Ambayi v Mini Bakeries (Nairobi) Ltd (Appeal E011 of 2025) [2026] KEELRC 226 (KLR) (29 January 2026) (Judgment)

Ambayi v Mini Bakeries (Nairobi) Ltd (Appeal E011 of 2025) [2026] KEELRC 226 (KLR) (29 January 2026) (Judgment) Neutral citation: [2026] KEELRC 226 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kisumu Appeal E011 of 2025 JK Gakeri, J January 29, 2026 Between Erick Omollo Ambayi Appellant and Mini Bakeries (Nairobi) Ltd Respondent Judgment 1.Being dissatisfied with the Judgment of Hon. Gloria Barasah, S.R.M in Kisumu CMELRC NO. E264 of 2021 in Erick Omollo Ambayi V Mini Bakeries (Nairobi) Ltd delivered on 27th February 2025, the appellant filed the instant appeal on 6th March 2025 vide a Memorandum of Appeal dated 5th March 2025 faulting the trial court on various grounds. 2.The appellant’s case before the trial court was that he was employed by the respondent as a Painter in 2013, initially on casual basis at Kshs.500 per day which had risen to Kshs.960.00 as at the time of termination of employment in September 2021. 3.The appellant’s case was that his employment was unfairly terminated by one, Mr. Dickson Otieno Ndege on 6th September 2021, by word of mouth. 4.He alleged that he was involved in itinerant routine service in the respondent’s branches at Kisumu, Akyida Webuye, Kitale, Kakamega, Busia and Kisii among other towns and prayed for underpayment, house allowance, terminal benefits, transfer and disturbance allowance, leave, travelling allowance, one packet of milk per day, bar soap, notice pay, long service award, compensation for unlawful termination of employment, provident fund contributions, certificate of service, costs and interest. 5.The respondent’s case was that the appellant was its employee but opted out of employment without notice and was thus not entitled to compensation or notice pay. 6.It denied owing the appellant anything and sought dismissal of the suit with costs. 7.After considering the respective cases as presented by the parties, evidence before the court and submissions by counsel, the learned trial magistrate held that termination of the appellant’s employment was unfair and awarded 3 months salary as compensation, severance pay, service pay, long service award costs at Kshs.60,000.00 of the suit and interest from date of filing the suit. 8.According to the appellant the trial court erred on eight (8) circumstances by failing to find that the appellant was entitled to underpayment and underpaid salary arrears, and the claim rose from termination of employment. That the trail court failed to consider the totality of the appellant’s case, the evidence in support and failed to award house allowance, leave pay, leave travelling allowance, transfer and disturbance allowance, transport and provident fund contributions. 9.The trial court was also faulted for having failed to award salary in lieu of notice, less service pay and inordinately low compensation. 10.Finally, the trial court was faulted for awarding costs at Kshs.60,000.00. Appellant’s submissions 11.Counsel isolated no specific issues to address but submitted on the provisions of Section 37 of the Employment on conversion of casual employment to term and entitlement to benefits, to submit that the appellant was a de facto permanent employee. 12.On underpayment, counsel cited the decisions in Matsyi V Solo [2025] KEELRC 862 (KLR) and Arisa V Kipkebe [2024] KEELRC 1232 (KLR) to submit that the appellant was entitled to the difference between the amount paid and the minimum wage payable to him including housing allowance at 15% of the basic salary. 13.On leave travelling allowance, counsel cited the Collective Bargaining Agreement (CBA) between the union and the respondent to submit that the appellant was entitled to annual leave citing the decisions in Kamtix Clearners V Odhiambo [2025] KEELRC 2475 (KLR), Transglobal Cargo Center t/a Africa Flights Services V Njeru [2025] KEELRC 3209 (KLR) and Sgs Security Guards Ltd V Chepkemoi [2025] KEELRC 1362 (KLR) to reinforce the submission on the duty of the employer to maintain employment records. 14.On transfer and disturbance allowance of Kshs.7,500 counsel relied on the CBA. 15.On provident fund contributions, counsel relied on the provisions of the CBA and the decision in Kenyatta University V Maina [2022] eKLR and Halar Industries Ltd V Muia, to urge that the appellant was entitled to Kshs.78,393.99. 16.Finally, counsel submitted that the appellant was entitled to notice pay and bar of soap. 17.Strangely, counsel cited the figure of Kshs.939,195.89. The Memorandum of Claim had no specific figure and a demand letter dated 2nd October 2021 had a figure of Kshs.2,006,469.62The respondent did not file submissions. Analysis and determination 18.This being a first appeal, the mandate of the court is as was enunciated in Selle and another V Associated Motor Boat Co. Ltd & others [1968] EA 123, Peters V Sunday Post Ltd [1958] EA 424 and Gitobu Imanyara V Attorney General & Others [2016] eKLR among others, which is to reconsider the evidence and evaluate it and make its own conclusions bearing in mind that it has neither seen nor heard the witness and thus make due allowance in that respect. 