A. Introduction and a note on the record
1. This is a first appeal from the judgment and decree of the Chief Magistrate's Court at Mombasa (Hon. D.O. Mbeja, Principal Magistrate) delivered on 16th November 2023 in Mombasa CMELRC Cause No. E435 of 2022, Sharifa Kassim Ismael v The Board of Management, Sheikh Zayed Children Welfare Centre. The trial court found that the Respondent's termination from employment was unfair and unlawful, and awarded her a global sum of Kshs. 473,600/=, together with costs and interest at court rates from the date of filing suit.
2. Before descending into the merits, it is necessary to point out the route by which this appeal came to be filed at all bears recording, because it explains the otherwise curious two-year gap between the delivery of judgment (November 2023) and the filing of the Memorandum of Appeal (2025), and because it disposes of any suggestion that the appeal is incompetent for want of leave or is time-barred. The record shows that the Appellant first lodged ELRC Appeal No. E005 of 2024, which was struck out for want of leave, the judgment below having been entered in default of appearance and therefore requiring leave to appeal out of time. The Appellant then sought such leave from the trial court itself, which application was dismissed for want of jurisdiction. The Appellant thereafter properly moved this Court by way of ELRCMISC/E008/2025, in which Hon. Lady Justice Monica Mbaru, by a ruling delivered on 27th March 2025, granted the Appellant fourteen (14) days within which to file and serve its intended appeal, and further granted a stay of execution of the decree conditional upon the deposit in court of the decretal sum of Kshs. 556,475/= on or before 10th April 2025. The present Memorandum of Appeal was filed pursuant to that leave.
B. The pleaded case and the evidence before the trial court
3. By a Memorandum of Claim dated 15th July 2022, the Respondent (then Claimant) pleaded that she was engaged by the Appellant as a madrassa teacher (Ustadha) on or about 8th May 2014, and that she worked continuously until 11th January 2022, when her services were terminated. She pleaded, and it is not disputed, that she held a succession of written, fixed-term contracts: an initial short engagement from 16th January 2014, followed by contracts running from 1st May 2014 to 30th April 2016, then 1st January 2017 to 31st December 2018, and finally 1st January 2019 to 31st December 2020. It is common ground on the face of the documents produced by both sides that no further written contract was issued after 31st December 2020, yet the Respondent continued to work, and continued to be paid her gross monthly salary of Kshs. 34,000/=, without interruption, well into the course of 2021 — a fact amply corroborated by the payslips for January through November 2021 contained in the Respondent's own documents and reproduced in the Record of Appeal.
4. The Appellant's own witness, its Director Mr. Abubakar Hassan Dindia (RW1), confirmed this in his witness statement: "In 2021, the Centre undertook restructuring and all contracts were vetted afresh by the Board... The vetting lasted the whole of 2021 during which the expired contracts were not renewed, including Claimant's." It is thus common cause, on the Appellant's own case, that between 1st January 2021 and 11th January 2022 the Respondent worked without any written contract, fixed-term or otherwise, and did so on exactly the same terms — same duties, same hours, same monthly wage — as she had under the expired written contract.
5. On or around 22nd December 2021, the Respondent travelled up-country over the school's third-term holiday, her husband having returned from abroad. The record contains a Swahili-language internal report from the Head of the Madrassa Department, Ustadh Suleiman Matata, to the Director, dated 8th January 2022, complaining that the Respondent had not returned to school in time for its reopening on 3rd January 2022 and remained absent as at the date of that report. It is not disputed that the Respondent in fact reported back to work on or about 10th–11th January 2022.
6. On 11th January 2022 the Respondent was called to the Director's office and handed a letter dated that same day, reference SZWC/2022/001/DIR/AHD, headed "RE: TERMINATION OF CONTRACT". I set out its operative part in full, because its wording is central to this appeal:
"Kindly note that your contract with the Centre as a madrassa teacher has expired and will not be renewed due to your unwarranted absenteeism from duty among other reasons. This letter therefore serves as a one-month notice which will expire on 11th January 2022 whereupon you will cease being a staff of Sheikh Zayed Children Welfare Centre. Kindly liaise with the Trustees of the Provident Fund to process your payment as soon as possible after clearing with all the relevant departments of the Centre."
7. It is common ground that this was the only letter of termination issued, and that no separate notice to show cause, and no separate letter inviting the Respondent to a disciplinary hearing, was ever produced in evidence. Indeed, on cross-examination RW1 conceded in terms: "The notice to show cause was not attached... The document is not part of the attachment." No witness for the Appellant asserted that any such document existed but was simply omitted from the trial bundle; the evidence is that none was ever issued.
8. The Appellant relied at trial, and relies again on appeal, on a document styled "Disciplinary Committee Report on Teachers' Conduct" dated 11th December 2021 (exhibit 26 on the Appellant's list of documents). I return to this document in detail below, since its proper characterisation is decisive of much of this appeal.
9. The Respondent testified as CW1 on 7th March 2023. She stated, among other things, that she began work on 16th January 2014 and worked until 11th January 2022; that her last written contract was for the period ending in 2020; that she was never issued with a warning letter; that she was never called to any disciplinary meeting; that she did not sign anywhere on the disciplinary minutes later produced by the Appellant; and that she had sought and been given permission by the deputy (the Mudeer) before she travelled. On cross-examination she maintained that she "was never called to a disciplinary meeting" and "did not sign anywhere."
10. RW1 testified on 29th May 2023, adopting his witness statement. Under cross-examination, he made a number of material concessions. He conceded that "the notice to show cause was not attached." He conceded that "the staff did not get the privilege of signing the report" — that is, that the disciplinary committee report was never signed by the Respondent or, it would appear, by any of the accused staff. He conceded that the termination letter itself contained "a typo", for which "I gave an amended document", though no such amended document was tendered at trial or is to be found anywhere in the Record of Appeal. He conceded that he had personally stamped and signed the letter of 11th January 2022 only on "10.1.2022" notwithstanding its face date. Significantly, the Appellant's second listed witness, Mr. Suleiman Bakari Matata — the Mudeer of Madrassa, and the one person whose first-hand account underlies almost every allegation levelled against the Respondent — was never called to testify. The Respondent closed her case on 7th March 2023; the Appellant, having earlier indicated it would call a second witness, closed its own case after RW1 alone on 29th May 2023.
