Keverenge v Leather Lee Limited (Civil Appeal E279 of 2024) [2026] KEELRC 185 (KLR) (28 January 2026) (Judgment)

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI CIVIL APPEAL E279 OF 2024 (Before D.K.N. Marete) FRANCIS KEVERENGE…………………………………………………..……APPELLANT AND LEATHER LEE LIMITED…………………………………………………..RESPONDENT JUDGMENT This matter originated by way of Memorandum of Appeal dated 20th June, 2023. It comes out as follows; 1) The learned Magistrate erred in law and misdirected himself in failing to allow the Claimant’s Memorandum of Claim a prayed and proofed since the same was not controverted. 2) The learned Magistrate misdirected himself by failing to make an award for housing allowance despite the Appellant leading uncontroverted evidence that the same was never paid during the pendency of his employment. 3) That the learned Magistrate erred in law and fact by failing to make an award for underpayment despite the Claimant proffering evidence that his salary was reduced to below the statutory minimum wage as provided by the Regulation of Wages (General) (Amendment) Order 2018. 4) That the learned Magistrate erred in law and fact by declining an award of Holiday pay despite the claim being uncontested by Respondent. 5) The learned Magistrate erred in law and fact by declining to award the Claimant compensation for overtime worked which claim was uncontroverted. 6) That the learned Magistrate erred in law and fact by failing to make an award for withheld salary as a result of unlawful and unilateral salary reduction without the Claimant’s consent. 7) That the learned Magistrate erred in law and fact in awarding an equivalent of three months’ salary as compensation for unfair termination considering the acute unfair and ill treatment imposed by the Respondent on the Claimant. ELRC NAIROBI – E279 OF 2024 1 OF 7 8) That the learned Magistrate erred in law and fact by failing to give the rationale of arriving at a three months’ salary as compensation for wrongful and unfair termination of the Claimant’s employment for want of both substantive justification and procedural fairness. 9) The learned Magistrate erred in law and fact by failing to compute the precise figures the Respondent is supposed to pay to the Appellant in all the awards that he allowed and awarded. 10)The learned Magistrate erred in law and fact and misdirected himself by failing to pronounce himself on a decretal amount to be satisfied by the Respondent. 11)The learned Magistrate erred in law and fact and misdirected himself by failing to pronounce in his judgment how the claims allowed should be computed and/or tabulated after delivery of judgment. 12)The learned Magistrate erred in law and fact in disregarding part of the Appellant’s Memorandum of Claim and submissions. 13)The learned magistrate erred in law and in fact by closing his mind to the Appellant’s case, evidence and submissions thereby arriving at a wrong and unjust decision. 14)The learned trial magistrate erred in law and in fact in failing to appreciate the principles applicable in the circumstance therefore arriving at an erroneous finding. 15)That in all the circumstances of the case, the learned Magistrate failed to do justice. The Appellant prayed for orders THAT: 1) This appeal be allowed. 2) Part of the Judgment of the Learned Trial Magistrate delivered on 23rd of May, 2024 and consequential orders be set aside. 3) The costs of this appeal by awarded to the Appellant. The Appellant submitted that his claim was uncontroverted. Despite filing its statement of defence and counterclaim, the Respondent failed to appear in court or present evidence to rebut the claim. In support of this submission, the Appellant cited Trust Bank Limited v Paramount Universal Bank Limited & 2 Others [2009] eKLR, wherein the Court of Appeal held thus; ELRC NAIROBI – E279 OF 2024 2 OF 7 “It is trite law that pleadings are not evidence. Mere statements of fact in pleadings are not proof of those facts unless they are admitted.” The Appellant therefore contends that the learned magistrate erred in law and fact by failing to compute the awarded sum, and instead directed the parties to agree on the figures. This, he argued, amounted to an abdication of judicial responsibility and rendered the award ineffective and unenforceable. He urged this Court to rectify the miscarriage of justice by granting the reliefs as particularized and prayed for in the Memorandum of Claim. The Appellant further submitted that Order 20 Rule 4 of the Civil Procedure Rules requires that judgment be precise and accompanied by reasons. The trial court, however, failed to give precise figures for each relief allowed, despite the claims being pleaded, particularized, and prayed for in the Memorandum of Claim. The Appellant highlighted that immediately after the judgment was delivered, the learned magistrate advised counsel to reach out to the Respondent to discuss the amount to be paid. He submitted that this was a grave error, as a judgment, once delivered, is enforceable without such a discussion. He cited Telkom Kenya Limited v John Ochanda (Suing On His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Limited) 2014 KECA600(KLR), wherein the Court of Appeal as follows; “There is also the obvious misdirection on the part of the learned Judge in imposing upon the appellant the very obligation that by law resides in the courts, to conduct computations and declare the entitlement of claimants before them. It is not a task that can, without a species of violence to the judicial tradition, be placed upon defendants. The assessment of damages is purely a judicial function that cannot be delegated.” ELRC NAIROBI – E279 OF 2024 3 OF 7 The Appellant submitted that a judgment should not be delivered in vain; it must be one that can be enforced or executed. He contended that the impugned judgment was not complete and conclusive, as the court, despite making findings on the reliefs to be awarded, did not compute the figures payable as required by law. Turning to the specific claims, the Appellant submitted