19.Although the learned trial magistrate was faulted on eight (8) grounds the same may be condensed into three (3) namely; failure to consider the totality of the appellant’s evidence, awards made and entitlements and assessment of costs at Kshs.60,000.00 20.As to whether the learned trial magistrate failed to consider the totality of the appellant’s evidence in support of his case, the first port of call for this court is the appellant’s witness statement dated 23rd November 2021 whose contents in the court’s view, fell below the threshold of a witness statement. 21.The statement, which the claimant adopted as his evidence in chief on 22nd January 2024 lacked basic particulars of the appellant’s employment by the respondent. 22.It had no date of employment, position held, nature of work, place of work, wage or salary and how it was paid, terms of engagement or circumstances in which employment was terminated and the resultant claims. 23.However, the absence of specific evidence was somewhat ameliorated by the respondent’s admission of some of the allegations including the separation in September 2021 and transporting the appellant to the site from 1st May 2017 to 30th April 2020 and throughout his employment and the scanty documentary evidence. 24.The appellant provided copies of barely legible payment records of the respondent’s casuals for 2018. 25.He also filed the contentious duty rota for painters dated 3rd September 2021, minutes of a meeting between painters and the respondent’s Foreman, Shop Steward and Union Secretary at which some resolutions on reporting time, respect and cleanliness among others were deliberated upon and a copy of the CBA for the period 2017 to 2020. 26.As regards the date of employment, the appellant adduced no credible evidence of having been employed in February 2013. However, DWI Mr. Gabriel Odoyo testified that he had worked with them since 2014 which would suggest that the appellant may have been an employee then. 27.Concerning the employment status of the appellant, although he was originally engaged on casual basis RWI confirmed on cross-examination, that the appellant was subsequently appointed on permanent and pensionable terms. 28.Significantly, the admission of RWI notwithstanding, it is discernible that the appellant had met the threshold of the provisions Section 37 of the [Employment Act](/akn/ke/act/2007/11) and had transited from casual employment to a term contract, and thus entitled to a term and conditions of service under the [Employment Act](/akn/ke/act/2007/11). 29.This, however, did not translate to entitlement to the reliefs prayed for which required proof, which is a mandatory requirement for special damages. 30.See in this regard Hahn V Singh [1985] KLR 716, Nimo Ali V Sagoo Radiators Ltd [2013] KECA 163 (KLR), Securicor Ltd V Esther Oliech [1996] KECA 89 (KLR). These decisions are emphatic that special damages must be specifically pleaded and strictly proved. 31.During the hearing it emerged that a disagreement appear to have arisen after the respondent changed the duty rota in September 2021 and the although the separation took place on 6th September 2021, it is unclear as to how it took place. 32.Finally, the learned trial magistrate considered the evidence adduced by both parties sufficiently and captured a large portion of it in the judgment. 33.In the court’s view, the learned trial magistrate cannot be faulted for having failed to consider the totality of the appellant’s evidence on record. 34.As to whether termination of the appellant’s employment was unfair, the trial court found that it was unfair but was faulted for failure to award salary in lieu of notice, unpaid salaries and inordinately low award for the unlawful termination of employment. 35.Concerning termination, it is trite law that for a termination of employment to pass the fairness test it must be proved that the employer had a substantive justification to terminate the employee’s employment and conducted the termination in accordance with a fair procedure. 36.Put in alternative terms, it must be demonstrated that the provisions of Section 41, 43, 44, 45 and 47(5) of the [Employment Act](/akn/ke/act/2007/11) as regards there having been a valid and fair reason for the termination and procedural fairness were complied with as held in Naima Khamis V Oxford University Press (EA) Ltd [2017] KECA 480 (KLR) where the Court of Appeal stated.