C. The trial court's judgment
11. The trial court, having reviewed the pleadings and evidence, correctly directed itself to Sections 43(1) and 45(2) of the Employment Act, 2007, and to the authority of Alphonce Machanga Mwachanya v Operational 680 Ltd [2013] eKLR on the requirements of Section 41, and of Kenfreight (E.A.) Limited v Benson K. Nguti on the burden of proof in termination disputes. I pause to note, for accuracy, that the trial court attributed the Kenfreight holding to "the Supreme Court" in a "2019" decision; the correct citation, as appears from the very authorities relied upon by both parties to this appeal, is Kenfreight (E.A.) Limited v Benson K. Nguti [2016] eKLR, a decision of the Court of Appeal sitting at Malindi. Nothing turns on the misattribution for present purposes, since the proposition of law extracted by the trial court is sound and is not disputed by either party, but I record the correction so that the point is not repeated.
12. The trial court's central and, in my view, entirely justified finding was this: "The process leading to the claimant's termination in the opinion of the court was unfair as the claimant was not subjected to a fair disciplinary hearing and invited to show cause why her contract of employment should be terminated." On that basis, the trial court held that the Respondent had established, on a balance of probabilities, a case of wrongful, unfair and unlawful termination, and proceeded to make the following award: "the claimant is entitled to reliefs sought in the Memorandum of Claim in the sum of Kshs. 473,600 all circumstances considered", together with costs and interest at court rates from the date of filing suit.
13. It is immediately apparent, and this is a matter to which I return at length below, that the trial court's award of Kshs. 473,600/= is not the sum of the reliefs pleaded — the Memorandum of Claim and the decree extracted from the judgment together particularise a claim of Kshs. 34,000/= for notice pay, Kshs. 116,600/= for leave allowance, Kshs. 119,000/= for service pay and Kshs. 408,000/= for compensation, totalling Kshs. 677,600/=. The judgment does not explain how the figure of Kshs. 473,600/= was arrived at, which of the four heads of claim were allowed in full, which in part, and which (if any) were declined altogether. I shall analyse the significance of this omission in its own section below.
D. Grounds of appeal
14. The Memorandum of Appeal raises, in substance, five grounds: (i) that the trial court erred in law and fact in finding that the termination was unfair and unlawful; (ii) that it erred in holding the Appellant liable for unfair termination; (iii) that it erred in awarding terminal dues which the Respondent had failed to prove; (iv) that it erred in failing to evaluate the evidence on record, arriving at a wrong conclusion; and (v) that it erred in taking into account irrelevant material.
E. The jurisdiction and duty of a first appellate court
15. This being a first appeal, this Court sits, in effect, as a court of both fact and law. It is trite, and I need only restate rather than elaborately justify, the principle settled in Selle v Associated Motor Boat Co Ltd [1968] EA 123 and Peters v Sunday Post Ltd [1958] EA 424, and restated by the Court of Appeal in Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR, that a first appellate court has both the jurisdiction and the duty to re-evaluate, re-assess and re-analyse the evidence on the record and to reach its own independent conclusions of both fact and law, giving due allowance for the fact that it has not seen or heard the witnesses testify and according the trial court's findings on credibility the deference that entails. This duty is not discharged by a mechanical repetition of the trial court's reasoning, nor by treating the trial court's ultimate figure as a given to be tinkered with at the margins; it requires this Court to go back to the primary evidence itself.
16. It is precisely because I have undertaken that exercise that I am able to say, with respect to the trial court, that while its ultimate finding of unfair termination was correct, several of the submissions advanced before it — and repeated with even greater elaboration on this appeal — ventured well beyond what a proper application of Sections 41, 43, 45 and 47(5) of the Employment Act required it to decide, and that a more exacting analysis of the documents actually produced, in particular the disciplinary committee report and the termination letter, yields a rather different — and more securely founded — route to the same ultimate conclusion.
ANALYSIS AND DETERMINATION
F. Issue One — the character of the employment relationship after 31st December 2020, and why it matters
17. I begin here because much of the Appellant's submission proceeds, whether consciously or not, on the unspoken premise that the Respondent's rights and the Appellant's obligations at the moment of termination are to be measured against the terms of the last written contract — the one that expired on 31st December 2020 — as though that instrument, though dead, continued in some ghostly way to define the relationship a full year later. That premise is wrong, and its correction reorders the entire analysis that follows.
18. It is not in dispute that the Respondent continued, from 1st January 2021 until 11th January 2022, to render exactly the same services, for exactly the same monthly wage of Kshs. 34,000/=, on exactly the same working hours, as she had under the expired written contract. Section 35(1) of the Employment Act, 2007 provides, in material part, that a contract of service not being a contract to perform specific work shall, where wages are paid or payable monthly, "be deemed to be... a contract terminable by either party at the end of the period of twenty-eight days next following the giving of notice in writing". This is precisely the default rule the statute supplies for an employment relationship that subsists — as this one plainly did — without any express written term governing notice. Once the written fixed-term contract lapsed on 31st December 2020 and was not renewed in writing, but the parties nonetheless continued to perform under it in substance, the relationship that arose by conduct from 1st January 2021 onward was not a continuation of the fixed term (which had, by then, definitively ended) but a fresh contract of service for an unspecified period, terminable, by operation of Section 35(1)(c), on notice referable to the monthly pay cycle — in other words, precisely the "month-to-month character" that this Court has been urged to recognise.
