1. The Appellant herein dissatisfied with the Judgement and Decree of the Hon. Catherine Mburu Principal Magistrate made on 27th March, 2024 in Kikuyu ELRC. Cause No. E024 of 2021 filed a memorandum of appeal dated 15th April 2024 against the whole of the said Judgement and Decree and sought the following Orders:-
(a) This Appeal be allowed and the Judgement of the lower Court be set aside.
(b) The Respondent do pay the costs of this appeal and of the Court below.
2. Grounds of the appeal
1) The Learned Trial Magistrate erred in law and in fact in making a finding that the Respondent's employment had been unlawfully and unfairly terminated.
2) The Learned Trial Magistrate having correctly found as a fact that the Respondent had deserted work erred in law and in fact in proceeding to award him compensation for unlawful dismissal thereby disregarding the fact that the Respondent was the author of his own situation.
3) The Learned Trial Magistrate erred in law and in fact in failing to consider and/or follow binding legal precedent placed before her to the effect that the Respondent was not entitled to any compensation for unlawful dismissal having himself deserted his duties.
4) The Learned Trial Magistrate erred in law and in fact in failing to find in accordance with binding legal precedent that the Respondent was never dismissed at all and accordingly the question of compensation did not arise.
5) The Learned Trial Magistrate erred in law and in fact when she awarded the Respondent unpaid leave despite evidence that he had taken his leave at all times when it fell due.
6) The Learned trial Magistrate erred in law and in fact when she awarded the Respondent house allowance pay despite the evidence that his pay was consolidated with house allowance.
7) The Learned Trial Magistrate misdirected herself in point of law when she shifted the burden of proof to the Appellant thereby making the erroneous finding that the Appellant had not proved that the Respondent had taken his leave.
8) The Learned Trial Magistrate having found that the Respondent had been guilty of deserting work thereafter proceeded on the wrong principles and accordingly arrived at an erroneous decision.
9) The Learned Trial Magistrate erred in law and in fact in awarding costs of the claim to the Respondent.
BACKGROUND TO THE APPEAL
3. The respondent filed statement of claim 9th July 2021 alleging unfair termination of employment and sought for a declaration that he suffered unfair, wrongful and unlawful dismissal from employment. The respondent sought reliefs of one month notice pay in liue, underpayment since employment, housing allowance, overtime, leave salary in lieu, damages for wrongful dismissal and service pay. He also prayed for interest from date of filing suit and costs. (page 208-203 of ROA was the claim)
4. Together with the claim the respondent filed a verifying affidavit, his witness statement and list of documents all of even date of claim. (pages 214-228 of ROA)
5. The suit was opposed by the appellant who entered an appearance and filed a response to statement of claim dated 2nd December 2012 together with list of witnesses and list of documents all of even date(pages 201-206 of ROA). The appellant further filed witness statements of Geofrey Ongera dated 8th august 2023 and Rebeccah Njambi of even date and list and bundle of documents (pages 60-73 of ROA)
6. The Respondent’s case was heard on the 18th October 2023 where he adopted his witness statement as his evidence in chief and produced his documents under list of documents dated employment card be produced by the Counsel (page 5 of ROA). The respond 9th july 2021 as C-Exh 1-6. He was cross-examined by counsel for the appellant, Njuguna. The appellant’s case was heard on even date with DW1 as Geofrey Ongera who testified on oath, adopted his witness statement dated 8th august 2023 as his evidence in chief, and was cross-examined by counsel of the respondent, Ms. Kigera. The parties took directions for filing of submissions (Trial proceedings at pages 8-26 of ROA).