that the Respondent neither provided housing nor provided evidence that his salary included a house allowance. Having failed to produce itemized payslips, the Appellant asserted he was entitled to house allowance of Kshs.179,716, as particularized in the Memorandum of Claim. He further submitted that his salary had been reduced below the statutory minimum wage under the Regulations of Wages (General) (Amendment) Order 2018 and the Employment Act, a claim unchallenged by the Respondent. He urged the court to award Kshs.23,888.17 for underpayment. The Appellant also gave evidence that he was denied statutory leave days and required to work on public holidays without compensation. The Respondent failed to rebut this claim, making it an uncontested fact that holiday pay was owed. The Appellant submitted that the trial court erred in failing to award compensation for unpaid public holidays, amounting to Kshs.102,171.30. He further submitted that he had worked four hours of overtime daily, from 07:00AM to 08:00PM, which was also unchallenged. He prayed that this Court substitute the trial court’s finding and award Kshs.931,500 for overtime worked but not compensated. The Appellant relied on Section 19(1) of the Employment Act, 2007 which strictly regulates wage deductions and allows deductions only as permitted by law or contract. He cited Kennedy ELRC NAIROBI – E279 OF 2024 4 OF 7 Mutua Mwangangi v Madison Insurance Company (K) Limited [2020] eKLR, which observed as follows; “Without any work records with regard to how and why the respondent made the decision to effect a salary deduction, there being no witness to support the defence filed, the court finds no good cause for the same. The deduction of ksh.20,000 from the claimant’s salary from February, 2014 was unlawful............. As noted above, the Act does not allow the employer to effect a salary deduction from an employee without a lawful cause.” The Appellant submitted that the learned magistrate declined to award the deducted salaries without giving any reason for departing from a superior court’s decision. He therefore prayed for Kshs.273,000 being unlawfully deducted salaries. The Appellant submitted that the Respondent had the burden to prove leave days taken, being the custodian of employee records, particularly under Section 74(1)(f) of the Employment Act, 2007. The Respondent failed to discharge this burden. He further relied on Section 49(4) of the Employment Act, 2007 which requires a court to set out factors or reasons for assessing compensation. The Appellant contended that the trial court erred in not giving reasons for assessing compensation. He also submitted that due to the humiliation suffered and the manner of unlawful termination, he is entitled to twelve months’ salary as compensation. He noted that the award is discretionary, yet the trial court failed to provide reasons for awarding only three months’ pay as per the authority of Kenfreight (E.A.) Limited v Benson K. Nguti [2016] eKLR. ELRC NAIROBI – E279 OF 2024 5 OF 7 The Court considered whether the learned magistrate erred in law and fact in failing to allow the Claimant’s Memorandum of Claim as prayed, in failing to compute the reliefs sought and allowed, and in failing to pronounce the precise amount due. The Appellant submitted that he led uncontroverted evidence establishing entitlement to the claimed dues. In Gichinga Kibutha v Caroline Nduku [2018] eKLR, the Court held thus; “It is not automatic that in instances where the evidence is not controverted, the claimant’s claim shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.” Further, in Meshack Mutilangi v Mustek East Africa Limited [2021] eKLR, the Court observed thus; “This Court did hold in the case of Lydia Moraa Obara v-Tusker Mattresses Limited, Nairobi ELRC No. 1391 of 2019 that the mere fact that the respondent did not place any evidence before Court does not chip off the Court’s duty to interrogate the truthfulness of the Claimant’s evidence. A favourable judgement is not automatic.” On review of the evidence, the Appellant averred that he was grossly underpaid from November 2019 until his dismissal on 17th January 2020. However, the account statements produced in court only covered 2nd July 2016 to 4th September 2017. No employment contract or pay slips were produced to substantiate the underpayment claim. Accordingly, this Court aligns with the trial court’s finding that the claim for underpayment fails. ELRC NAIROBI – E279 OF 2024 6 OF 7 Regarding holiday pay, overtime, house allowance, and withheld salary, the Court finds that the trial court properly held that these claims fail, as no evidence was placed before the trial court to prove entitlement or denial by the Respondent. No payslips or contracts were produced to show that the salary was not consolidated for housing allowance, nor was there evidence of working hours to substantiate overtime claims. The trial court properly allowed the prayer for January 2020 salary, one month’s salary in lieu of notice, annual leave, and three months’ salary as compensation for unlawful termination. However, the awards for annual leave and compensation were not particularized; they were to be calculated based on the salary scale prior to termination. Consequently, this Court directs that the file be returned to the trial court, and the trial court is to properly particularize the reliefs awarded for annual leave and compensation. I am therefore inclined to partially allow the appeal, order and direct as follows; (i) That this matter be and is hereby returned to the trial court with a view to particularizing the relief awarded for annual leave and compensation for unlawful termination of employment. (ii) The costs of this appeal shall be borne by the Respondent. Delivered, dated and signed this 28th day of January 2026. D. K. Njagi Marete JUDGE Appearances: ELRC NAIROBI – E279 OF 2024 7 OF 7 1. Mr. Ondigi instructed by Nchogu, Omwanza & Nyasimi Advocates for the Appellant. 2. No appearance for the Respondent. ELRC NAIROBI – E279 OF 2024 8 OF 7