“…From the foregoing termination of employment may be substantively and/or procedurally unfair. A termination is also deemed substantively unfair where the employer fails to give valid reasons to support the termination. On the other hand, procedurally unfairness arises where the employer fails to follow the laid down procedure as per the contract, or fails to accord the employee an opportunity to be heard as by law required”. 37.See also Pius Machafu Isindu V Lavington Security Guards Ltd [2017] eKLR and Walter Ogal Anuro V Teachers Service Commission [2013] eKLR. 38.In the instant case while the appellant contended that his employment was unlawfully terminated by the respondent’s supervisor, one Dickson Otieno Ndege on 6th September 2021. 39.Regrettably, the appellant tendered no scintilla of evidence as to how the separation took place and what followed thereafter including following up on dues with the employer because the supervisor was not. 40.The respondent on the other hand pleaded and testified that the appellant deserted the work place on 6th September 2021 and never returned, an allegation the appellant did not controvert. 41.The learned trial magistrate relied on the decisions in Nzioka V Smart Coatings Ltd [2017] eKLR and Bonface Francis Mwangi BOM Iyego Secondary School [2019] eKLR to hold that the respondent failed to prove that it attempted to reach out to the appellant to resume duty. 42.Having alleged that the appellant deserted duty it was incumbent upon the respondent to prove desertion.Black’s Law Dictionary, 10th Edition defines desertion as:“Wilful and unjustified abandonment of a person’s duties or obligations”. 43.It is a serious administrative offence and if it is proved to have occurred could lead to disciplinary action, including dismissal from employment.See also Seabolo V Belgravia Hotel [1997] 6 BLLR 829 (CCMA). 44.It is trite law that whenever and employer relies on the defence of desertion or absconding of duty, the employer is required to show the reasonable steps it took to contact the employee to resume duty or notify him or her that disciplinary action was being contemplated for their absence and may thereafter proceed to terminate the deserting or absconding employee if he or she does not show cause or respond at all. 45.The foregoing is fortified by the decision in Felistas Acheha Ikatw V Charles Peter Otieno [2018] eKLR where Maureen Onyango J. held:“The law is therefore well settled that an employer claiming that an employee has deserted duty must demonstrate the efforts made towards getting the employee to resume duty. At the very least, the employer is expected to issue a notice to the deserting employee that termination of employment on the ground of desertion is being considered”.See also Simon Mbithe Mbane V Inter Security Services Ltd [2018] eKLR and Joseph Nzioka V Smart Coatings Ltd [2017] eKLR. 46.Even in circumstances in which an employee is alleged to have deserted duty, the employer is still required to prove that the separation process was fair. 47.In Judith Atieno Owuor V Sameer Agriculture and Livestock Ltd Maureen Onyango J held“Further even if she had absconded, she is by law entitled to a fair disciplinary process as set out in Section 41 of the [Employment Act](/akn/ke/act/2007/11) 2007\. No evidence was availed to the court to support there having been a disciplinary process or notice issued prior to the termination. It is the duty of the respondent to show this court it did accord the claimant fair hearing prior to her termination” 48.In the instant case although RWIII testified that the appellant left on 6th September and did not report on 7th September 2021, he availed no evidence of the steps the respondent took to ensure that the appellant resumed duty or notify him that disciplinary action was being considered on account of desertion of duty. 49.In a similar vein, although RWI testified that he attended a disciplinary meeting on 14th September 2021, he adduced no evidence to demonstrate that the appellant was invited for the meeting and was aware of the charges against him and a copy of minutes of the alleged meetings were not filed. 50.In the court’s view, the respondent failed to prove that the provisions of Section 41 of the [Employment Act](/akn/ke/act/2007/11) were complied with and the trial court cannot be faulted for having found that termination of the appellant’s employment was unfair. 51.The trial court was also faulted for failing to award house allowance, leave pay, leave travelling allowance and transfer and disturbance allowance. 52.As regards housing allowance, the employer is bound to provide housing to the employee or pay house allowance to enable the employee procure reasonable accommodation. However, where wages are paid on a daily basis, the amount paid is inclusive of house allowance. 