7. The Trial court delivered its judgment on the 27th March 2024 in favour of the claimant as follows:-
a. A declaration be and is hereby issued that the claimant suffered unfair, wrongful, and unlawful dismissal from employment.
b. One month pay in lieu of notice Kshs. 12,000
c. Accrued leave days Kshs. 151,200
d. House allowance Kshs. 306,217 .34
e. Damages for wrongful dismissal Kshs. 144,000
(all sums payable subject to statutory deductions)
f. Costs and interest
DETERMINATION
8. The appeal was canvassed by way of written submissions. Both parties complied.
9. This being a first appellate court, it was held in Selle v Associated Motor Boat Co. [1968] EA 123 that:- “The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”
10. The court is further guided by the principles on appeal decisions in Mbogo v Shah [1968] EA De Lestang V.P (as he then was) observation at page 94: “I think it is well settled that this Court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.’’
Issues for determination
11. The appellant addressed the following issue in written submissions:-Having found that the respondent deserted work the Learned Trial Magistrate erred in proceeding to declare that he had been unlawfully /unfairly dismissed and to award him for the same.
12. The respondent addressed the issue of whether the trial court erred in finding the termination was unfair and unlawful and in the reliefs granted.
13. The court having perused the grounds of appeal and the written submissions of the parties found the issues placed before the court on appeal for determination to be:-
a) Whether the trial court erred in fact and law in finding the termination on ground of desertion was unlawful and unfair.
b) Whether the trial court erred in reliefs granted.
Whether the trial court erred in fact and law in finding the termination on ground of desertion was unlawful and unfair
14. The appellant submitted that their unchallenged evidence was that the claimant deserted work , that if he deserted work the employer was supposed to contact him but their evidence was they tried to contact him without success. That DW1 told the court he met the claimant at the labour office and it was agreed he returns to office but did not. The appellant contended that the case was similar to case in Titus Malweo Wangereka v Gurdip Singh Rupra (2023)e KLR where the court in assessing compensation took into account that the claimant was to blame for the situation.
15. The appellant further relied on the decision in Ayub Komber Ciro v Umoja Rubber Prodcuts Ltd (2022)e KLR to submit that in the said case the court directed that the employee returns to work without prejudice to the employer’s right of disciplinary action. That the last position at labour office was for the employee to go back. That they have no problem with that position. That the foregoing decisions were binding on the trial court.
Respondent’s submissions
16. The Respondent submitted that the trial court took note that the Respondent did not report to work after the expiry of the off days as evidenced by the Muster roll. However, it held that the Appellant did not qualify to rely on desertion as they were expected to issue a notice to the Respondent informing him, they were considering the termination of his employment on grounds of desertion. They were also required by the law under Section 44(4) of the Employment Act to institute an internal disciplinary hearing. (Page 5 of the Record of Appeal) 43. The trial court relied on the findings in the case of Nyabiba v Apack Company Limited (Cause 2005 of 2017) [2023] KEELRC 672(KLR) (21s March 2023) (judgement) where the Court held: ‘’Evidently, desertion or absconding of duty is a deliberate act of the employee and typically catches the employer unprepared and could lead to disruption. It thus behoves the employer to take reasonable steps to contact the employee to ascertain his/her whereabouts so as to resume duty.‘’ That it was the duty of the employer to demonstrate that it took steps to ensure that the employee resumed duty but failed. The respondent further relied on the case on Muthai Muli v Trialink Fabricators [2018] e KLR where the court held “[21] Desertion of duty in itself is a serious offence which renders an employee liable to dismissal. It must however be proved, by demonstrating that the employer has made efforts to reach out to the deserting employee and put them on notice that termination of their employment on account of desertion is being considered.’’
17. The Respondent contended that he proceeded to the Labour Offices a week after he had been terminated and agreed to meet, twice, with a representative from the Appellant’s company to reach an amicable conclusion but the Appellant sent representatives that were not familiar with the case leading to no settlement or agreement being reached. That it beats logic that the Respondent took all these measures if he had indeed allegedly deserted work and was not fired.