19. This is not a mere semantic distinction; it carries real legal consequences, and it is the first respect in which the trial court's undifferentiated approach to the record requires correction. An employer cannot, by the simple expedient of declining to reduce a continuing relationship to writing, insulate itself from the protections Parliament has built into the Act for employees on contracts of unspecified duration. Nor can an employee's earlier years of service under successive fixed terms be imported wholesale, for every purpose, into the assessment of what is owed to her in respect of the final, unwritten chapter of that service — a point of real significance, as will be seen, to the quantification of leave allowance and compensation below. The two periods — service under the written, fixed-term contracts (8th May 2014 to 31st December 2020), and service under the unwritten, indefinite, month-to-month contract that followed (1st January 2021 to 11th January 2022) — must be kept analytically distinct, because different legal consequences attach to the ending of each.
20. The first consequence, and the one most immediately relevant, is that the full panoply of procedural and substantive fairness safeguards in Sections 41, 43, 45 and 47(5) of the Employment Act applied to the termination of the Respondent's employment on 11th January 2022 with undiminished force — indeed, arguably with greater force than they would have applied to the mere non-renewal of a fixed term that had run its course on its own appointed date. Had the Respondent's last written contract still been subsisting on 11th January 2022 and simply expired of its own accord, the Appellant might have had room to argue, as fixed-term jurisprudence in this country generally recognises, that expiry by effluxion of time is not, without more, a "termination" attracting the full procedural apparatus of Section 41. But that is not this case. By 11th January 2022 there was no fixed term left to expire. There was only an ongoing, unwritten, indefinite contract of service, and what the Appellant did on that day was terminate it. A termination of an indefinite contract of service, on whatever stated ground, is termination full stop, and it is common ground — indeed it is the Appellant's own pleaded defence at trial (Statement of Defence, paragraph 5(vi)) — that this is precisely how the Appellant itself characterised its own act: "the Respondent declined to renew the Contract based on the Disciplinary Committee Report and therefore issued the Claimant with one month notice of termination of her Contract." One cannot in the same breath issue a notice of termination and disclaim the legal consequences of having terminated.
21. It follows, and I so hold, that the trial court was correct to treat this as a termination attracting the full protective machinery of Sections 41, 43, 45 and 47(5), and any suggestion to the contrary advanced in this appeal — that the Respondent's absence of a written contract somehow diminished the fairness safeguards otherwise due to her — must fail. If anything, an employer who keeps an employee working indefinitely, without troubling to reduce the relationship to writing, cannot be heard to complain when the ordinary statutory notice and fairness architecture, rather than some bespoke contractual regime, comes to govern the parting of ways.
G. Issue Two — was the process leading to termination fair?
22. Section 41 of the Employment Act provides that an employer shall, before terminating an employee's services on grounds of misconduct, poor performance or physical incapacity, "explain to the employee, in a language the employee understands, the reason for which the employer is considering termination" and, further, allow the employee a representative of her choosing to be present during that explanation, and hear and consider any explanation given. Section 43(1) places the burden of proving the reason for termination squarely on the employer, on pain of the termination being "deemed to have been unfair". Section 45(2) provides that a termination is unfair unless the employer proves that the reason for it was valid, that it was fair, and that the employment was terminated in accordance with fair procedure. Section 47(5) allocates the burden thus: the employee need only assert that an unfair termination has occurred; it is for the employer to justify the grounds relied upon. As the Court of Appeal put it in Kenfreight (E.A.) Limited v Benson K. Nguti [2016] eKLR, in a passage the trial court itself (albeit under a mistaken citation) correctly extracted and applied: "it is considered unfair to terminate a contract of service if the employer fails to demonstrate that the reason for the termination is valid and fair... That the employer must also prove that the termination was in accordance with fair procedure and that the burden on the employee is only limited to asserting that an unfair termination has occurred."
23. The Appellant's answer to this burden, at trial and on appeal, is the Disciplinary Committee Report dated 11th December 2021. It is upon this single document that the entire edifice of the Appellant's defence to the unfair-termination claim rests. It therefore repays the closest possible scrutiny — and the user's direction that this Court "critically examine" the minutes and "conclude" is, in my respectful view, entirely warranted by what a close reading of the document actually discloses.
24. Four features of that report, taken together, persuade me that it cannot, and does not, discharge the Appellant's burden under Sections 41, 43 and 45.
25. First, the report is not, and does not purport to be, a hearing convened for the Respondent. It records a general disciplinary sweep held on 11th December 2021, at which the Committee dealt with ten different members of staff for entirely unrelated allegations — teachers borrowing money from pupils, teachers cheating in national examinations, a teacher losing examination scripts, teachers arriving late for a graduation ceremony. The Respondent's name appears as item 4 on a list of ten, accused of "insubordination, late coming and unwarranted absenteeism from duty". Nothing in the document's structure suggests it was convened to hear her case specifically, still less that the process afforded her the individualised attention Section 41 contemplates.
26. Second — and this is the most telling feature of all — a careful, clause-by-clause comparison of how the report deals with the Respondent against how it deals with every other member of staff named in it reveals a stark and, I think, decisive asymmetry. In respect of Mr. Suleiman Odundo, accused of losing examination scripts, the report states in terms: "He was summoned before the disciplinary committee and he gave the following reasons for his action" — followed by four numbered points in his own voice. In respect of the teachers accused of cheating in examinations, the report records: "When summoned, they confessed doing that in order to beat the deadline..." In respect of Md. Maimuna Mohammed, accused of altering examination results, the report records that "she denied everything telling Md. Fatma that she is accusing her falsely" and that she offered an explanation for her conduct. In every one of these instances the report affirmatively records the accused member of staff's own appearance, and her or his own words, before the Committee. By stark contrast, the entry against the Respondent records only this: "The Mudeer of Madrassa, Ustadh Suleiman Matata revealed that ustadha Sherifa is an incorrigible late comer... He referred to an incident on 4/08/2021... He asked her to respect school policies and procedures. She nonchalantly promised to turn over a new leaf." Every sentence in that passage is attributed to the Mudeer — what he "revealed," what he "referred to," what he "asked." There is no sentence recording that the Respondent appeared before the Committee on 11th December 2021, was informed of the specific allegations, or was invited then and there to respond to the Committee itself. The passage reads, on a fair construction, as the Mudeer's own second-hand narration to the Committee of a private conversation he says he once had with her — not as a record of her having been heard by the body that was supposedly disciplining her. A document that meticulously distinguishes, for nine of the ten persons it addresses, between an allegation and that person's own recorded response to it, but which for the tenth person — the Respondent — records only the accuser's narrative and never the accused's own voice, cannot be read as evidence that the tenth person was given the hearing the other nine plainly were.