53.In 2013, the appellant’s daily wage was Kshs.500 compared to the minimum wage of Kshs.203 per day. 54.Assuming that the appellant was working on workdays only his monthly salary was about Kshs.12,500.00 which was higher than the consolidated salary of driver over day watchman who typically earn more than a painter. 55.Notably, the appellant did not avail a copy of his staff identify card but documents on record reveal that he was employed as a painter and not as an artisan as alleged, a claim the appellant did not support by any credible evidence and had pleaded that he was indeed a Painter. By the time his employment was terminated in September 2021, his wage was Kshs.960 per day which translated to about Kshs.24,000 per month. 56.The appellant adduced no evidence to prove that his monthly salary was less than the minimum wage payable to a Painter from May 2013 to 1st May 2015 or from 1st May 2013 or 1st May 2018 to September 2021, when his wage was Kshs.960.00The claim was patently unmerited. 57.As regards leave pay, leave travelling allowance and transfer and disturbance allowance, the appellant adduced no shred of evidence to show that any of these allowances was not paid and when and how much was unpaid. 58.The written witness statement dated 22nd November 2021 made no reference to any of these allowance nor the requisite particulars. 59.The appellant tendered no evidence of when he did not proceed on leave or was not paid leave allowance or was transferred and was not paid transfer disturbance. 60.In sum, the trial court did not err for having declined to award the allowances. They were not proved.Significantly, the claiming of multiple reliefs is discouraged. 61.In Pandya Memorial Hospital V Geela Joshi [2020] eKLR, the Court of Appeal cited the sentiments of Rika J. in GMV V Bank of Africa Ltd (supra) that:“This court does not encourage employees to claim multiple remedies arising from the same wrong doing on the part of the employer, whether these violations are claimed to infringe [the constitution](/akn/ke/act/2010/constitution), the statute or the contract”. 62.As regards service pay, the appellant tendered no evidence to show that he was not a member of the National Social Security Fund (NSSF) or that deductions were neither being made nor remitted to the NSSF. 63.It is trite law that service pay is only awarded to employees who are not members of the NSSF or any other pension scheme or provident fund. 64.The appellant tendered no evidence to justify an ward of service pay and the trial court did not provide a justification for the ward. It was unmerited as it ws not proved. 65.On severance pay, it is common ground that the appellant neither alleged nor evidentiary proved that he was declared redundant. His case was and remained that of unfair termination of employment by the respondent. 66.Severance pay is only payable in cases of redundancy under Section 40(1)(g) of the [Employment Act](/akn/ke/act/2007/11).The award of Kshs.97,920.00 was unmerited. 67.Concerning underpayment, appellant alleged that his monthly salary was Kshs.14,785.70 under the 2015 Regulation of Wages (Amendment) Order yet that was not the salary of a Painter as it was the basic salary of a car or van driver, shop assistant, printing machine operator, bakery machine operator, dough maker machine tool operator and saw mill dresser among others. 68.Assuming that the appellant worked for 6 days a week 2013, his gross salary was Kshs.12,500.00. The consolidated monthly salary of the highest paid semi-skilled employee, a lorry or car driver was Kshs.7,113 and in 2015 it was kshs.7,966.00 and when the wage rose toKshs.960 per day, his salary was Kshs.24,000.00 higher than the consolidated salary of a tractor driver, salesman or Dryer. 69.It is trite law that minimum wage is a prescription of the law and all employers are bound to observe the minimum wage as decreed by the Cabinet Secretary for Labour failing which they commit an offence. 70.The appellant’s witness statement made no reference to his salary per month nor allege that there was any underpayment and by how much? 71.The meticulous computations in the Memorandum of Claim were averments that required supportive evidence and none was provided. 72.The appellant did not explain how he was being paid and when. 73.The prayer for underpayment and unpaid salary arrears was not proved and was unmerited. 74.The appellant failed to demonstrate that the trial court erred in this instance. 75.On compensation, having found that termination of the appellant’s employment by the respondent was unfair the appellant qualified for compensation under Section 49(1)(c) of the [Employment Act](/akn/ke/act/2007/11). 