8.The Appeal was canvassed by way of written submissions. The Appellant submitted that the learned trial Magistrate erred by holding that he did not deny, rebut and/or address the allegations raised in the letter dated 25th November 2021 as it is evident that he addressed those allegations in his witness statement where stated that he went back to work on 13th February 2021 and was informed that his services were no longer required and as such, was terminated.
9.It was the Appellant’s further submission that he did not abscond work as alleged by the Respondent in the letter of 25th November 2021.
10.The Appellant maintained that the learned trial Magistrate erred by dismissing the entire claim based on allegations in the letter dated 25th November 2021, which the Respondent failed to substantiate during the trial. In the Appellant’s view, these facts were not challenged by the Respondent and as such, the same ought to have been admitted as true facts in regards to his termination.
11.In further submission, the Appellant stated that he had proved that he was not given any valid reason for the termination and that he was not issued with a Notice to Show Cause for allegedly absconding duty.
12.The Appellant further maintained that his salary was below the minimum wage as provided for by the law and as such, he is entitled to the underpayments sought in the Memorandum of Claim.
Analysis and determination
13.This being the first appeal, the Court is duty bound to revisit and exhaustively re-evaluate the evidence presented before the trial Court and draw its own independent conclusion but bearing in mind that unlike the trial court, it did not have the advantage of seeing and hearing the witnesses. This position was reaffirmed by the Court of Appeal in the case of Selle & Another V Associated Motor Boat Company Ltd & Others,  EA 123.
14.I have carefully considered the record before me, the submissions by the Appellant, as well as the law, and to my mind, the following issues fall for determination by the Court: -a.Whether the Appellant was terminated from employment;b.If the answer to (a) is in the affirmative, whether the Appellant’s termination from employment was unfair and unlawful;c.Whether the remedies sought by the Appellant lie in law.
Whether the Appellant was terminated from employment
15.The Appellant’s case at the trial Court was that he was terminated from employment on 13th February 2021 without notice and or justifiable cause.
16.From the record, the Appellant did not exhibit a letter of termination. Therefore, there is no direct evidence confirming that the Appellant was terminated from employment.
17.It is apparent from the record that the Appellant engaged an Advocate who in turn, addressed the Respondent, through a letter dated 4th November 2021, on allegations that it had unlawfully terminated his employment without affording him an opportunity to be heard.
18.In a letter dated 25th November 2021, which was exhibited by the Appellant at the trial Court, the Respondent through its Advocate addressed the Appellant’s Advocate as follows:
19.What manifests from the aforementioned letter, is that from the Respondent’s end, it had not terminated the Appellant’s employment and that it still considered him its employee. Indeed, the Respondent was categorical through its Advocate that the Appellant remained its employee and was even contemplating disciplinary action against him for absconding work.
20.The Black’s Law Dictionary, 10th Edition defines the term “Termination of Employment” to mean: -
21.Applying the said definition to the instant case, it is clear that termination of employment had not occurred. If that were the case, then it would not have been logical for the Respondent to indicate that it was considering taking disciplinary action against the Appellant. Indeed, that was sufficient proof to the Appellant that the employment relationship was still subsisting and there was no complete severance.
22.It is also worth pointing out that Section 47(5) of the Employment Act places the burden of proving that an unfair termination or wrongful dismissal has occurred on the employee. Once this burden is discharged, then the employer has the burden of justifying the grounds for the termination of employment or wrongful dismissal.
23.My position is fortified by the determination of the Court of Appeal in the case of Pius Machafu Isindu vs Lavington Security Guards Limited  eKLR, where the learned Judges reckoned as follows: -
24.Applying the above determination to the instant case, it is evident that in light of Section 47(5) of the Employment Act, the Appellant had the onus of proving that there was complete severance of the employment relationship between him and the Respondent. Indeed, that was the foundation of the Appellant’s case.
25.In this case, there was no evidence that the employment relationship had come to an end. In any case, the record bears that as of 25th November 2021, the employment relationship was still subsisting. The bottom line is that the Appellant had not been terminated from employment.
26.Assuming that indeed the Appellant had been informed by the Respondent’s Human Resource Manager that his services were no longer needed, one wonders why he did not set the record straight upon receiving the letter from the Respondent’s Advocate that he had not been terminated. Further, did he attempt to report back to work thereafter upon such confirmation that he was still the Respondent’s employee?
27.In the ordinary scheme of things, one would expect that upon the Appellant being notified that he was still an employee of the Respondent, he would have reported to work or at least through his Advocate, set the record straight with regards to his termination.
28.It is against this background that I cannot help but find that the Appellant has failed to prove on a balance of probabilities, that he was terminated from employment.
29.Having found that there was no termination, it is not logical to consider whether the Appellant’s termination was unfair and unlawful, as that issue falls by the wayside.
30.To this end, the Court is unable to fault the finding by the learned trial Magistrate.
31.As the Court has found that the Appellant has failed to prove that he was terminated from employment, the claims for compensatory damages and notice pay, which are attendant to such a finding, do not lie.
32.Turning to the issue of salary underpayments and unpaid house allowance, it is clear that the two claims constitute continuing injuries. A continuing injury is a wrong that is not committed by a single event or breach. It is committed continuously over a period of time. Therefore, in this case, every time the Appellant was underpaid, a breach was committed.
33.The Black’s Law Dictionary, defines continuing injury to mean: -
34.Section 90 of the Employment Act, addresses the limitation period in respect of a continuing injury as follows: Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act (Cap. 22), no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.” Underlined for emphasis
35.Essentially, the Employment Act has placed a time bar of 12 months in the case of a continuing injury, from the date of cessation of the said injury. In this regard, cessation of the injury occurs when the breach is halted.
36.Fundamentally, a claim for continuing injury should be made within 12 months upon cessation of the alleged continuing injury.
37.In the case of G4S Security Services (K) Limited vs Joseph Kamau & 468 others  eKLR, the Court of Appeal considered the import of the aforesaid Section 90 with regards to a continuing injury and had this to say:
38.The logical question to ask thus, is when did the continuing injury cease in this case? Revisiting the record, the Appellant averred that he was terminated from employment on 13th February 2021. In this case, the Appellant did not indicate when last, he received his salary from the Respondent. Ideally, that would be the date the injury ceased.
39.In the absence of a payment period, it is my view that the date that triggered the instant case being 13th February 2021, would be the benchmark date in determining the claim for a continuing injury. I say so because, on that day, the Appellant had all the necessary facts with regards to his claim for salary underpayment and unpaid house allowance. Therefore, if at all he was aggrieved that he had been unlawfully terminated from employment, it follows that he was aggrieved enough to bring a suit for salary underpayment and unpaid house allowance. Therefore, by dint of Section 90 of the Employment Act, he had up to 13th February 2022, to move the court.
40.It is not clear from the Memorandum of Claim when the suit was filed at the trial court. Be that as it may, it is notable that the Memorandum of Clam is dated 14th March 2022. It therefore follows that the suit was either filed on the same day it is dated or thereafter but cannot be before 14th March 2022. Clearly, this was outside the stipulated time for a claim for continuing injury and as such, the claim was statute barred by the time it was filed.
41.In light of the foregoing, the claims for underpayment and unpaid house allowance cannot be sustained.
42.With regards to the claim for service pay, the same is declined as the Appellant was a registered member of the National Social Security Fund (NSSF) hence he falls within the exclusions under Section 35(6) of the Act. He is therefore not eligible for service pay.
43.The net effect of my finding is that the Appellant is not entitled to any reliefs he had sought at the trial Court.