18. The Respondent further relied on the decision in Mary Chemweno Kiptui v Kenya Pipeline Company Limited [2014] eKLR where the Court found that the Respondent had failed to demonstrate that there was a valid ground to justify the termination of the claimant. To that end, the court found that the termination of the claimant was unfair under subsection 43(1) of the Employment Act.
Decision
19. The trial court held the claimant was absent from work from the 14th May 2021 till end month having been off duty 10th to 13th May 2021. The trial court held that whereas the desertion of duty qualifies as gross misconduct, the Respondent should have accorded the claimant the opportunity to explain himself. The respondent did not issue notice to the claimant informing him it was considering termination of employment on the basis of his desertion hence the termination was unprocedural and unfair.
20. The court on evaluation of evidence before the trial court found that even though the appellant submitted that it tried to get to the Claimant to no avail, there was no cogent evidence of the efforts made in this respect. No evidence of phone call data was availed. No evidence of written communication to the Claimant in the form of a notice to show cause or otherwise was presented to court in effort to end the employee employer relationship under section 41 of Employment Act. The court upheld the decision applied by the trial court in Nyabiba v Apak Company Limited (2023)e KLR that notice on desertion ought to issue to the employee as a step under section 41 of the Employment Act.
21. I find no reason to disturb the decision of the trial court that the respondent did not comply with section 41 of the Employment Act towards ending the employee-employer relationship after the said desertion. The court upheld the decision that the termination was wrongful and unfair.
Whether the trial court erred in reliefs granted.
22. The Appellant submitted that the court ought to have applied the decision in Ayub Komber Ciro v Umoja Rubber Products Ltd (2022)e KLR and ordered the Respondent to go back to work without prejudice of disciplinary proceedings by the employer as the last position at labour office was for the claimant to resume duty. It is trite written submissions are not pleadings. I perused the response to the claim filed before the trial court and dated 2nd December 2021. The appellant did not make that offer for the trial court to consider. The Appellant simply called for dismissal of the suit (pages 129-132).
23. The trial court awarded the Respondent remedies as follows:-
A declaration be and is hereby issued that the claimant suffered unfair, wrongful, and unlawful dismissal from employment.
One month pay in lieu of notice Kshs. 12,000
Accrued leave days Kshs. 151,200
House allowance Kshs. 306,217 .34
Damages for wrongful dismissal Kshs. 144,000
(all sums payable subject to statutory deductions)
Costs and interest
24. Having found the termination was unprocedural and unfair, the claim for Kshs.12,000 for one month pay in lieu of notice was upheld.
25. The Court found that there was no evidence produced by the Respondent to show the Claimant took leave days during the period he worked granted Kshs. 151, 200 for the accrued leave days the Claimant was under their employment. The Respondent did not controvert the claim and the award is upheld.
26. The Trial Court further held that there being no evidence produced to prove that the Claimant’s salary was inclusive of the housing allowance awarded the Claimant Housing allowance of Kshs. 306,217.34 (page 6 of the Record). The Claimant was employed on minimum wage (page 223 of ROA) and RW1 admitted he was not provided with housing. The Respondent did not avail the payslip to prove that wages paid included the housing allowance. The award is upheld.
27. The trial Court found stated the Claimant did not produce proof of his underpayment whereas the Respondent had produced a salary payment schedule showing the Claimant’s pay leading to rejection of this prayer. The finding is upheld.
28. The trial Court found that with regards to service pay, because the Claimant produced NSSF payment data showing monthly contributions made by Brink Security Services who was not the Respondent failed to prove that he was entitled to payment of service pay. The finding is upheld.
29. On compensation awarded, the trial Court further awarded the Claimant Kshs. 144,000 as prayed for damages for wrongful termination as provided for under Section 49(1) (c) of the Employment Act. The appellant submitted that the trial court having established from the muster roll the claimant absconded duty from 14th May 2021 to end month that should have been factored in the awards as held in Titus Malweo Wangereka v Gurdip Singh Rupra (2023)e KLR where Justice B.O Manani observed:-
‘’ I take cognizance of the fact that it is this conduct that directly resulted into the separation of the claimant . The Respondent’s only fault was that he failed to invite the Claimant to a disciplinary session before closing the employment relation between the parties.
