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The appeal was allowed in part. The trial judgment and decree were vacated and replaced with judgment for the Respondent limited to: house allowance for three years at 15% of basic monthly salary; service pay for 17 completed years at one month’s salary per year; and interest at court rates from the appellate judgment until payment. The trial costs award was upheld, but there was no order as to costs of the appeal. The substituted judgment did not retain the trial awards of accrued leave or a certificate of service.
The Appeal is allowed to the extent the judgment and decree of the Court are vacated and substituted with the judgment in favour of the Respondent.
Paragraph 10 →
The Respondent is entitled to the following awards:
Paragraph 11 →
d. There is no order as to costs on this appeal.
Passage 35 →
Held. No. The Court held that the contract of service was not terminated and that the Respondent had not demonstrated unlawful dismissal. He was therefore not entitled to the safeguards under section 41 concerning fair procedure.
Ratio. Section 41 procedural safeguards apply where there is a termination requiring fair procedure. Where the employee absconds and the contract was not terminated, unlawful dismissal is not established, although accrued employment salary and benefit entitlements are not thereby extinguished.
Issue
Granting a self-contradictory judgment by dismissing the Respondent's claim for wrongful and unlawful termination, finding that he had deserted duty, yet proceeding to award remedies available only to an employee whose employment had been unlawfully terminated.
Passage 12 →
Held
The contract of service was not terminated and therefore the Respondent was not entitled to the safeguards of section 41 which speak to fair procedure.
Paragraph 10 →
Ratio
Despite the manner of termination by absconding of duty, the entitlement to salary and the benefits of employment are not extinguished. All the Respondent was unable to demonstrate was unlawful dismissal since there was none.
Paragraph 10 →
Held. Yes. The Respondent was entitled to service pay for all 17 years, calculated at one month’s salary for each completed year of service.
Ratio. Service pay, if due and not barred by a disqualifying scheme, becomes payable after termination regardless of the manner of termination. The three-year claims limitation does not restrict the period of service used to calculate that entitlement.
Issue
Misapprehending the law by failing to recognize that labour claims are time bound to a three-year limitation when he awarded claims running down into 17 years.
Passage 13 →
Held
b. Service pay for 17 years of service which is calculated at the rate of one month’s salary for each completed year of service in terms of section 35 of the Employment Act.
Passage 33 →
Ratio
The payment of service pay is not limited to the traditional 3 years for claims as the period of service where this is due and payable are beyond the 3 years. The sum is only due after termination regardless of the manner of termination if the employee is not under the schemes that disqualify the employee from the claim.
Paragraph 9 →
Held. Only in part. The Respondent was entitled to house allowance because none had been provided, but the award was limited to three years at 15% of basic monthly salary.
Ratio. An employer must provide reasonable accommodation or pay house allowance. In this case, the recoverable house-allowance entitlement was limited to three years.
Issue
Misapprehending the law to the extent of awarding untaken leave for 17 years when the law clearly caps it at eighteen months.
Passage 14 →
He further submits that he established his entitlement to house allowance and that the trial court rightly found in his favour, the Appellant having failed to demonstrate compliance with section 31(1) and (2) of the Employment Act, 2007
Paragraph 7 →
Held
The Respondent was not given any house allowance and would be entitled to house allowance but limited to a period of 3 years.
Paragraph 10 →
a. House allowance for 3 years at the rate of 15% of basic salary per month.
Passage 32 →
Ratio
Regarding housing, an employer is required to provide reasonable accommodation to its employees or pay a house allowance.
Paragraph 10 →
Held. No. The trial judgment, which had awarded accrued leave, was vacated and replaced by a substituted judgment listing only house allowance, service pay, and interest; it did not include an award for accrued leave.
Ratio. No distinct ratio identified in the judgment. The Court supplied no express reasoning for excluding accrued leave from the substituted award.
Issue
Despite that finding, the Court awarded the Respondent accrued leave, directed the Appellant to issue a certificate of service, awarded service pay equivalent to 50% of his salary for each of the 17 years worked, as well as house allowance for the period of service amounting to Kshs. 550,800/-.
Paragraph 1 →
Misapprehending the law to the extent of awarding untaken leave for 17 years when the law clearly caps it at eighteen months.
Passage 14 →
Held
The Appeal is allowed to the extent the judgment and decree of the Court are vacated and substituted with the judgment in favour of the Respondent.
