1. Through the Memorandum of Appeal dated 19th November, 2021 the Appellant appeals against whole of the Judgment of the Chief Magistrate Court at Nairobi (Honourable D.W Mburu (SPM), delivered on 9th October, 2021 MELRC E2349 of 2019 on grounds inter alia:
i. The learned Magistrate erred in law and in fact in finding that the Claimant was unfairly terminated while at the same time holding that there was no documentation to show the same.
ii. The learned Magistrate erred in law and in fact when he found that the Claimant is entitled to terminal dues amounting to Kshs. 414,819, interest and costs.
iii. The Learned Magistrate erred in law and in fact by failing to evaluate correctly the evidence adduced by the Appellant and consequently arriving at a conclusion that has no legal or factual basis.
2. The Appellant consequently prayed that the appeal be allowed with costs and the judgment of the lower Court be set aside entirely and the suit be dismissed with costs to the appellant.
3. The Appeal was disposed of by written submission
APPELLANT’S SUBMISSIONS
4. The Appellant’s Advocate, Mr. Sala submitted among others that the trial court erred in finding that the respondent had been unfairly terminated yet at the same time stating that there was no documentation to show the same hence the trial court failed to correctly evaluate the evidence before it. According to counsel, the trial court whilst noting that the filed a letter confirming resignation but due to the error on the date concluded that the respondent did not resign but was terminated by the appellant. Mr. Sala submitted that the respondent verbally resigned and was not terminated as claimed. Counsel in that regard submitted that the respondent never discharged the evidentiary burden placed on him by section 47(5) of the Employment Act.
5. Mr. Sala submitted that the respondent never produced any termination letter received from the appellant and that the respondent at the trial did not present any evidence to support the events narrated by him. On the other hand, the appellant through its witnesses were consistent in their account of what took place at the material time. According to counsel, the appellant’s 1st witness stated that the respondent reported to its premises on 4th November, 2019 and did not proceed to his workstation, he instead approached the director of the appellant and informed him that he (the respondent) was no longer interested in working for the appellant. The respondent then walked away and only returned in February, 2020. Further, the respondent claimed the appellant refused to sign the DOSH forms after he got injured at work yet the appellant produced at the trial, forms sent to the insurer about that accident involving the respondent.
6. Mr. Sala further submitted that the trial Magistrate erred in finding that the respondent had been unfairly terminated by relying heavily on the appellant’s letter confirming resignation erroneously dated 15th November, 2019 instead of 21st February, 2020 and that the trial magistrate simply concluded that it was difficult to see how the date was a typing error because there was a gap of two months and the letter was talking of events which occurred in February, 2020. Counsel urged that humans were prone to error and that the error was admitted by the appellant at the trial.
7. According to counsel, the disputed letter was written in order for the appellant to compute the respondent’s final dues. The letter talked of threats to members of the appellant company and a report to the police station by Mr. Sammy Mweke, a manager at the appellant’s company at the material time. This was not rebutted by the respondent and further that the respondent received Kshs. 255,286/- which was attached by his Sacco in recovery of his loan.
8. Concerning the award of Kshs. 414,819 as terminal dues, counsel submitted that this was erroneous. According to counsel, the respondent resigned and was not entitled to pay in lieu of notice and that the respondent did not discharge the burden of proving that unfair termination took place hence not entitled to compensation. In this regard, counsel relied on the case of Michael Aloo Achieng’ v. Anvi Emporium Ltd [2021] eKLR.
9. In conclusion counsel urged the court to allow the appeal.
RESPONDENT’S SUBMISSIONS
10. Counsel for the respondent Mr. Kamau submitted that the respondent was verbally dismissed following persistent following of compensation for the injuries he sustained in the course of his employment. According to counsel the respondent sustained injuries to his left index finger leading to the amputation of the same. According to counsel, it was the responsibility of the appellant to inform DOSH and its insurance of the injuries sustained by the respondent in the course of his employment to enable him be compensated but the appellant failed to do prompting the respondent to do so to the Labour Office himself where he was issued with a form to take to the appellant to fill and process the claim for compensation with the insurance.
11. According to Counsel, the allegation by the appellant that it reported the accident to the Labour Office was false since it was the Labour Office which issued the respondent with the form DOSH1 to be filled by the appellant and informed them through a letter dated 4th November, 2019 that the accident had not been reported to them. It was the respondent’s counsel’s submission that the appellant’s Director Mr. Mitesh Shah was not pleased by the action by the respondent of reporting the accident to the Labour Office and that he consequently verbally terminated the respondent. It was Mr. Kamau’s argument that the position in law was that the appellant should have first reported the injury to the Ministry of Labour, taken up and filled the DOSH forms for purposes of forwarding it to their insurers, the DOSH form would indicate the extent of injury and compensation payable. These documents according to counsel, were produced by the respondent at the trial through a supplementary list of documents on 15th January, 2021 and which the appellant did not have. Failure to report the accident to DOSH by the appellant was a clear indication that the appellant did want the accident reported and the respondent compensated for his injuries for two years had lapsed since the accident took place and upon realising that the respondent had reported the accident to the Labour Office, the respondent’s director became furious and verbally terminated his service.