38.Taking all these factors into consideration, I am of the view that the Claimant is morally undeserving of any compensation whatsoever. However, the law recognizes that the Claimant’s right to due process was infringed by the Respondent’s failure to invite him for a disciplinary hearing. And for this, the law requires that the Claimant be compensated in some way. It is for this reason alone that I will order that the Respondent pays the Claimant compensation for wrongful termination limited to the Claimant’s gross salary for three (3) months only, that is to say Ksh. 29,649/=’’ The court at appeal was persuaded by the decision. An employee who contributed to the separation can not be justified to award for maximum compensation. The court agreed with the submission by the appellant. The claimant’s conduct, of being absent from duty after expiry of off days, led to the separation. Consequently, the award of the compensation for 12 months’ salary was set aside and substituted with award the equivalent of 2 months' salary compensation thus Kshs. 24,000.
The court found no basis to interfere with the other awards.
Conclusion
30. The appeal is allowed on the award of compensation for the unlawful termination only which was reduced from maximum compensation of 12 months(Kshs. 144000) salary to 2 months salary (Kshs. 24,000). The Judgement and Decree of the Hon. Catherine Mburu. Principal Magistrate. delivered on 27th March 2024 in Kikuyu ELRC Cause No. E024 of 2021 is set aside and substituted as follows:-
Judgment is entered for the claimant against the respondent as follows:-
i. A declaration is issued that the termination was unprocedural and unfair,
ii. Notice pay in lieu awarded for sum of Kshs.12,000 being one month salary.
iii. Accrued leave days Kshs. 151,200
iv. House allowance Kshs. 306,217 .34
v. Damages for wrongful dismissal Kshs. 24,000
(all sums above payable subject to statutory deductions)
vi. Costs and interest from date of judgment until payment in full.
31. Each party to bear own costs in the appeal.
32. It is so Ordered.
DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 21ST DAY OF FEBRUARY, 2025.
(a) This Appeal be allowed and the Judgement of the lower Court be set aside.
(b) The Respondent do pay the costs of this appeal and of the Court below.
2. Grounds of the appeal
1) The Learned Trial Magistrate erred in law and in fact in making a finding that the Respondent's employment had been unlawfully and unfairly terminated.
2) The Learned Trial Magistrate having correctly found as a fact that the Respondent had deserted work erred in law and in fact in proceeding to award him compensation for unlawful dismissal thereby disregarding the fact that the Respondent was the author of his own situation.
3) The Learned Trial Magistrate erred in law and in fact in failing to consider and/or follow binding legal precedent placed before her to the effect that the Respondent was not entitled to any compensation for unlawful dismissal having himself deserted his duties.
4) The Learned Trial Magistrate erred in law and in fact in failing to find in accordance with binding legal precedent that the Respondent was never dismissed at all and accordingly the question of compensation did not arise.
5) The Learned Trial Magistrate erred in law and in fact when she awarded the Respondent unpaid leave despite evidence that he had taken his leave at all times when it fell due.
6) The Learned trial Magistrate erred in law and in fact when she awarded the Respondent house allowance pay despite the evidence that his pay was consolidated with house allowance.
7) The Learned Trial Magistrate misdirected herself in point of law when she shifted the burden of proof to the Appellant thereby making the erroneous finding that the Appellant had not proved that the Respondent had taken his leave.
8) The Learned Trial Magistrate having found that the Respondent had been guilty of deserting work thereafter proceeded on the wrong principles and accordingly arrived at an erroneous decision.
9) The Learned Trial Magistrate erred in law and in fact in awarding costs of the claim to the Respondent.
