Background
1 Asserting that at all material times he was employed by the Appellant as a Security Guard, whose employment was unfairly terminated, the Respondent sued the Appellant in the trial Court in the suit mentioned above, claiming various remedies. After hearing him ex parte, the trial Court, through its judgment dated 30th March 2023, found in favour of the Respondent, declaring that the termination of his employment was unfair, and awarded him all the reliefs he had sought in his pleadings.
2 Aggrieved by the Judgment, and after obtaining leave to appeal out of time, from this Court, the Appellant challenged the Judgment through their memorandum of appeal filed herein.
3 Following directions by this Court, the appeal was canvassed by way of written submissions.
The Respondent’s Case Before the Trial Court.
4 It was the Respondent’s case that he first came into the employment of the Appellant on 15th June,2019, as a night watchman. Throughout his employment with the Appellant, he continuously and dedicatedly worked to the satisfaction of his employer, the Appellant.
5 The Appellant didn’t issue him with a contract of employment. They never issued him with an itemised pay slip. His gross salary was KShs 15,000, an amount which was below the statutory minimum wage.
6 He worked from 6.00 pm to 6.00 am, seven days a week.
7 He worked for Appellant until the 30th of September, 2020, when their Branch Manager, Mr. Fredrick Mwitu, informed him that his employment had been terminated, and promised to call him later, a call which never happened.
8 He asserted that, in the circumstances, the actions by the Appellant amounted to summarily dismissing him from employment. The dismissal was unfair, unlawful, and inhuman, as no notice to show cause was ever issued to him, demanding that he answer any charges; he hadn’t committed any infraction that could serve as a basis for the summary dismissal, and he was not given an opportunity to be heard.
9 The Appellant, without any justifiable reason, failed to pay his salary for September 2020.
10 He asserted that he never took annual leave for the entire duration of his employment with the Appellant. The Appellant didn’t pay him in lieu.
11 He worked on public holidays and was never compensated for his work
The Appellant’s case.
12 Despite entering an appearance, the Appellant didn’t file a response to the Respondent’s claim. Consequently, they didn’t present a witness to testify on their behalf.
The Judgment by the Lower Court.
13 After considering the Respondent’s evidence, the learned trial Magistrate entered Judgment for the Respondent against the Appellant in the manner brought out in the introductory paragraph of this Judgement.
The Appeal
14 Dissatisfied with the Judgment of the lower Court, the Appellant filed the instant appeal, setting forth the following grounds;
I. THAT the learned Magistrate erred in law and fact by proceeding with the case without the active participation of the Appellant, thereby violating the principles of natural justice and the right to a fair hearing as enshrined in Article 50 of the Constitution of Kenya. Throughout the trial phase until Judgment, the Appellant had no legal representation and was unaware of the suit, thus unable to enter appearance and defend themselves adequately.
II. THAT the learned trial Magistrate erred in law and fact by finding that the Appellant wrongfully, unfairly, and unlawfully terminated the Respondent’s employment without sufficient evidence to support such a conclusion, contrary to section 45 of the Employment Act.
III. THAT the learned Magistrate erred in law and fact by failing to appreciate that procedural and substantive fairness was adhered to by the Appellant in the termination of the Respondent’s employment, as required under sections 41 and 43 of the Act.
IV. THAT the learned Magistrate erred in law and in fact by disregarding the fact that the Respondent was employed on a casual basis and was therefore not entitled to the protections and benefits accorded to the regular employees under the Employment Act, specifically sections 35 and 36.
V. THAT the learned trial Magistrate erred by ignoring the fact that the Respondent’s employment was terminated due to completion of the specific task for which he was hired, a scenario that is expressly provided for under section 35[1] of the Employment Act.
VI. THAT the learned trial Magistrate erred in law and fact by allowing an excessive, incongruent, and punitive award, given that the Respondent’s monthly salary was only KShs. 15,000 and that he had only worked for 11months.
VII. THAT the learned trial Magistrate erred in law and in fact by awarding terminal dues, costs, and interest to the Respondent without a sufficient legal basis and contrary to principles governing such awards. Specifically, the learned Magistrate erroneously granted the Respondent reliefs typically accorded to permanent employees under the Employment Act, despite the Respondent’s status as a casual employee.
VIII. THAT in all the circumstances of this case, the findings of the learned Magistrate are unsustainable in law and amount to a travesty of justice.
Analysis and Determination
15 I have carefully considered the grounds of appeal, the material that was placed before the learned trial Magistrate and the submissions filed by the parties, and I conclude that the Appellant’s appeal herein revolves around four broad issues, thus:
I. Under what form of contract of employment was the Respondent serving at all material times?
II. Whether the termination of the Respondent was at the initiative of the Appellant.
III. Whether the termination of the Claimant’s employment was fair.
IV. Whether the Claimant is entitled to the reliefs sought.
Of the form of employment contract.
16. A careful examination of the grounds of appeal, particularly concerning the nature of employment of the Respondent at all material times, suggests that the Appellant appears to lack a clear understanding of the nature of the employment contract. At ground 4 of the Memorandum of Appeal, the Appellant suggests that the Respondent was at all times employed on a casual basis, and that the learned trial Magistrate erred in not appreciating this in his Judgment. At the same time, the fifth ground of Appeal suggests that he was an employee who was employed for a specific task, and whose employment terminated upon completion of that task.
17. These are two types of employment. It is reasonable to expect that an employee cannot serve under both forms at the same time. In any case, there was no evidence presented to the trial Court showing that the Respondent’s manner of work qualified him as a casual worker under section 2 of the Employment Act.