Paragraph 10 →
The Respondent is entitled to the following awards:
Paragraph 11 →
b. Service pay for 17 years of service which is calculated at the rate of one month’s salary for each completed year of service in terms of section 35 of the Employment Act.
Passage 33 →
Held. No. The original judgment and decree, including its certificate-of-service direction, were vacated and replaced by a substituted judgment that enumerated only house allowance, service pay, and interest.
Ratio. No distinct ratio identified in the judgment. The Court did not expressly explain the omission of the certificate-of-service direction from the substituted judgment.
Issue
Despite that finding, the Court awarded the Respondent accrued leave, directed the Appellant to issue a certificate of service, awarded service pay equivalent to 50% of his salary for each of the 17 years worked, as well as house allowance for the period of service amounting to Kshs. 550,800/-.
Paragraph 1 →
Held
The Appeal is allowed to the extent the judgment and decree of the Court are vacated and substituted with the judgment in favour of the Respondent.
Paragraph 10 →
The Respondent is entitled to the following awards:
Paragraph 11 →
c. Interest shall be at court rates from the date of this judgment till payment in full.
Passage 34 →
Held. Interest was payable at court rates from the date of the appellate judgment until payment in full, not from the trial judgment.
Ratio. Interest applies to the sums awarded by this Court and consequently runs only from the date of this judgment.
Issue
Awarding interest with ambiguity leading to culmination of interest in excess of Kshs. 1,500,000/- over only a period of three months from the date of judgment.
Passage 15 →
Held
c. Interest shall be at court rates from the date of this judgment till payment in full.
Passage 34 →
Ratio
Interest is to be at Court rates and is applicable on the sums awarded by this Court and therefore only runs from the date of this Judgment.
Paragraph 10 →
Held. The trial court's costs award in favour of the Respondent was upheld. There was no order as to costs on appeal.
Ratio. No separate legal rule is necessary for this finding. The Court made discretionary costs orders without stating a governing legal principle.
Issue
The Appellant also seeks the costs of both the appeal and the proceedings before the Trial Court.
Paragraph 3 →
Held
There was an award for costs which is upheld.
Paragraph 10 →
d. There is no order as to costs on this appeal.
Passage 35 →
Selected passages from the judgment. Follow each paragraph link to read the full context.
In a judgment delivered on 29th November 2023, the Trial Magistrate found that the Respondent had deserted duty. Despite that finding, the Court awarded the Respondent accrued leave, directed the Appellant to issue a certificate of service, awarded service pay equivalent to 50% of his salary for each of the 17 years worked, as well as house allowance for the period of service amounting to Kshs. 550,800/-. The Respondent was also…
Paragraph 1 →Regarding housing, an employer is required to provide reasonable accommodation to its employees or pay a house allowance. The Respondent was not given any house allowance and would be entitled to house allowance but limited to a period of 3 years. The contract of service was not terminated and therefore the Respondent was not entitled to the safeguards of section 41 which speak to fair procedure. Despite the manner of termination by…
Paragraph 10 →The court considered whether the trial magistrate’s awards were inconsistent with the finding that the respondent had deserted duty; whether service pay for 17 years and house allowance were recoverable despite the limitation objection; whether the respondent…
The trial magistrate found that Christopher Nyamari Mosomi had deserted duty. Nonetheless, the magistrate awarded him accrued leave, a certificate of service, service pay calculated at 50% of salary for each of 17 years worked, house allowance of Kshs.…
Get the complete brief with membership →REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS
COURT OF KENYA AT NAIROBI
APPEAL NO. E075 OF 2024
READY CONSULTANCY LTD.……………..…..……………APPELLANT
VERSUS
CHRISTOPHER NYAMARI MOSOMI.…...........................RESPONDENT
(Being an appeal from the judgment and decree of Hon. G. Omodho (PM) in Nairobi MELRC No. 409 of 2018 delivered on 29th November 2023)
JUDGMENT
1. In a judgment delivered on 29th November 2023, the Trial Magistrate found that the Respondent had deserted duty. Despite that finding, the Court awarded the Respondent accrued leave, directed the Appellant to issue a certificate of service, awarded service pay equivalent to 50% of his salary for each of the 17 years worked, as well as house allowance for the period of service amounting to Kshs. 550,800/-. The Respondent was also awarded the costs of the suit.
2. Aggrieved by the decision, the Appellant lodged a Memorandum of Appeal dated 22nd March 2024, contending that the Trial Magistrate erred both in law and in fact by:
(1) Granting a self-contradictory judgment by dismissing the Respondent's claim for wrongful and unlawful termination, finding that he had deserted duty, yet proceeding to award remedies available only to an employee whose employment had been unlawfully terminated.