BACKGROUND TO THE APPEAL
3. The respondent filed statement of claim 9th July 2021 alleging unfair termination of employment and sought for a declaration that he suffered unfair, wrongful and unlawful dismissal from employment. The respondent sought reliefs of one month notice pay in liue, underpayment since employment, housing allowance, overtime, leave salary in lieu, damages for wrongful dismissal and service pay. He also prayed for interest from date of filing suit and costs. (page 208-203 of ROA was the claim)
4. Together with the claim the respondent filed a verifying affidavit, his witness statement and list of documents all of even date of claim. (pages 214-228 of ROA)
5. The suit was opposed by the appellant who entered an appearance and filed a response to statement of claim dated 2nd December 2012 together with list of witnesses and list of documents all of even date(pages 201-206 of ROA). The appellant further filed witness statements of Geofrey Ongera dated 8th august 2023 and Rebeccah Njambi of even date and list and bundle of documents (pages 60-73 of ROA)
6. The Respondent’s case was heard on the 18th October 2023 where he adopted his witness statement as his evidence in chief and produced his documents under list of documents dated employment card be produced by the Counsel (page 5 of ROA). The respond 9th july 2021 as C-Exh 1-6. He was cross-examined by counsel for the appellant, Njuguna. The appellant’s case was heard on even date with DW1 as Geofrey Ongera who testified on oath, adopted his witness statement dated 8th august 2023 as his evidence in chief, and was cross-examined by counsel of the respondent, Ms. Kigera. The parties took directions for filing of submissions (Trial proceedings at pages 8-26 of ROA).
7. The Trial court delivered its judgment on the 27th March 2024 in favour of the claimant as follows:-
a. A declaration be and is hereby issued that the claimant suffered unfair, wrongful, and unlawful dismissal from employment.
b. One month pay in lieu of notice Kshs. 12,000
c. Accrued leave days Kshs. 151,200
d. House allowance Kshs. 306,217 .34
e. Damages for wrongful dismissal Kshs. 144,000
(all sums payable subject to statutory deductions)
f. Costs and interest
DETERMINATION
8. The appeal was canvassed by way of written submissions. Both parties complied.
9. This being a first appellate court, it was held in Selle v Associated Motor Boat Co. [1968] EA 123 that:- “The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”
10. The court is further guided by the principles on appeal decisions in Mbogo v Shah [1968] EA De Lestang V.P (as he then was) observation at page 94: “I think it is well settled that this Court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.’’
Issues for determination
11. The appellant addressed the following issue in written submissions:-Having found that the respondent deserted work the Learned Trial Magistrate erred in proceeding to declare that he had been unlawfully /unfairly dismissed and to award him for the same.
12. The respondent addressed the issue of whether the trial court erred in finding the termination was unfair and unlawful and in the reliefs granted.
13. The court having perused the grounds of appeal and the written submissions of the parties found the issues placed before the court on appeal for determination to be:-
a) Whether the trial court erred in fact and law in finding the termination on ground of desertion was unlawful and unfair.
b) Whether the trial court erred in reliefs granted.
Whether the trial court erred in fact and law in finding the termination on ground of desertion was unlawful and unfair
14. The appellant submitted that their unchallenged evidence was that the claimant deserted work , that if he deserted work the employer was supposed to contact him but their evidence was they tried to contact him without success. That DW1 told the court he met the claimant at the labour office and it was agreed he returns to office but did not. The appellant contended that the case was similar to case in Titus Malweo Wangereka v Gurdip Singh Rupra (2023)e KLR where the court in assessing compensation took into account that the claimant was to blame for the situation.
15. The appellant further relied on the decision in Ayub Komber Ciro v Umoja Rubber Prodcuts Ltd (2022)e KLR to submit that in the said case the court directed that the employee returns to work without prejudice to the employer’s right of disciplinary action. That the last position at labour office was for the employee to go back. That they have no problem with that position. That the foregoing decisions were binding on the trial court.
