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Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in judgment

Claimant v Respondent (Unfair Termination and Employment Benefits)

Employment and Labour Relations Court
26 March 2025
1,270 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan employer that skips a termination hearing and stays silent in court must pay the employee full compensation, but only claims backed by evidence survive.

What this practically means

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Executive summary

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By a statement of claim dated 22nd July 2024, the claimant sought unpaid leave allowance, unpaid maternity leave, house allowance of Kshs.1,628,152, two months' pay in lieu of notice, general damages for unfair termination, service pay/gratuity of Kshs.501,795, costs and interest. The respondent did not enter appearance or file a defence, and the suit proceeded by formal proof. The claimant testified that she was employed on 1st December 2020 in the processing department and that her employment was terminated orally on 30th November 2021 without reason, notice, benefits or a certificate of service. She produced a pay advice slip and her national identity card. The court framed two issues: whether the termination was unfair and unlawful, and whether the reliefs were merited. Applying section 45 of the Employment Act and following George Musamali v G4S Security Services Kenya Ltd, the court held that unfair termination requires a valid reason and fair procedure; the employee bears the legal burden while the employer bears the evidentiary burden. Since the respondent tendered no evidence, the claimant discharged her burden under section 47(5). On quantum, the court awarded one month's notice pay of Kshs.28,376.72, 12 months' compensation of Kshs.340,520.61 for her long service, house allowance of Kshs.44,866.51 limited to 13 months at 15% of basic salary, and a certificate of service under section 51. Claims for leave allowance, maternity leave and service pay were declined; the latter because the claimant was registered with NSSF under section 35(6). The award totals Kshs.413,763.84, subject to statutory deductions, with interest at court rate from the date of judgment.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent terminated the claimant's employment unfairly and unlawfully.
  2. 2.Whether the reliefs sought in the suit are merited.

Key legal issues

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01

Whether the termination was unfair and unlawful

Holding

Unfair termination established on a balance of probabilities; the respondent, having not entered appearance or filed defence, failed to prove a valid reason or fair procedure.

Reasoning

Section 45(1) and (2) of the Employment Act require the employer to prove both a valid reason and a fair procedure. The claimant testified that her employment was terminated orally without reason or notice. The respondent tendered no evidence to rebut her account. The court therefore found the legal burden under section 47(5) discharged, relying on George Musamali v G4S Security Services on the two-stage test of valid reason and fair procedure.

p. 3
02

Quantum of reliefs

Holding

One month's notice pay, 12 months' gross salary as compensation, house allowance for 13 months at 15% of basic salary, and a certificate of service awarded; leave, maternity and service pay claims declined.

Reasoning

The court awarded notice under section 35(1)(c) for lack of proof of two months. Twelve months' compensation under sections 49 and 50 was granted given the claimant's long service of 21 years and absence of contributory misconduct. House allowance was limited to November 2020 to November 2021 at 15% of the proved basic salary, as earnings since 2000 were not proved. Service pay failed because NSSF deductions appeared on the pay slip.

p. 3

Legal principles established

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  • The burden of proving unfair termination lies on the employee, while the employer bears the evidentiary burden of proving valid reason and fair procedure.
  • Where the employer fails to rebut the employee's evidence, the employee discharges the burden of proving unfair termination on a balance of probabilities.
  • An employee registered with NSSF is disqualified from service pay under section 35(6) of the Employment Act.
  • A certificate of service is a right of every employee under section 51 of the Employment Act.

Court orders

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  1. 1.Judgment for the claimant against the respondent: Notice Kshs.28,376.72; Compensation Kshs.340,520.61; House Allowance Kshs.44,866.51, totalling Kshs.413,763.84
  2. 2.Issue of a certificate of service to the claimant
  3. 3.The award is subject to statutory deductions
  4. 4.Interest at court rate from the date of judgment

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment Act, 2007 (sections 35, 45, 47(5), 49, 50, 51); ELRC Procedure Rules

Relief refused

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Unpaid leave allowance and unpaid maternity leave

Lacked particulars of calculation and supporting evidence.

p. 3

General damages for unfair termination beyond statutory compensation under section 49

Court awarded statutory compensation instead of general damages.

p. 3

Full house allowance claim of Kshs.1,628,152 for 21 years

Not shown the claimant earned Kshs.43,072.81 since 2000; awarded only 15% of basic salary for November 2020 to November 2021.

p. 3

Service pay/gratuity of Kshs.501,795

Claimant was registered with NSSF, which disqualifies her from service pay under section 35(6) of the Employment Act.

p. 4

Two months' pay in lieu of notice

No evidence supported two months' notice; one month (28 days) awarded under section 35(1)(c).

p. 3

Costs

Costs of the claim were sought; no express costs order appears in the final orders. Only interest at court rate from date of judgment was awarded.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The above provisions bring out two elements of unfair termination including valid reason, and fair procedure.
p. 2Elements of unfair termination
The respondent did not tender any evidence to rebut the claimant’s evidence and therefore I find that the claimant has discharged her legal burden of proving unfair termination on a balance of probabilities as required under section 47 (5) of the Employment Act.
p. 3Burden of proof in uncontroverted unfair termination claim
Section 35(6) of the Employment Act disqualifies any employee who is registered for NSSF from the benefit of service pay.
p. 4Service pay disqualification for NSSF-registered employees
The claim for certificate of service is granted because it is a right to every employee under section 51 of the Employment Act.
p. 4Certificate of service as a statutory right
I enter judgment for her against the respondent as follows: a. Notice………………………………………….Kshs.28,376.72 b. Compensation………………………………Kshs.340,520.61 c. House Allowance…………………………….Kshs.44,866.51 Kshs.413,763.84 d. Certificate of service.
p. 4Final orders and quantum awarded

Issues in the judgment

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material

The judgment states the claimant joined the respondent in 2020 but elsewhere refers to 21 years of service and joining in the year 2000, creating an internal inconsistency in the length-of-service findings.

minor

Costs were claimed in the statement of claim but no express costs order appears in the conclusion/disposition.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Claimant v Respondent (Unfair Termination and Employment Benefits)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/936/eng@2025-03-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.