27. Third, the report's own recommendations confirm that, as of 11th December 2021, no final disciplinary sanction had been visited upon the Respondent at all. The Committee recommended, prospectively, that "Md. Maimuna & Sheriffa should get warning letters in order to curb their late-coming and absconding duties" and that "This Discipline Committee Report should be used as a reference for renewal of contracts." Both recommendations are framed in the future tense, as things yet to be done or to be borne in mind for a later decision — not as a record of a hearing that had already concluded with a finding against her, still less as a decision to terminate.
28. Fourth, and perhaps most fundamentally, the report is dated 11th December 2021 — weeks before the very conduct relied upon in the termination letter itself occurred. The termination letter of 11th January 2022 cites "unwarranted absenteeism from duty" as the operative reason. The absence in question — the Respondent's failure to report for the reopening of the third term on 3rd January 2022, following her upcountry travel from around 22nd December 2021 — post-dates the disciplinary committee meeting by between three and five weeks. A disciplinary committee cannot, by any stretch of logic or law, have heard, considered and made findings on 11th December 2021 about an absence that had not yet happened. Whatever the report says about the Respondent's historical late-coming, it says nothing, and could say nothing, about the very absenteeism the Appellant ultimately relied upon to terminate her. To the extent the Appellant's defence conflates the two — treating the 11th December report as if it were also a hearing into the January 2022 absence — that conflation is simply untenable on the dates the Appellant's own documents disclose.
29. To these four textual and chronological infirmities must be added two evidential ones. The report bears no signature of the Respondent, a fact RW1 himself conceded under cross-examination ("the staff did not get the privilege of signing the report"). And the one witness whose personal knowledge underlies every allegation against the Respondent recorded in the report — Ustadh Suleiman Bakari Matata, the Mudeer — was listed as the Appellant's second witness but was never called to testify, meaning his account was never subjected to cross-examination and was never tested by the trial court at all; it survives only as hearsay recounted within a document, and repeated at one further remove by RW1, who candidly limited his own evidence to what "the report" said rather than what he personally witnessed.
30. For all of these reasons I conclude, agreeing with the submission pressed upon me on this point, that the minutes tendered by the Appellant cannot come to the aid of its defence. They do not establish that the Respondent was ever explained the reason for her impending termination in a language she understood, as Section 41 requires; they do not establish that she was afforded, or even offered, a representative to be present; they do not establish that any explanation from her was heard or considered; and no separate notice to show cause or invitation to a disciplinary hearing was ever issued to her at all — a point the Appellant's own witness effectively conceded. This finding is entirely consistent with, and indeed reinforces, the persuasive authority of Hosea Akunga Ombwori v Bidco Oil Refineries Limited [2017] eKLR, where the Employment and Labour Relations Court held that to satisfy Section 41 "an employer issues what is called in ordinary parlance a show cause notice/letter [which] should outline the allegations or charges against the employee and also request him/her to respond within a reasonable time [and] ought to inform the employee that disciplinary action which might lead to termination of employment is under consideration" — and with Duncan Mbarire v Nairobi Aviation College Limited [2016] eKLR, where the court observed, in a passage I gratefully adopt, that "it does not matter what offence the employee is accused of. If the employee is not heard, the termination is ipso facto unfair."
H. Issue Three — was there a valid and fair reason for termination? The ambiguity of the termination letter
31. Even had the process been fair, Section 45(2)(a) requires the employer additionally to prove that the reason relied upon was valid, and Section 45(2)(b) that it was fair. It is here that the termination letter of 11th January 2022 falls to be scrutinised on its own terms, and it does not withstand scrutiny.
32. Read as a whole, the letter is capable of at least three different — and mutually inconsistent — characterisations of the reason for the Respondent's exit. It opens by stating that her "contract... has expired and will not be renewed" — language of non-renewal of a fixed term, which, as I have already found, is not in fact what had occurred, since no fixed term remained extant to expire on 11th January 2022. It then attributes the non-renewal to "your unwarranted absenteeism from duty among other reasons" — language sounding in misconduct. And it closes by casting itself as "a one-month notice" — language of a lawful, no-fault termination on notice. A letter cannot, without contradiction, simultaneously assert that a contract has expired of its own accord, that the employee's misconduct is the reason it was not renewed, and that a full month's contractual notice is being given. Each of these three characterisations carries a different legal consequence and would, in principle, call for a different procedural pathway; the letter picks none and gestures at all three.
33. The letter's internal contradiction does not stop there. It is dated, and was admittedly served on, 11th January 2022, yet it recites that it "serves as a one-month notice which will expire on 11th January 2022" — that is, on the very day it was issued. A notice that purports to run for one month but expires on the day it is given is not a notice at all; it is a contradiction reduced to writing. RW1's own explanation on this point — that the reference to "11th January" was "a typo" for which he says he "gave an amended document" — cannot rescue the letter, because no amended or corrected version was ever produced in evidence, at trial or on this appeal. This Court can only assess the document that exists, not one that a witness says once existed but which nobody has produced.
34. Testing each of the letter's three possible readings against the evidence actually adduced confirms that none of them discloses a valid and fair reason for termination. If the true reason was expiry of contract, that is simply incorrect on the facts I have found in Section F above: there was no fixed-term contract left to expire; the Respondent was, by 11th January 2022, serving under an indefinite, month-to-month contract of service, and "expiry" is not a concept that applies to such a contract at all.