Respondent’s submissions
16. The Respondent submitted that the trial court took note that the Respondent did not report to work after the expiry of the off days as evidenced by the Muster roll. However, it held that the Appellant did not qualify to rely on desertion as they were expected to issue a notice to the Respondent informing him, they were considering the termination of his employment on grounds of desertion. They were also required by the law under Section 44(4) of the Employment Act to institute an internal disciplinary hearing. (Page 5 of the Record of Appeal) 43. The trial court relied on the findings in the case of Nyabiba v Apack Company Limited (Cause 2005 of 2017) [2023] KEELRC 672(KLR) (21s March 2023) (judgement) where the Court held: ‘’Evidently, desertion or absconding of duty is a deliberate act of the employee and typically catches the employer unprepared and could lead to disruption. It thus behoves the employer to take reasonable steps to contact the employee to ascertain his/her whereabouts so as to resume duty.‘’ That it was the duty of the employer to demonstrate that it took steps to ensure that the employee resumed duty but failed. The respondent further relied on the case on Muthai Muli v Trialink Fabricators [2018] e KLR where the court held “[21] Desertion of duty in itself is a serious offence which renders an employee liable to dismissal. It must however be proved, by demonstrating that the employer has made efforts to reach out to the deserting employee and put them on notice that termination of their employment on account of desertion is being considered.’’
17. The Respondent contended that he proceeded to the Labour Offices a week after he had been terminated and agreed to meet, twice, with a representative from the Appellant’s company to reach an amicable conclusion but the Appellant sent representatives that were not familiar with the case leading to no settlement or agreement being reached. That it beats logic that the Respondent took all these measures if he had indeed allegedly deserted work and was not fired.
18. The Respondent further relied on the decision in Mary Chemweno Kiptui v Kenya Pipeline Company Limited [2014] eKLR where the Court found that the Respondent had failed to demonstrate that there was a valid ground to justify the termination of the claimant. To that end, the court found that the termination of the claimant was unfair under subsection 43(1) of the Employment Act.
Decision
19. The trial court held the claimant was absent from work from the 14th May 2021 till end month having been off duty 10th to 13th May 2021. The trial court held that whereas the desertion of duty qualifies as gross misconduct, the Respondent should have accorded the claimant the opportunity to explain himself. The respondent did not issue notice to the claimant informing him it was considering termination of employment on the basis of his desertion hence the termination was unprocedural and unfair.
20. The court on evaluation of evidence before the trial court found that even though the appellant submitted that it tried to get to the Claimant to no avail, there was no cogent evidence of the efforts made in this respect. No evidence of phone call data was availed. No evidence of written communication to the Claimant in the form of a notice to show cause or otherwise was presented to court in effort to end the employee employer relationship under section 41 of Employment Act. The court upheld the decision applied by the trial court in Nyabiba v Apak Company Limited (2023)e KLR that notice on desertion ought to issue to the employee as a step under section 41 of the Employment Act.
21. I find no reason to disturb the decision of the trial court that the respondent did not comply with section 41 of the Employment Act towards ending the employee-employer relationship after the said desertion. The court upheld the decision that the termination was wrongful and unfair.
Whether the trial court erred in reliefs granted.
22. The Appellant submitted that the court ought to have applied the decision in Ayub Komber Ciro v Umoja Rubber Products Ltd (2022)e KLR and ordered the Respondent to go back to work without prejudice of disciplinary proceedings by the employer as the last position at labour office was for the claimant to resume duty. It is trite written submissions are not pleadings. I perused the response to the claim filed before the trial court and dated 2nd December 2021. The appellant did not make that offer for the trial court to consider. The Appellant simply called for dismissal of the suit (pages 129-132).
23. The trial court awarded the Respondent remedies as follows:-
A declaration be and is hereby issued that the claimant suffered unfair, wrongful, and unlawful dismissal from employment.
