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MagistratePartially AllowedNot stated in judgment· [2026] KEMC 160 (KLR)

Kilote v Tahmeed Transporters Ltd (Cause E721 of 2024) [2026] KEMC 160 (KLR)

Employment and Labour Relations Court (Subordinate Court), Mombasa
25 June 2026
EMEMILY M. MWAMUYE
1,451 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court ruled a driver's dismissal was unfair because the employer gave contradictory reasons and followed no lawful procedure, awarding six months' salary.

What this practically means

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Executive summary

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The Claimant sued for unlawful and unfair termination of employment, seeking a declaration, twelve months' salary as compensation, notice pay, underpayments, costs and interest. He testified that he was employed in August 2022 as a Heavy Commercial Truck Driver earning Kshs.30,000 monthly, and on 5th September 2024 was told he had failed in his duties and that, due to reduced workload, the company would not continue employing him. The Respondent denied liability, contending the Claimant was not a permanent employee and had been paid all dues; its Human Resource Manager, who joined in 2025 after the Claimant had left, conceded he had no personal knowledge of the Claimant. The court framed four issues: employment relationship, fairness of termination, proof of underpayment, and entitlement to reliefs. The court found the employment relationship proved through the Certificate of Service, NSSF statement and the Respondent's own admissions. On the termination, the court held that two reasons were given simultaneously - poor performance and reduced workload - and that the Respondent failed on either footing: no evidence of poor performance or any hearing was produced, and the Section 40 redundancy procedure was not followed. The termination was declared unfair and unlawful, and compensation of six months' salary (Kshs.180,000) was awarded under Section 49. The notice pay claim was declined as the payment breakdown showed it had been paid, and the underpayment claim of Kshs.301,307.68 failed for want of specific proof of the wage category. Costs were awarded to the Claimant, with interest on the decretal sum from the date of judgment.

Key legal issues

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01

Existence of the employment relationship

Holding

The Claimant proved on a balance of probabilities that he was employed by the Respondent between August 2022 and September 2024, evidenced by the Certificate of Service, NSSF statement and the Respondent's own submissions.

Reasoning

The Respondent initially denied the employment relationship but its Certificate of Service dated 5th September 2024 confirmed employment as a driver from August 2022 to August 2024. The NSSF statement reflected the Respondent's contributions. The Respondent's own submissions acknowledged the employment. Its witness only joined the company in 2025, after the Claimant had left, so had no personal knowledge and could not rebut the documentary evidence.

p. 3
02

Fairness of the termination

Holding

The termination was unfair and unlawful whichever reason is adopted: if poor performance, no procedural or substantive fairness was proved; if reduced workload, Section 40 redundancy procedure was not followed.

Reasoning

Two reasons were communicated simultaneously - poor performance and reduced workload. No warnings, appraisals or disciplinary proceedings were produced to substantiate poor performance, and Sections 41, 43 and 45 requirements were not met. Reduced workload pointed to an operational reason requiring Section 40 compliance, but no notice to the Labour Officer, no redundancy notice, and no selection criteria were shown. The Respondent's defence was merely that redundancy never occurred, and it failed to discharge its burden.

p. 3
03

Underpayment claim

Holding

The underpayment claim failed for want of proof of the applicable wage category and because of inconsistencies in the pleaded figures.

Reasoning

The Certificate of Service merely described the Claimant as a driver. No driving licence, vehicle allocation records or logbooks were produced to establish he was a Heavy Commercial Vehicle Driver attracting the wage rates relied upon. The underpayment claim is special damages requiring specific proof. Further, the pleaded monthly salary of Kshs.30,000 was inconsistent with the Kshs.25,800 figure used in the underpayment computation.

p. 4
04

Compensation under Section 49

Holding

Six months' salary (Kshs.180,000) was awarded as compensation for unfair termination.

Reasoning

In assessing compensation under Section 49, the court considered the approximately two years of service, absence of any proven misconduct, the Respondent's failure to follow due process, and the fact that some terminal dues were paid on separation. Using the admitted salary of Kshs.30,000 per month, six months yielded Kshs.180,000.

p. 4

Legal principles established

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  • Where termination is communicated on the basis of reduced workload, it is an operational reason attracting the redundancy procedure under Section 40 of the Employment Act
  • The employer bears the burden of justifying a termination under Sections 43 and 45 of the Employment Act
  • A claim for underpayment is a claim for special damages which must be specifically proved

Court orders

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  1. 1.A declaration that the termination of the Claimant's employment was unfair and unlawful
  2. 2.Compensation for unfair termination of Kshs.180,000
  3. 3.Dismissal of the claim for notice pay
  4. 4.Dismissal of the claim for underpayment
  5. 5.Costs of the suit awarded to the Claimant
  6. 6.Interest on the decretal sum at court rates from the date of judgment until payment in full
Jurisdiction invoked
Employment and Labour Relations jurisdiction over unfair termination claims under the Employment Act

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, "Kilote v Tahmeed Transporters Ltd (Cause E721 of 2024) [2026] KEMC 160 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/160/eng@2026-06-25

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