[...truncated]
1. This is a first appeal from the judgment and decree of the Chief Magistrate's Court at Mombasa (Hon. D.O. Mbeja, Principal Magistrate) delivered on 16th November 2023 in Mombasa CMELRC Cause No. E435 of 2022, Sharifa Kassim Ismael v The Board of Management, Sheikh Zayed Children Welfare Centre. The trial court found that the Respondent's termination from employment was unfair and unlawful, and awarded her a global sum of Kshs. 473,600/=, together with costs and interest at court rates from the date of filing suit.
2. Before descending into the merits, it is necessary to point out the route by which this appeal came to be filed at all bears recording, because it explains the otherwise curious two-year gap between the delivery of judgment (November 2023) and the filing of the Memorandum of Appeal (2025), and because it disposes of any suggestion that the appeal is incompetent for want of leave or is time-barred. The record shows that the Appellant first lodged ELRC Appeal No. E005 of 2024, which was struck out for want of leave, the judgment below having been entered in default of appearance and therefore requiring leave to appeal out of time. The Appellant then sought such leave from the trial court itself, which application was dismissed for want of jurisdiction. The Appellant thereafter properly moved this Court by way of ELRCMISC/E008/2025, in which Hon. Lady Justice Monica Mbaru, by a ruling delivered on 27th March 2025, granted the Appellant fourteen (14) days within which to file and serve its intended appeal, and further granted a stay of execution of the decree conditional upon the deposit in court of the decretal sum of Kshs. 556,475/= on or before 10th April 2025. The present Memorandum of Appeal was filed pursuant to that leave.
B. The pleaded case and the evidence before the trial court
3. By a Memorandum of Claim dated 15th July 2022, the Respondent (then Claimant) pleaded that she was engaged by the Appellant as a madrassa teacher (Ustadha) on or about 8th May 2014, and that she worked continuously until 11th January 2022, when her services were terminated. She pleaded, and it is not disputed, that she held a succession of written, fixed-term contracts: an initial short engagement from 16th January 2014, followed by contracts running from 1st May 2014 to 30th April 2016, then 1st January 2017 to 31st December 2018, and finally 1st January 2019 to 31st December 2020. It is common ground on the face of the documents produced by both sides that no further written contract was issued after 31st December 2020, yet the Respondent continued to work, and continued to be paid her gross monthly salary of Kshs. 34,000/=, without interruption, well into the course of 2021 — a fact amply corroborated by the payslips for January through November 2021 contained in the Respondent's own documents and reproduced in the Record of Appeal.
4. The Appellant's own witness, its Director Mr. Abubakar Hassan Dindia (RW1), confirmed this in his witness statement: "In 2021, the Centre undertook restructuring and all contracts were vetted afresh by the Board... The vetting lasted the whole of 2021 during which the expired contracts were not renewed, including Claimant's." It is thus common cause, on the Appellant's own case, that between 1st January 2021 and 11th January 2022 the Respondent worked without any written contract, fixed-term or otherwise, and did so on exactly the same terms — same duties, same hours, same monthly wage — as she had under the expired written contract.
5. On or around 22nd December 2021, the Respondent travelled up-country over the school's third-term holiday, her husband having returned from abroad. The record contains a Swahili-language internal report from the Head of the Madrassa Department, Ustadh Suleiman Matata, to the Director, dated 8th January 2022, complaining that the Respondent had not returned to school in time for its reopening on 3rd January 2022 and remained absent as at the date of that report. It is not disputed that the Respondent in fact reported back to work on or about 10th–11th January 2022.
6. On 11th January 2022 the Respondent was called to the Director's office and handed a letter dated that same day, reference SZWC/2022/001/DIR/AHD, headed "RE: TERMINATION OF CONTRACT". I set out its operative part in full, because its wording is central to this appeal:
"Kindly note that your contract with the Centre as a madrassa teacher has expired and will not be renewed due to your unwarranted absenteeism from duty among other reasons. This letter therefore serves as a one-month notice which will expire on 11th January 2022 whereupon you will cease being a staff of Sheikh Zayed Children Welfare Centre. Kindly liaise with the Trustees of the Provident Fund to process your payment as soon as possible after clearing with all the relevant departments of the Centre."
7. It is common ground that this was the only letter of termination issued, and that no separate notice to show cause, and no separate letter inviting the Respondent to a disciplinary hearing, was ever produced in evidence. Indeed, on cross-examination RW1 conceded in terms: "The notice to show cause was not attached... The document is not part of the attachment." No witness for the Appellant asserted that any such document existed but was simply omitted from the trial bundle; the evidence is that none was ever issued.
8. The Appellant relied at trial, and relies again on appeal, on a document styled "Disciplinary Committee Report on Teachers' Conduct" dated 11th December 2021 (exhibit 26 on the Appellant's list of documents). I return to this document in detail below, since its proper characterisation is decisive of much of this appeal.
9. The Respondent testified as CW1 on 7th March 2023. She stated, among other things, that she began work on 16th January 2014 and worked until 11th January 2022; that her last written contract was for the period ending in 2020; that she was never issued with a warning letter; that she was never called to any disciplinary meeting; that she did not sign anywhere on the disciplinary minutes later produced by the Appellant; and that she had sought and been given permission by the deputy (the Mudeer) before she travelled. On cross-examination she maintained that she "was never called to a disciplinary meeting" and "did not sign anywhere."
10. RW1 testified on 29th May 2023, adopting his witness statement. Under cross-examination, he made a number of material concessions. He conceded that "the notice to show cause was not attached." He conceded that "the staff did not get the privilege of signing the report" — that is, that the disciplinary committee report was never signed by the Respondent or, it would appear, by any of the accused staff. He conceded that the termination letter itself contained "a typo", for which "I gave an amended document", though no such amended document was tendered at trial or is to be found anywhere in the Record of Appeal. He conceded that he had personally stamped and signed the letter of 11th January 2022 only on "10.1.2022" notwithstanding its face date. Significantly, the Appellant's second listed witness, Mr. Suleiman Bakari Matata — the Mudeer of Madrassa, and the one person whose first-hand account underlies almost every allegation levelled against the Respondent — was never called to testify. The Respondent closed her case on 7th March 2023; the Appellant, having earlier indicated it would call a second witness, closed its own case after RW1 alone on 29th May 2023.