(2) Misapprehending the law by failing to recognize that labour claims are time bound to a three-year limitation when he awarded claims running down into 17 years.
(3) Misapprehending the law to the extent of awarding untaken leave for 17 years when the law clearly caps it at eighteen months.
(4) Awarding interest with ambiguity leading to culmination of interest in excess of Kshs. 1,500,000/- over only a period of three months from the date of judgment.
(5) Awarding claims not proven at all by the evidence tendered.
3. On the basis of these grounds, the Appellant urges this Court to allow the appeal, set aside the judgment of the Trial Court, and substitute it with an order dismissing the Respondent's claim in its entirety. The Appellant also seeks the costs of both the appeal and the proceedings before the Trial Court.
4. The appeal was canvassed by way of written submissions. Although the Court directed the Appellant to file its submissions on or before 29th May 2026, none were filed. The Respondent, however, complied with the Court's directions and filed written submissions dated 19th June 2026.
Respondent’s Submissions
5. The Respondent identifies the following issues for determination:
(1) Whether the Trial Court properly evaluated the evidence on record.
(2) Whether the Respondent proved unlawful and unfair termination,
(3) Whether the award granted by the Trial Court was justified.
(4) Whether the appeal has merit
6. On the first issue the Respondent submits that the trial court properly considered the pleadings, oral testimony, documentary evidence and the applicable law before reaching its decision. In urging the court not to interfere with trial court’s judgment, it relies on Peters v Sunday Post Limited [1958] EA 424, where the Court held that an appellate court should not interfere with a trial court's findings of fact unless it is apparent that the trial court failed to take into account material circumstances or probabilities affecting the case.
7. With regard to the awards for annual leave, house allowance and service pay, the Respondent submits that they were properly granted. He maintains that he proved he had worked for over 17 years without proceeding on annual leave and that the Appellant failed to adduce any evidence to rebut that claim. He further submits that he established his entitlement to house allowance and that the trial court rightly found in his favour, the Appellant having failed to demonstrate compliance with section 31(1) and (2) of the Employment Act, 2007, which requires an employer either to provide reasonable housing accommodation or to pay a sufficient housing allowance in addition to an employee's wages or salary. In conclusion, the Respondent contends that the appeal is devoid of merit as it merely challenges the trial court's factual findings without identifying any error of law or principle warranting appellate interference. He accordingly urges the Court to dismiss the appeal with costs.
Disposition
8. The duty of a first appellate court is to evaluate the evidence of the trial court and come to its own conclusions based on the evidence whilst bearing in mind it did not see or hear the witnesses testify in trial, an advantage the Learned Magistrate had. The Court has sufficiently warned itself of this and comes to the following determination.
9. The payment of service pay is not limited to the traditional 3 years for claims as the period of service where this is due and payable are beyond the 3 years. The sum is only due after termination regardless of the manner of termination if the employee is not under the schemes that disqualify the employee from the claim. The Respondent herein is therefore correct to argue that service for the period of service beyond the 3 years is payable. The Appellant misapprehended the import of section 89 of the Employment Act in challenging this aspect of the claim.
10. Regarding housing, an employer is required to provide reasonable accommodation to its employees or pay a house allowance. The Respondent was not given any house allowance and would be entitled to house allowance but limited to a period of 3 years. The contract of service was not terminated and therefore the Respondent was not entitled to the safeguards of section 41 which speak to fair procedure. Despite the manner of termination by absconding of duty, the entitlement to salary and the benefits of employment are not extinguished. All the Respondent was unable to demonstrate was unlawful dismissal since there was none. There was an award for costs which is upheld. Interest is to be at Court rates and is applicable on the sums awarded by this Court and therefore only runs from the date of this Judgment. The Appeal is allowed to the extent the judgment and decree of the Court are vacated and substituted with the judgment in favour of the Respondent.
11. The Respondent is entitled to the following awards:
a. House allowance for 3 years at the rate of 15% of basic salary per month.
b. Service pay for 17 years of service which is calculated at the rate of one month’s salary for each completed year of service in terms of section 35 of the Employment Act.
c. Interest shall be at court rates from the date of this judgment till payment in full.
d. There is no order as to costs on this appeal.
It is so ordered.
Dated and delivered at Kisumu this 3rd day of November 2026
Nzioki wa Makau, MCIArb.
JUDGE