76.In determining the quantum of compensation, the learned trial magistrate considered the length of service, age, likelihood of securing alternative employment and mitigation of loss. Other than age, the other factors the court considered were relevant as were his wishes, which were never expressed and his contributions to the termination of employment, if any.The equivalent of three (3) month’s gross salary was fair. 77.Having considered some of the relevant factors under Section 49(4) of the [Employment Act](/akn/ke/act/2007/11), the trial court cannot be faulted for having exercised its judicial discretion in the manner it did and as explained in D. K. Njagi Marete V Teachers Service Commission [2020] KECA 840 (KLR), the purpose of an award of compensation to the wronged party is to offset the final loss occasioned by the wrongful act. 78.In other words, the purpose of compensation is to make good the wronged party’s loss and not to punish the employer.See Hema Hospital V Wilson Makongo Marwa [2015] eKLR. 79.In the end, the court is not persuaded that the appellant has made any case for disturbing the award made by the trial court. 80.Having failed to show that the appellant deserted the workplace, the appellant is entitled to salary in lieu of notice Kshs.48,708.00. 81.The appellant was entitled to the long service award as per the terms of Clause 40 of the CBA, Kshs.9,600.00. 82.The appellant was entitled to a bar of soap and a packet of milk per day as provided by the CBA for 3 years only, Kshs.5,400.00 and Kshs.54,000.00 respectively. 83.Equally, the appellant was entitled to terminal benefits as per the CBA Kshs.118,637.30 84.Finally, the award of costs is discretionary and the court is enjoined to do so judicially. 85.In Rai & 3 others V Rai & 4 others [2014] KESC 31 (KLR) the Supreme Court of Kenya stated:“Although there is eminent good sense in the basic rule of costs that costs follow the event it is not an invariable rule and, indeed the ultimate factor on award or non-award of costs is the judicial discretion. It follows therefore, that costs, do not in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this court in other cases…” 86.Under Section 12(4) of the [Employment and Labour Relations Court Act](/akn/ke/act/2011/20),(4)In Proceedings under this Act, the court may subject to the Rules, make such Orders as to costs as the court considers just.Similarly, under Rule 70 of the Employment and Labour Relations Court (Procedure) Rules 2024.1.The Court shall be guide by Section 12(4) of the Act and the Advocates (Remuneration) Order (sub-leg) in awarding costs. 87.It requires no belabouring that the trial court had unfettered discretion to award or not to award costs but assessed and awarded costs at Kshs.60,000.00 88.While the award of costs involved the exercise of discretion, the learned trial magistrate did note explain the circumstances the court took into consideration in determining the quantum of costs, which in ordinary circumstances involves many parameters under the Advocates Remuneration Order. 89.The court is thus satisfied that the appellant has demonstrated the need to disturb the award of costs by the learned trial magistrate by setting aside the sum of Kshs.60,000.00. 90.The foregoing analysis leaves no doubt that the appellant has demonstrated that the court may justifiably interfere with the exercise of discretion by the trial court in accordance with the principles enunciated in Price and another V Hilder [1986] KLR and more elaborately captured by Madan JA (as he then was) in his rendition in United Insurance Co. Ltd and another V East African Underwriters (Kenya) Ltd [1985] eKLR.See also Mbogo & another V Shah [1968] EA 93 and Mrao Ltd First American Bank of Kenya Ltd & 2 others [2003 ] KLR 125. 91.In conclusion the appellant’s appeal nominally succeeds and the Judgment of the of the trial court is interfered with to the extent that:a.The award of Kshs.60,000.00 as costs is set aside.b.The award of service pay is set aside.c.The award of severance pay is set aside.d.Salary in lieu of notice Kshs.48,708.00.e.Terminal dues Kshs.118,637.30f.Bar soap Kshs.5,400.00g.Packet of milk Kshs.54,000.00 92.Other awards by the trial court are affirmed save that interest shall run from date of judgment as opposed to date of filing the suit. 93.Parties shall bear their own costs of the appeal. **DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU ON THIS 29 TH DAY OF JANUARY 2026.****DR. JACOB GAKERI****JUDGE****ORDER** In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of [the Constitution](/akn/ke/act/2010/constitution) which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of [the Constitution](/akn/ke/act/2010/constitution) and the provisions of Section 1B of the [Civil Procedure Act](/akn/ke/act/1924/3) (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.**DR. JACOB GAKERI****JUDGE**