C. The trial court's judgment
11. The trial court, having reviewed the pleadings and evidence, correctly directed itself to Sections 43(1) and 45(2) of the Employment Act, 2007, and to the authority of Alphonce Machanga Mwachanya v Operational 680 Ltd [2013] eKLR on the requirements of Section 41, and of Kenfreight (E.A.) Limited v Benson K. Nguti on the burden of proof in termination disputes. I pause to note, for accuracy, that the trial court attributed the Kenfreight holding to "the Supreme Court" in a "2019" decision; the correct citation, as appears from the very authorities relied upon by both parties to this appeal, is Kenfreight (E.A.) Limited v Benson K. Nguti [2016] eKLR, a decision of the Court of Appeal sitting at Malindi. Nothing turns on the misattribution for present purposes, since the proposition of law extracted by the trial court is sound and is not disputed by either party, but I record the correction so that the point is not repeated.
12. The trial court's central and, in my view, entirely justified finding was this: "The process leading to the claimant's termination in the opinion of the court was unfair as the claimant was not subjected to a fair disciplinary hearing and invited to show cause why her contract of employment should be terminated." On that basis, the trial court held that the Respondent had established, on a balance of probabilities, a case of wrongful, unfair and unlawful termination, and proceeded to make the following award: "the claimant is entitled to reliefs sought in the Memorandum of Claim in the sum of Kshs. 473,600 all circumstances considered", together with costs and interest at court rates from the date of filing suit.
13. It is immediately apparent, and this is a matter to which I return at length below, that the trial court's award of Kshs. 473,600/= is not the sum of the reliefs pleaded — the Memorandum of Claim and the decree extracted from the judgment together particularise a claim of Kshs. 34,000/= for notice pay, Kshs. 116,600/= for leave allowance, Kshs. 119,000/= for service pay and Kshs. 408,000/= for compensation, totalling Kshs. 677,600/=. The judgment does not explain how the figure of Kshs. 473,600/= was arrived at, which of the four heads of claim were allowed in full, which in part, and which (if any) were declined altogether. I shall analyse the significance of this omission in its own section below.
D. Grounds of appeal
14. The Memorandum of Appeal raises, in substance, five grounds: (i) that the trial court erred in law and fact in finding that the termination was unfair and unlawful; (ii) that it erred in holding the Appellant liable for unfair termination; (iii) that it erred in awarding terminal dues which the Respondent had failed to prove; (iv) that it erred in failing to evaluate the evidence on record, arriving at a wrong conclusion; and (v) that it erred in taking into account irrelevant material.
E. The jurisdiction and duty of a first appellate court
15. This being a first appeal, this Court sits, in effect, as a court of both fact and law. It is trite, and I need only restate rather than elaborately justify, the principle settled in Selle v Associated Motor Boat Co Ltd [1968] EA 123 and Peters v Sunday Post Ltd [1958] EA 424, and restated by the Court of Appeal in Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR, that a first appellate court has both the jurisdiction and the duty to re-evaluate, re-assess and re-analyse the evidence on the record and to reach its own independent conclusions of both fact and law, giving due allowance for the fact that it has not seen or heard the witnesses testify and according the trial court's findings on credibility the deference that entails. This duty is not discharged by a mechanical repetition of the trial court's reasoning, nor by treating the trial court's ultimate figure as a given to be tinkered with at the margins; it requires this Court to go back to the primary evidence itself.
16. It is precisely because I have undertaken that exercise that I am able to say, with respect to the trial court, that while its ultimate finding of unfair termination was correct, several of the submissions advanced before it — and repeated with even greater elaboration on this appeal — ventured well beyond what a proper application of Sections 41, 43, 45 and 47(5) of the Employment Act required it to decide, and that a more exacting analysis of the documents actually produced, in particular the disciplinary committee report and the termination letter, yields a rather different — and more securely founded — route to the same ultimate conclusion.
ANALYSIS AND DETERMINATION
F. Issue One — the character of the employment relationship after 31st December 2020, and why it matters
17. I begin here because much of the Appellant's submission proceeds, whether consciously or not, on the unspoken premise that the Respondent's rights and the Appellant's obligations at the moment of termination are to be measured against the terms of the last written contract — the one that expired on 31st December 2020 — as though that instrument, though dead, continued in some ghostly way to define the relationship a full year later. That premise is wrong, and its correction reorders the entire analysis that follows.
18. It is not in dispute that the Respondent continued, from 1st January 2021 until 11th January 2022, to render exactly the same services, for exactly the same monthly wage of Kshs. 34,000/=, on exactly the same working hours, as she had under the expired written contract. Section 35(1) of the Employment Act, 2007 provides, in material part, that a contract of service not being a contract to perform specific work shall, where wages are paid or payable monthly, "be deemed to be... a contract terminable by either party at the end of the period of twenty-eight days next following the giving of notice in writing". This is precisely the default rule the statute supplies for an employment relationship that subsists — as this one plainly did — without any express written term governing notice. Once the written fixed-term contract lapsed on 31st December 2020 and was not renewed in writing, but the parties nonetheless continued to perform under it in substance, the relationship that arose by conduct from 1st January 2021 onward was not a continuation of the fixed term (which had, by then, definitively ended) but a fresh contract of service for an unspecified period, terminable, by operation of Section 35(1)(c), on notice referable to the monthly pay cycle — in other words, precisely the "month-to-month character" that this Court has been urged to recognise.
