Introduction
1. Via the Statement Claim dated 13th January,2025, filed in the above-stated suit, the Appellant sued the Respondent, and sought the following reliefs;
a. A declaration that his dismissal from employment by the Respondent was unlawful.
b. An order compelling the Respondent to pay his terminal dues totalling KShs. 738, 454.00.
c. An order compelling the Respondent to issue a certificate of service to him.
d. Costs of the Claim.
e. Interest on the sums sought.
2. The Respondent contested the Appellant’s claim in a Memorandum of Response dated 3rd February 2025, systematically denying the validity of the cause of action and the right to the relief sought.
3. After considering the Parties’ respective cases pursuant to the provisions of Rule 59 of this Court’s procedure Rules, the learned trial Magistrate found that the Appellant was entitled to notice pay [one month’s salary in lieu of notice] and a certificate of service, only. Dissatisfied with the judgment, the Appellant filed the appeal in this lead file.
4. This Court directed the parties to file their respective submissions on the instant appeal. They did so. The submissions are on record for this Court's consideration.
Appellant’s case before the trial court
5. The Appellant was verbally employed by the Respondent as a Machine Operator Assistant on 1st March 2011. Despite his frantic efforts to have the Respondent issue him a formal contract, the Respondent did not issue him one at any point.
6. The failure to issue him a formal contract of employment was discriminatory and a violation of his right to fair labour practices, as guaranteed under Article 41 of the Employment Act.
7. Throughout his employment, he worked from 8:00 am until 5:00 pm, Monday to Saturday. As such, working one extra hour daily. The Respondent refused to compensate him for the overtime.
8. The Appellant asserted that the Respondent consistently paid him below the statutory minimum wage under the Regulation of Wages [General] [Amendment]Order, cumulatively underpaying him by a sum of KShs. 302, 992.
9. He further asserted that, during the 12 years and 9 months he worked for the Respondent, the Respondent did not allow him to take his annual leave, despite annual leave being a statutory right. The Respondent did not compensate him for leave days earned but not taken. He claimed KShs. 83, 851.
10. Further, the Respondent made him work during public holidays without compensating him for the work. The Respondent only allowed him to enjoy the Christmas, Boxing Day, and New Year holidays. He sought for compensation in the sum of KShs. 65, 773.
11. On 4th December 2023, the Respondent’s Manager summoned him to his office and told him to retire home until further notice. Subsequently, he was never called to report back to work. As such, the Respondent terminated his employment. The termination was in breach of the dictates of Section 41 of the Employment Act, which provides for procedural fairness, and of Sections 43[1] and 45 of the Act, which provide for substantive fairness.
Respondent’s case
12. The Respondent contended that at all material times, the Appellant was its employee, with a salary of KShs. 9, 327, an amount which was in accordance with relevant General Wage Orders.
13. The Respondent asserted that the Appellant was engaged in 2021 as a general labourer on a fixed-term contract, following his application for the position. Between the years 2021 and 2023, he served under various fixed-term contracts. The last one lapsed on 30th March 2023. As such, his employment contract came to an end by effluxion of time. It was not terminated at the Respondent's initiative.
14. At the expiry of his employment, the Appellant was paid all his terminal dues. During his service, the Respondent duly allowed him to take his annual leave, and in instances where leave days were earned but not taken, the Claimant was paid in lieu.
15. It was further asserted that the Appellant never worked overtime or on public holidays.
16. Additionally, the Appellant was a registered member of the National Social Security Fund [NSSF], and as such, was not entitled to the benefit of service pay.
Judgment by the Lower Court
17. The court trial identified three issues for determination: whether the Appellant was unfairly terminated, whether the Appellant was entitled to the reliefs sought, and what orders on costs could be made. The learned trial magistrate found, under paragraph 18[c] of her judgment, that the Appellant’s evidence that he worked until 4th December, 2023, remained uncontroverted. Further, the Respondent failed to prove that the termination of the Appellant's employment was substantively justified and procedurally fair. She awarded only the reliefs mentioned in the introductory part of this judgment and ultimately dismissed the claim, despite the findings.
The Appeal
18. Dissatisfied with part of the Judgment of the lower Court, the Appellant filed the instant appeal, setting forth the following grounds:
1. The learned magistrate erred in law and in fact in proceeding to dismiss the entire suit without analysing or appreciating the overwhelming evidence presented by the Appellant.
2. The learned magistrate erred in law and in fact by dismissing the claim for unfair termination despite reaching a finding of fact and law that the termination of the Appellant’s employment by the Respondent on 4th December 2023 was both substantively and procedurally unfair.
3. The learned magistrate erred in law and in fact by dismissing the Appellant's prayer for unpaid Tallying Guard Allowance.
4. The learned magistrate erred in law and in fact in finding that the doctrine of legitimate expectation of contract renewal was inapplicable, despite acknowledging the principle in the case of Teresa Carlo Omondi and her finding of fact that the Appellant’s last contract expired on 30th March 2023, and continued working for more than eight months without a contract until December 2023.