12. On the issue of resignation, counsel submitted that the appellant did not produce any letter of resignation from the respondent. The original letter purporting to show the appellant had resigned presented before the trial court had not been altered yet the one in the record of appeal at page 28 had been altered and the date cancelled by pen to read 21st February, 2020 instead of 15th November, 2019 and that what was surprising was that although the letter was dated 15th November, 2019, it was talking about events of 21st February, 2020. Counsel submitted that one can make an error on date, month or year but not on all the three and that no proper explanation was given by the appellant for the alleged mistake. In conclusion, Counsel submitted that the termination of the appellant’s service was unfair within the meaning of section 45 of the Employment Act hence the trial court was right to so find. To support this conclusion, counsel relied on the case of Walter Anuro v. TSC [2013]eKLR and Rebecca Ann & 2 Others v. JKUAT [2014]eKLR.
DETERMINATION
13. The court has considered the grounds in the Memorandum of Appeal, the Record of Appeal and the submissions filed by the parties herein and authorities relied on and would as usual state that it is now settled law that the duty of the first appellate court is to re-evaluate the evidence in the subordinate court both on points of law and facts and come up with its own findings and conclusions as was held in Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, where it was stated that:-
“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”
14. The Judgment of the trial court was that the respondent’s claim was allowed and the trial court awarded him a consolidated sum of Kshs. 414, 819/- as compensation for unfair termination of his contract of service. The appellant feeling aggrieved by the finding of the trial court, brought the present appeal against the entire judgment of the trial court and urged that the same be set aside in its entirety and be replaced with a judgment allowing the appeal and dismissing the suit in the court aquo.
15. As observed above concerning the role of this court as a first appellate court, its primary role is to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial court are to stand or not and give reasons either way. The Court as an appellate court is further reminded not to replace its own opinion of what could have been a better interpretation and ultimate finding on the facts before the trial court if those facts and evidence, align with reasonable conclusions over the issues in dispute and are supported by law.
16. The appellant has urged this court to overturn the finding by the trial court that the termination of the respondent’s service was unfair and was driven by the fact that he aggressively pursued compensation for the injuries he sustained in the course of his employment and that the respondent never resigned as claimed by the appellant.
17. The main issue for determination is whether the respondent resigned from employment or he was terminated unfairly. To answer this question will consider the trial court’s finding on this issue and see if it is persuaded that the trial court was right in its analysis of the evidence and the conclusion reached. On this issue, the trial court in its judgment at page 60 of the record of appeal observes:-
“…The claimant herein claims to have been terminate unfairly by the respondent on 4th November, 2019 while the respondent claims that the claimant resigned on the said date. Both allegations are said to have occurred orally thus there was no documentation to show the same. That being said the respondent filed a letter that they claim was a confirmation of the claimant’s resignation. The said letter is date 15th November, 2019 yet it talks of events that occurred later on in 21st February, 2021. The respondent’s 1st witness said that the said date was a typing error. In my view given that there is nearly two month gap between the said two dates and there is no similarity between the two dates and in absence of any further explanation, it is difficult to see how the same was a typing error. Further, the respondent witness stated that he tried to reach the claimant to confirm the seriousness of his termination but he was not available. No evidence has been tendered to show the said attempts. In the light of the above it is my finding that on a balance of probabilities the claimant did not resign but he was terminated…”
18. As has been stated earlier and in other cases entertained by this court in its appellant jurisdiction, it is not its responsibility to overanalyse the decisions of the trial court and replace the same with what it could have decided if seized of the matter in the first instance. As a first appellate court, its primary role is to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial court are to stand or not and give reasons either way. The Court as an appellate court is further reminded not to replace its own opinion of what could have been a better interpretation and ultimate finding on the facts before the trial court if those facts and evidence, align with reasonable conclusions over the issues in dispute and are supported by law.
19. From the above and considering the analysis of the evidence by the trial court, this court is persuaded that it was reasonable conclusion from the facts and evidence presented before the court. The inevitable conclusion that therefore presents itself to this court is that the trial court did not err in finding that the respondent did not resign and that the termination was unfair. This ground of appeal therefore fails.
20. On the issue of the reliefs sought by the respondent, the court has carefully considered the manner in which the trial court approached the same and the conclusions reached thereon and finds the same sound both in facts and law and finds no reason to interfere with the same.
21. The foregoing having been said and considering caselaw relied on by both counsel and further placing the same in the context of the findings by the trial court, this court is persuaded the findings by the court aquo reiterating that they were sound both in fact and law and I find no reason to interfere with the same. The appeal is therefore found without merit and is hereby dismissed with costs.
22. It is so ordered.
Dated at Nairobi this ……… day of…………. 2026
Delivered virtually this……… day of ………….2026
Abuodha Nelson Jorum
Presiding Judge-Appeals Division