19. This is not a mere semantic distinction; it carries real legal consequences, and it is the first respect in which the trial court's undifferentiated approach to the record requires correction. An employer cannot, by the simple expedient of declining to reduce a continuing relationship to writing, insulate itself from the protections Parliament has built into the Act for employees on contracts of unspecified duration. Nor can an employee's earlier years of service under successive fixed terms be imported wholesale, for every purpose, into the assessment of what is owed to her in respect of the final, unwritten chapter of that service — a point of real significance, as will be seen, to the quantification of leave allowance and compensation below. The two periods — service under the written, fixed-term contracts (8th May 2014 to 31st December 2020), and service under the unwritten, indefinite, month-to-month contract that followed (1st January 2021 to 11th January 2022) — must be kept analytically distinct, because different legal consequences attach to the ending of each.
20. The first consequence, and the one most immediately relevant, is that the full panoply of procedural and substantive fairness safeguards in Sections 41, 43, 45 and 47(5) of the Employment Act applied to the termination of the Respondent's employment on 11th January 2022 with undiminished force — indeed, arguably with greater force than they would have applied to the mere non-renewal of a fixed term that had run its course on its own appointed date. Had the Respondent's last written contract still been subsisting on 11th January 2022 and simply expired of its own accord, the Appellant might have had room to argue, as fixed-term jurisprudence in this country generally recognises, that expiry by effluxion of time is not, without more, a "termination" attracting the full procedural apparatus of Section 41. But that is not this case. By 11th January 2022 there was no fixed term left to expire. There was only an ongoing, unwritten, indefinite contract of service, and what the Appellant did on that day was terminate it. A termination of an indefinite contract of service, on whatever stated ground, is termination full stop, and it is common ground — indeed it is the Appellant's own pleaded defence at trial (Statement of Defence, paragraph 5(vi)) — that this is precisely how the Appellant itself characterised its own act: "the Respondent declined to renew the Contract based on the Disciplinary Committee Report and therefore issued the Claimant with one month notice of termination of her Contract." One cannot in the same breath issue a notice of termination and disclaim the legal consequences of having terminated.
21. It follows, and I so hold, that the trial court was correct to treat this as a termination attracting the full protective machinery of Sections 41, 43, 45 and 47(5), and any suggestion to the contrary advanced in this appeal — that the Respondent's absence of a written contract somehow diminished the fairness safeguards otherwise due to her — must fail. If anything, an employer who keeps an employee working indefinitely, without troubling to reduce the relationship to writing, cannot be heard to complain when the ordinary statutory notice and fairness architecture, rather than some bespoke contractual regime, comes to govern the parting of ways.
G. Issue Two — was the process leading to termination fair?
22. Section 41 of the Employment Act provides that an employer shall, before terminating an employee's services on grounds of misconduct, poor performance or physical incapacity, "explain to the employee, in a language the employee understands, the reason for which the employer is considering termination" and, further, allow the employee a representative of her choosing to be present during that explanation, and hear and consider any explanation given. Section 43(1) places the burden of proving the reason for termination squarely on the employer, on pain of the termination being "deemed to have been unfair". Section 45(2) provides that a termination is unfair unless the employer proves that the reason for it was valid, that it was fair, and that the employment was terminated in accordance with fair procedure. Section 47(5) allocates the burden thus: the employee need only assert that an unfair termination has occurred; it is for the employer to justify the grounds relied upon. As the Court of Appeal put it in Kenfreight (E.A.) Limited v Benson K. Nguti [2016] eKLR, in a passage the trial court itself (albeit under a mistaken citation) correctly extracted and applied: "it is considered unfair to terminate a contract of service if the employer fails to demonstrate that the reason for the termination is valid and fair... That the employer must also prove that the termination was in accordance with fair procedure and that the burden on the employee is only limited to asserting that an unfair termination has occurred."
23. The Appellant's answer to this burden, at trial and on appeal, is the Disciplinary Committee Report dated 11th December 2021. It is upon this single document that the entire edifice of the Appellant's defence to the unfair-termination claim rests. It therefore repays the closest possible scrutiny — and the user's direction that this Court "critically examine" the minutes and "conclude" is, in my respectful view, entirely warranted by what a close reading of the document actually discloses.
24. Four features of that report, taken together, persuade me that it cannot, and does not, discharge the Appellant's burden under Sections 41, 43 and 45.
25. First, the report is not, and does not purport to be, a hearing convened for the Respondent. It records a general disciplinary sweep held on 11th December 2021, at which the Committee dealt with ten different members of staff for entirely unrelated allegations — teachers borrowing money from pupils, teachers cheating in national examinations, a teacher losing examination scripts, teachers arriving late for a graduation ceremony. The Respondent's name appears as item 4 on a list of ten, accused of "insubordination, late coming and unwarranted absenteeism from duty". Nothing in the document's structure suggests it was convened to hear her case specifically, still less that the process afforded her the individualised attention Section 41 contemplates.
26. Second — and this is the most telling feature of all — a careful, clause-by-clause comparison of how the report deals with the Respondent against how it deals with every other member of staff named in it reveals a stark and, I think, decisive asymmetry. In respect of Mr. Suleiman Odundo, accused of losing examination scripts, the report states in terms: "He was summoned before the disciplinary committee and he gave the following reasons for his action" — followed by four numbered points in his own voice. In respect of the teachers accused of cheating in examinations, the report records: "When summoned, they confessed doing that in order to beat the deadline..." In respect of Md. Maimuna Mohammed, accused of altering examination results, the report records that "she denied everything telling Md. Fatma that she is accusing her falsely" and that she offered an explanation for her conduct. In every one of these instances the report affirmatively records the accused member of staff's own appearance, and her or his own words, before the Committee. By stark contrast, the entry against the Respondent records only this: "The Mudeer of Madrassa, Ustadh Suleiman Matata revealed that ustadha Sherifa is an incorrigible late comer... He referred to an incident on 4/08/2021... He asked her to respect school policies and procedures. She nonchalantly promised to turn over a new leaf." Every sentence in that passage is attributed to the Mudeer — what he "revealed," what he "referred to," what he "asked." There is no sentence recording that the Respondent appeared before the Committee on 11th December 2021, was informed of the specific allegations, or was invited then and there to respond to the Committee itself. The passage reads, on a fair construction, as the Mudeer's own second-hand narration to the Committee of a private conversation he says he once had with her — not as a record of her having been heard by the body that was supposedly disciplining her. A document that meticulously distinguishes, for nine of the ten persons it addresses, between an allegation and that person's own recorded response to it, but which for the tenth person — the Respondent — records only the accuser's narrative and never the accused's own voice, cannot be read as evidence that the tenth person was given the hearing the other nine plainly were.