One month pay in lieu of notice Kshs. 12,000
Accrued leave days Kshs. 151,200
House allowance Kshs. 306,217 .34
Damages for wrongful dismissal Kshs. 144,000
(all sums payable subject to statutory deductions)
Costs and interest
24. Having found the termination was unprocedural and unfair, the claim for Kshs.12,000 for one month pay in lieu of notice was upheld.
25. The Court found that there was no evidence produced by the Respondent to show the Claimant took leave days during the period he worked granted Kshs. 151, 200 for the accrued leave days the Claimant was under their employment. The Respondent did not controvert the claim and the award is upheld.
26. The Trial Court further held that there being no evidence produced to prove that the Claimant’s salary was inclusive of the housing allowance awarded the Claimant Housing allowance of Kshs. 306,217.34 (page 6 of the Record). The Claimant was employed on minimum wage (page 223 of ROA) and RW1 admitted he was not provided with housing. The Respondent did not avail the payslip to prove that wages paid included the housing allowance. The award is upheld.
27. The trial Court found stated the Claimant did not produce proof of his underpayment whereas the Respondent had produced a salary payment schedule showing the Claimant’s pay leading to rejection of this prayer. The finding is upheld.
28. The trial Court found that with regards to service pay, because the Claimant produced NSSF payment data showing monthly contributions made by Brink Security Services who was not the Respondent failed to prove that he was entitled to payment of service pay. The finding is upheld.
29. On compensation awarded, the trial Court further awarded the Claimant Kshs. 144,000 as prayed for damages for wrongful termination as provided for under Section 49(1) (c) of the Employment Act. The appellant submitted that the trial court having established from the muster roll the claimant absconded duty from 14th May 2021 to end month that should have been factored in the awards as held in Titus Malweo Wangereka v Gurdip Singh Rupra (2023)e KLR where Justice B.O Manani observed:-
‘’ I take cognizance of the fact that it is this conduct that directly resulted into the separation of the claimant . The Respondent’s only fault was that he failed to invite the Claimant to a disciplinary session before closing the employment relation between the parties.
38.Taking all these factors into consideration, I am of the view that the Claimant is morally undeserving of any compensation whatsoever. However, the law recognizes that the Claimant’s right to due process was infringed by the Respondent’s failure to invite him for a disciplinary hearing. And for this, the law requires that the Claimant be compensated in some way. It is for this reason alone that I will order that the Respondent pays the Claimant compensation for wrongful termination limited to the Claimant’s gross salary for three (3) months only, that is to say Ksh. 29,649/=’’ The court at appeal was persuaded by the decision. An employee who contributed to the separation can not be justified to award for maximum compensation. The court agreed with the submission by the appellant. The claimant’s conduct, of being absent from duty after expiry of off days, led to the separation. Consequently, the award of the compensation for 12 months’ salary was set aside and substituted with award the equivalent of 2 months' salary compensation thus Kshs. 24,000.
The court found no basis to interfere with the other awards.
Conclusion
30. The appeal is allowed on the award of compensation for the unlawful termination only which was reduced from maximum compensation of 12 months(Kshs. 144000) salary to 2 months salary (Kshs. 24,000). The Judgement and Decree of the Hon. Catherine Mburu. Principal Magistrate. delivered on 27th March 2024 in Kikuyu ELRC Cause No. E024 of 2021 is set aside and substituted as follows:-
Judgment is entered for the claimant against the respondent as follows:-
i. A declaration is issued that the termination was unprocedural and unfair,
ii. Notice pay in lieu awarded for sum of Kshs.12,000 being one month salary.
iii. Accrued leave days Kshs. 151,200
iv. House allowance Kshs. 306,217 .34
v. Damages for wrongful dismissal Kshs. 24,000
(all sums above payable subject to statutory deductions)
vi. Costs and interest from date of judgment until payment in full.
31. Each party to bear own costs in the appeal.
32. It is so Ordered.
DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 21ST DAY OF FEBRUARY, 2025.