18. The Appellant’s submissions to the effect that the Respondent was a casual employee do not flow from any evidence before the trial Court. As such, they aren’t helpful to the Appellant’s appeal. Submissions are never a substitute for evidence.
19. The Respondent’s pleadings and evidence before the trial Court, in my view, suggest the Respondent’s employment was an indefinite contract of employment that would only lawfully and fairly be terminated in compliance with the provisions of sections 41, 43, and 45 of the Employment Act. His evidence was not challenged. I have no reason to hold that his employment contract was different in form from the one he testified there was.
20. The learned trial Magistrate didn’t err in not finding that the Respondent was not employed as a casual employee and therefore not one entitled to the rights and protections accorded under the Employment Act for term employees.
Whether the Respondent’s employment was terminated at the initiative of the Appellant.
21. The Respondent, in his pleadings and evidence before the trial Court, explained in detail how the termination of his employment occurred. His evidence was not discounted in any manner by the Appellant. Consequently, this Court has no basis upon which it can disturb the trial Court’s finding that the termination was at the initiative of the Appellant.
Whether the termination of the Respondent’s employment was unfair.
22. The Respondent’s Counsel submitted that, contrary to the learned trial Magistrate’s finding, the termination of the Respondent’s employment was procedurally and substantively fair, as the termination was based on completion of his task. Having found, as I have hereinabove, that I am not convinced by the Appellant’s position regarding the Respondent’s form of employment, I am not persuaded by these submissions by Counsel to the effect that the termination was fair.
23. The Employment Act, 2007, imposes specific legal obligations on the employer. These obligations can only be considered fulfilled if the employer provides adequate evidence. In the absence of such evidence, the obligations will undoubtedly remain unfulfilled.
24. Section 43 of the Employment Act 2007 requires the employer in a dispute over the termination of an employee’s employment to prove the reason for the termination. Where the employer fails to do so, the termination shall be deemed unfair by operation of law, pursuant to Section 45 of the Act.
25. The Act imposes an additional duty on the employer under section 45 of the Employment Act to demonstrate that the reasons were fair and valid. It is possible, therefore, that the employer can discharge their burden under section 43 of the Act; however, the termination may still be deemed unfair if they do not demonstrate that the reason for the termination was legitimate.
26. Under Section 41 of the Employment Act, any employer contemplating terminating an employee’s employment must conform to the procedure embodied therein. The procedure is mandatory. The employer must notify the employee of their intention and the reasons thereof. They must accord the employee an adequate opportunity to prepare and make a representation on the reasons. Lastly, the employer must consider the representations before making a final decision.
27. The duty to prove that there was compliance with the dictates of procedural fairness falls on the employer.
28. Elaborating on the employer’s legal burden under the provisions stated above, the Court of Appeal aptly captured it in the case of Pius Machafu Isundu vs Lavington Security Guards Limited [2017] KECA 225 [ eKLR], thus;
“There can be no doubt that the Act, which was enacted in 2007, places heavy legal obligations on the employer in matters of summary dismissal for breach of employment contract and unfair termination involving breach of statutory law. The employer must prove the reasons for termination/ dismissal [section 43]; prove the reasons are valid and fair [section 45]; prove that the grounds are justified [section 47[5], among other provisions. A mandatory and elaborate process is then set up under section 41, requiring notification and hearing before termination. ……..”
29. Having not tendered any evidence aimed at discharging their legal burden under the aforementioned provisions of the law, I find no difficulty in concluding that the termination of the Respondent’s employment was both procedurally and substantively unfair. The learned trial magistrate was correct in so finding.
Of the reliefs granted
30. The Appellant challenged the learned trial Magistrate’s Court’s award of various reliefs, describing them as incongruent and punitive. They argued that it was difficult to understand how a watchman earning Kshs. Fifteen thousand per month could be awarded Kshs. 879,000.
31. This ground of appeal and the submissions thereon do not appreciate the fact that the figure was cumulative on all the various reliefs that the Respondent sought, some of which were anchored on the claim for unfair termination, and others on his statutory rights under the Employment Act, and the Labour Institutions. Reasonably, the attack would have been on the various awards for the specific reliefs, rather than a global attack, using a global reason.
32. This Court is very hesitant to venture into the realm of speculation as to why the Appellant could be having a problem with the various awards.
33. In light of the premises, I am not convinced that the Appellant has demonstrated a sense that can form a basis for this Court’s interference with the learned trial magistrate’s award on the various reliefs, as he did.
34. The Procedure Rules of this Court adequately provide a mechanism for approaching the court to set aside an ex parte order entered due to the absence of attendance or a default in appearance. The law clearly outlines the circumstances under which such an application can be made and succeed. If such an application has been filed but is declined by the Court, the only recourse for the Applicant is to challenge the decision through an appeal or a judicial review application, depending on the circumstances of the case.
35. Where an application was not filed for setting aside on an exparte Judgement, how the judgment was entered cannot be a ground of appeal, in an appeal challenging the Judgment. This Court takes this view, on the premise that establishing the factors, such as non-service or impropriety in the service of summons to enter appearance or a hearing notice, may require affidavit evidence.
36. Consequently, the 1st ground of the instant appeal is improperly raised.
37. In the upshot, I find the Appellant’s appeal herein lacking in merit. It is hereby dismissed with costs.
Read, signed, and delivered virtually in Mombasa on July 31, 2025.