27. Third, the report's own recommendations confirm that, as of 11th December 2021, no final disciplinary sanction had been visited upon the Respondent at all. The Committee recommended, prospectively, that "Md. Maimuna & Sheriffa should get warning letters in order to curb their late-coming and absconding duties" and that "This Discipline Committee Report should be used as a reference for renewal of contracts." Both recommendations are framed in the future tense, as things yet to be done or to be borne in mind for a later decision — not as a record of a hearing that had already concluded with a finding against her, still less as a decision to terminate.
28. Fourth, and perhaps most fundamentally, the report is dated 11th December 2021 — weeks before the very conduct relied upon in the termination letter itself occurred. The termination letter of 11th January 2022 cites "unwarranted absenteeism from duty" as the operative reason. The absence in question — the Respondent's failure to report for the reopening of the third term on 3rd January 2022, following her upcountry travel from around 22nd December 2021 — post-dates the disciplinary committee meeting by between three and five weeks. A disciplinary committee cannot, by any stretch of logic or law, have heard, considered and made findings on 11th December 2021 about an absence that had not yet happened. Whatever the report says about the Respondent's historical late-coming, it says nothing, and could say nothing, about the very absenteeism the Appellant ultimately relied upon to terminate her. To the extent the Appellant's defence conflates the two — treating the 11th December report as if it were also a hearing into the January 2022 absence — that conflation is simply untenable on the dates the Appellant's own documents disclose.
29. To these four textual and chronological infirmities must be added two evidential ones. The report bears no signature of the Respondent, a fact RW1 himself conceded under cross-examination ("the staff did not get the privilege of signing the report"). And the one witness whose personal knowledge underlies every allegation against the Respondent recorded in the report — Ustadh Suleiman Bakari Matata, the Mudeer — was listed as the Appellant's second witness but was never called to testify, meaning his account was never subjected to cross-examination and was never tested by the trial court at all; it survives only as hearsay recounted within a document, and repeated at one further remove by RW1, who candidly limited his own evidence to what "the report" said rather than what he personally witnessed.
30. For all of these reasons I conclude, agreeing with the submission pressed upon me on this point, that the minutes tendered by the Appellant cannot come to the aid of its defence. They do not establish that the Respondent was ever explained the reason for her impending termination in a language she understood, as Section 41 requires; they do not establish that she was afforded, or even offered, a representative to be present; they do not establish that any explanation from her was heard or considered; and no separate notice to show cause or invitation to a disciplinary hearing was ever issued to her at all — a point the Appellant's own witness effectively conceded. This finding is entirely consistent with, and indeed reinforces, the persuasive authority of Hosea Akunga Ombwori v Bidco Oil Refineries Limited [2017] eKLR, where the Employment and Labour Relations Court held that to satisfy Section 41 "an employer issues what is called in ordinary parlance a show cause notice/letter [which] should outline the allegations or charges against the employee and also request him/her to respond within a reasonable time [and] ought to inform the employee that disciplinary action which might lead to termination of employment is under consideration" — and with Duncan Mbarire v Nairobi Aviation College Limited [2016] eKLR, where the court observed, in a passage I gratefully adopt, that "it does not matter what offence the employee is accused of. If the employee is not heard, the termination is ipso facto unfair."
H. Issue Three — was there a valid and fair reason for termination? The ambiguity of the termination letter
31. Even had the process been fair, Section 45(2)(a) requires the employer additionally to prove that the reason relied upon was valid, and Section 45(2)(b) that it was fair. It is here that the termination letter of 11th January 2022 falls to be scrutinised on its own terms, and it does not withstand scrutiny.
32. Read as a whole, the letter is capable of at least three different — and mutually inconsistent — characterisations of the reason for the Respondent's exit. It opens by stating that her "contract... has expired and will not be renewed" — language of non-renewal of a fixed term, which, as I have already found, is not in fact what had occurred, since no fixed term remained extant to expire on 11th January 2022. It then attributes the non-renewal to "your unwarranted absenteeism from duty among other reasons" — language sounding in misconduct. And it closes by casting itself as "a one-month notice" — language of a lawful, no-fault termination on notice. A letter cannot, without contradiction, simultaneously assert that a contract has expired of its own accord, that the employee's misconduct is the reason it was not renewed, and that a full month's contractual notice is being given. Each of these three characterisations carries a different legal consequence and would, in principle, call for a different procedural pathway; the letter picks none and gestures at all three.
33. The letter's internal contradiction does not stop there. It is dated, and was admittedly served on, 11th January 2022, yet it recites that it "serves as a one-month notice which will expire on 11th January 2022" — that is, on the very day it was issued. A notice that purports to run for one month but expires on the day it is given is not a notice at all; it is a contradiction reduced to writing. RW1's own explanation on this point — that the reference to "11th January" was "a typo" for which he says he "gave an amended document" — cannot rescue the letter, because no amended or corrected version was ever produced in evidence, at trial or on this appeal. This Court can only assess the document that exists, not one that a witness says once existed but which nobody has produced.
34. Testing each of the letter's three possible readings against the evidence actually adduced confirms that none of them discloses a valid and fair reason for termination. If the true reason was expiry of contract, that is simply incorrect on the facts I have found in Section F above: there was no fixed-term contract left to expire; the Respondent was, by 11th January 2022, serving under an indefinite, month-to-month contract of service, and "expiry" is not a concept that applies to such a contract at all.
[...truncated]