that he had been suspended indefinitely. The appellant thereafter persistently sought to know the status of his employment from his supervisor and Human Resource Manager by visiting the premises, making phone calls and text messages and was only informed orally in May, 2020 over the phone by the respondent’s Human Resource Manager that he had been summarily dismissed. According to Counsel when the appellant asked for written communication of the decision, the respondent issued the appellant with a recommendation letter stating the appellant performed his duties with diligence and minimum supervision in contradiction to the respondent’s allegation that the absconded duty. Counsel therefore wondered why the respondent gave a glowing recommendation letter to the appellant when he absconded duty.
6. Mr. Kimathi submitted that the foregoing factual situation as summarized by him was not captured by the trial court. Further the trial court did not make an analysis of the foregoing contractionary evidence. Failure by the trial court to properly record and consider and analyse the evidence of both parties led the court to arrive at erroneous conclusion that there was overwhelming and uncontroverted evidence that the appellant absconded duty.
7. Counsel lamented the scanty nature of the proceedings and noted that despite the trial having been conducted over two sessions of averagely an hour each, the testimony recorded by the court is a mere 17 sentences of averagely five words each.
8. On the issue of absconding duty Counsel submitted that the provisions of Section 45(2) of the Employment Act were applicable to even the absconding employee and therefore even if the appellant had in fact absconded duty the respondent would still be obligated to demonstrate compliance with the provisions of Section 45(2).
9. According to Counsel the respondents witness when questioned on whether he issued the appellant with a show cause letter or subjected him to a disciplinary hearing he stated that the appellant had absconded duty and therefore no show cause letter was issued nor a disciplinary hearing held. The respondent’s witness solely relied on the letter to the labour officer to support the validity and fairness of the allegations against the appellant.
10. The respondent on the other hand submitted that the respondent made considerable and vehement efforts to locate the appellant either personally or by phone call in order to give him written notice of planned disciplinary hearing. The respondent wrote to the Labour Office notifying them of the respondent’s desertion. According to counsel the claimant admitted that he never reported to work on 28th March, 2020. According to Counsel, the appellant knew the reason for absconding duty. That is to say on 28th March, 2020 he received a complaint about his alleged theft of work materials. Following this the appellant failed and or ignored to report to work.
11. The Respondent was unable to serve the show cause letter upon the appellant owing to the appellant’s refusal to answer the respondent’s phone calls in order for him to be formally served with the same.
12. This being a first appeal the role of the court as frequently stated is by way of a retrial. The court therefore takes the responsibility to analyse and evaluate the evidence and make conclusions about it bearing in mind that it did not have the opportunity of seeing or hearing the witnesses.
13. The appellant herein alleges that the trial court erred in holding that the respondent was justified in terminating his service on the grounds of absconding duty. On this issue the trial court rendered itself as follows;
“The claimant herein contends that allegations of theft of materials were levelled against him on 29th March, 2020 and thereafter he was suspended and finally summarily dismissed from work. He has however, tendered no evidence in support of his allegation that he was suspended and summarily dismissed. He however admits that as from 29th March, 2020 he did not go back to work”.
14. The allegations are captured in paragraph 6, 7, 8, 9, 10, 11 and 12 of the appellants witness statement. In the foregoing paragraphs, particularly paragraph 10 and 11, the appellant alleges that he begun to aggressively demand that the respondent notifies him of the status of his employment and was later informed the management had arrived at the decision to summarily dismiss him for material theft amounting to gross misconduct.
15. The allegation of theft of material was denied by the respondent’s witness Mr. Stephen Kamau in his witness statement found at page 30 of the record of appeal. The witness further denied allegations of suspension during the period of 31st March, 2020 and July, 2020.
16. Under Section 47(5) of the Employment Act, in a claim for unfair termination, the burden of proving that an unfair termination has taken place is on the employee while the burden of justifying the reason for termination is on the employer. The claimants alleged that he was accused of theft and confronted by the respondent’s security personnel and shown some CCTV footage implicating him. He however, did not disclose who the particular security personnel was. The fact that the respondents denied such misconduct placed more burden on the appellant to be more specific on who accused him of theft and showed him the CCTV footage. The claimant further did not specify what items he was alleged to have stolen. It is therefore the court’s view that the appellant did not discharge adequately the burden cast upon him by law at the trial of this claim.
17. The Respondent on the other hand denied that there was any theft in it’s premises and that the appellant was accused of any such theft. According to the respondent, the appellant absconded duty and efforts to contact him were futile. This court has stated in it’s previous decisions that on an allegation of termination of employment on account of absconding duty, the employer must show that reasonable efforts were made to contact the employee concerned without success. The respondent alleged that it attempted to contact the appellant through his telephone and through colleagues without success. According to the respondent, the appellant’s colleagues were unwilling to disclose his whereabouts forcing them to report his absence from work to the Labour Office.
18. The court does not find the attempts by the respondent satisfactory enough. It is the duty of an employee to keep employee records hence it would naturally be expected that the respondent would have the appellants home postal address or next of kin who could be contacted to trace his whereabouts. The respondent never presented any evidence of such attempt.
19. From the foregoing the court is not satisfied by both the appellants and the respondent that they fully discharged the burden cast upon them by law.
20. A plain reading of section 47(5) of the Employment Act shows that it apportions the burden of proof between the protagonists in an employment claim. That is to say, the employee has the responsibility to prove on a balance of probability that an unfair termination has taken place. The employer on the other hand must justify the grounds for the termination or dismissal. The wording of the section, by using the mandatory “shall” makes the apportionment of the burden of proof mandatory and mutually exclusive and a failure by one party to discharge their legal burden does not automatically discharge the burden cast by law on the other party. It may in certain situations lessen the other party’s burden but cannot completely discharge it.
21. The trial court herein considered the facts before it and reached the decision it did in spite of the loopholes pointed out in this judgment. The court in the circumstances and from the foregoing observations does not find any reasonable justification to interfere with the conclusions reached by the trial court based on the facts presented before it by the parties in the discharge of the burden of proof cast upon them by law. The decision might have gone either way and either way would be plausible. In that regard, for this court to overturn the decision of trial court and replace it with a different one without reasonable cause would be tantamount to whimsical exercise of judicial authority.
22. The appellant faulted the trial court for not adequately recording the proceedings before it. Counsel for the appellant lamented over the scanty nature of the proceedings noting that despite the fact that the trial was conducted for an average session of two hours, the testimony recorded was a mere seventeen sentences.
23. The court has considered this ground of appeal and has noted that the proceedings as recorded by the trial court noted that the witness adopted their witness statement and documents. The court has further perused the witness statements vis-à-vis the judgment of the trial court and noted that the learned trial magistrate took them into account in the judgment. It is therefore not correct that the learned magistrate did not properly capture the proceedings before him and led to misapprehension of the facts in dispute.
24. In conclusion and from the observations above, this court will find for and uphold the judgment of the trial court dismissing the appellant’s claim. Further from the observations above, each party shall bear their costs of the appeal.
25. It is so ordered
Dated, Signed and Delivered virtually at Nairobi on this ……………………….day of ……………………… 2023
Abuodha J. N.
Judge
In the presence of:-
………………………………………………..for the Appellant
………………………………………………for the Respondent