5. The learned magistrate erred in law and in fact in reaching a finding of fact that the Respondent unfairly terminated the Appellant’s employment on 4th December 2023 and awarding him one month’s salary in lieu of notice, but nonetheless reached a contrary/inconsistent determination dismissing the Appellant’s case.
6. The learned magistrate erred and misdirected herself in law, and by failing to take into account the issues for determination presented by the Appellant.
7. The learned magistrate erred in law and in fact in declining the Appellant’s claim without taking into account the evidence provided and her own findings of fact from the said evidence.
Analysis and determination
19. No doubt, the role of a First Appellate Court is to reassess and reevaluate the material presented to the trial Court and draw its own independent conclusions. However, it should bear in mind that it neither saw nor heard the witness testify, and give due allowance for that. See Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA 123.
20. I have thoroughly reviewed the grounds of appeal, the parties’ pleadings, the material presented before the trial court, and the written submissions by Counsel. In my assessment, the two appeals turn on three key issues: (a) whether the Appellant’s employment was terminated at the initiative of the Respondent or came to an end by effluxion of time, and (b) what relief the Appellant was fairly entitled to in the circumstances of the matter.
21. Prior to addressing the issues identified, I deem it necessary to highlight that the Judgment rendered by the learned trial Magistrate is fraught with irreconcilable inconsistencies, the cause of which is difficult to fathom. It can only be presumed that this stems from an inaccurate identification of the issues for determination and a deficiency in attentiveness during the preparation of the judgment.
22. The Court notes that by consent of the parties, the trial Court proceeded with the case pursuant to the provisions of Rule 59 of the Employment and Labour Relations Court [ Procedure] Rules. The provision stipulates;
“ The Court may, either by an agreement by all parties, or on its own motion, proceed to determine a suit before it on the basis of pleadings, affidavits, documents filed and submissions made by the parties.”
23. In my view, the provision was not intended for suits involving highly contentious issues, such as the matter before the learned trial Magistrate. Considering the issues in controversy in the matter, I am of the view that the matter ought to have proceeded in the usual manner, enabling the parties’ respective evidence to be tested by cross-examination.
24. This Court is satisfied that the Appellant was employed by the Respondent under various fixed-term contracts, the last of which expired on 30th March 2023. From the outset, the Appellant contended, and throughout maintained, that his employment terminated on 4th December 2023. He pleaded that the Respondent keep a check-in register, which he [the Appellant] often signed upon reporting for work. The Respondent did not deny that it had such a register or produce it before the trial court, thereby failing to dispel the impression that, after the expiry of the last contract, the Appellant continued working for approximately eight months.
25. From the foregoing angle, the learned trial Magistrate cannot be faulted for finding that the Appellant’s evidence that he worked up to 4th December 2023 was not rebutted.
26. This Court has not lost sight of the fact that the Respondent did not challenge this vital finding, or any finding that was prejudicial to them, by way of a counterclaim.
27. Having correctly found that the termination occurred on 4th December 2023, almost eight months after the appointed lapse date for the last fixed-term contract under which the Appellant served the Respondent, the only reasonable legal conclusion is that, after the lapse date, the Appellant’s employment became month-to-month and was therefore terminable by notice under section 35 of the Employment Act, and thereby affording him the protections of a term employee.
28. As such, the learned trial Magistrate correctly applied the provisions of sections 43 and 45 of the Employment Act that provide for substantive fairness, and Section 41 that speaks to procedural fairness. Buoyed by the position it took that the Appellant’s employment was not terminated at its initiative, the Respondent did not present any evidence to prove that the reason for the termination was valid and fair, and that the procedure contemplated under section 41 of the Act was adhered to. The trial Magistrate’s finding that the termination was initiated by the Respondent and that it was unfair cannot be held to be erroneous.
29. By reason of the foregoing premises, I find the learned trial Magistrate’s action in dismissing the Appellant’s claim not in line with the aforementioned correct findings. I set that finding aside.
30. Section 49 [1][c] of the Employment Act confers on the courts the authority to award compensatory relief to an employee who has successfully challenged their employer's decision as unfair. This authority is discretionary and is exercised according to the circumstances of each case. The learned trial Magistrate declined to grant the relief, in my view, because it is not independent of the claim for unfair dismissal but is dependent on it.
31. I have carefully considered the circumstances surrounding the termination of the Appellant’s employment, including the fact that he was serving under a fixed-term contract that had expired, his legitimate expectation following his continued service despite the contract’s expiry, the Respondent’s failure to adhere to the dictates of procedural and substantive fairness, and the cumulative years he had served, and have concluded that he was entitled to the compensatory award of five months’ gross salary.
32. It is important to point out that the termination was not on account of redundancy. The Appellant’s insistence on the relief of severance pay is totally misplaced.
33. In the upshot,
[a] It is hereby declared that the termination of the Appellant’s employment was at the initiative of the Respondent. It was both procedurally and substantially unfair.
[b] In addition to the notice pay, the Appellant is awarded compensation for unfair termination pursuant to the provisions of section 49[1][c], five months’ gross salary, KShs. 46,635.
[c] The Costs of this appeal shall be to the Appellant.
Read Signed and Delivered this 18th Day of May 2026