Kitao v 19 Twenty-two Limited Trading as 1922 (Cause E455 of 2025) [2026] KEMC 475 (KLR)
The bottom line
#A Mombasa court awarded a Mombasa chef Kshs.90,750 for unfair termination because her employer had no written contract and followed no fair disciplinary process.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an employer-employee relationship existed between the parties
- 2.What were the terms of the Claimant's employment
- 3.Whether the employment came to an end through expiry of a fixed-term contract or termination by the Respondent
- 4.Whether there existed valid and fair reasons for termination
- 5.Whether the Respondent complied with the procedural requirements under the Employment Act
- 6.Whether the Claimant is entitled to the reliefs sought
- 7.Who should bear the costs of the suit
Key legal issues
#Existence of an employer-employee relationship
An employer-employee relationship existed; the Respondent itself issued a termination letter to the Claimant
The Respondent admitted the Claimant was employed (disputing only terms), confirmed she was on its payroll, and produced payroll records. The Court reasoned that one cannot terminate the employment of a person who is not an employee. The dispute was therefore confined to the terms of engagement and the circumstances in which the employment ended.
Terms of employment in the absence of written documentation
The claimed written fixed-term contract with a consolidated salary clause was not proved; monthly salary found to be Kshs.33,000
Sections 10 and 74 of the Employment Act place the obligation to document employment terms and maintain records on the employer. The Respondent asserted a written contract existed but failed to produce it, leaving only oral assertions. The bank statements supported the Claimant's pleaded salary, and on a balance of probabilities the Court found Kshs.33,000 payable.
Effluxion of time versus termination
The employment did not expire by effluxion of time; the Respondent actively terminated the Claimant on disciplinary grounds
The Respondent failed to produce the alleged fixed-term contract, the termination letter expressly assigned disciplinary reasons (poor performance, policy violations, poor working relationships) rather than stating expiry, and the Respondent's pleadings inconsistently claimed both expiry and justified dismissal. Assigning reasons showed the Respondent treated the cessation as a disciplinary termination.
Substantive validity of the reasons for termination
The Respondent failed to discharge its burden under Section 43 of proving valid and fair reasons; the termination lacked substantive justification
Despite allegations of poor performance, no documentary material was produced: no warnings, appraisals, customer complaints, inspection or production reports. RW-1 conceded no documentation existed. Although a Performance Improvement Plan is not mandatory, the employer must show the employee was made aware of deficiencies and given a genuine opportunity to improve; no such evidence was adduced.
Procedural fairness under Section 41
The mandatory requirements of Section 41 were not complied with; the termination was procedurally unfair
Section 41's safeguards are mandatory: explanation of reasons, right to be accompanied, and hearing representations. No notice to show cause was issued, the meeting invitation was verbal with no written notification of the right to be accompanied, and no minutes or disciplinary records were produced. Oral assertions alone could not demonstrate substantial compliance.
House allowance
House allowance of Kshs.24,750 awarded; consolidation not proved
Section 31 requires an employer to provide housing or pay house allowance unless the salary expressly consolidates it. The burden of proving consolidation lay on the Respondent, which produced no written contract with a consolidation clause, no payslips and no payroll records, and RW-1 admitted no housing was provided. The Court cannot presume consolidation.
Compensation for unfair termination under Section 49
One month's gross salary (Kshs.33,000) awarded as compensation, proportionate to the short service
The award is discretionary and subject to Section 49(4) factors. Given service of only about three to four months, absence of prior disciplinary action, the Respondent's failure to prove allegations and non-compliance with Section 41, twelve months would be excessive. One month's salary adequately compensates while remaining proportionate.
Legal principles established
#- Where an employer fails to reduce employment terms into writing, ambiguity falls against the employer who bore the statutory obligation of documenting the relationship
- The burden under Section 10(7) of the Employment Act is evidential; an employer asserting a written contract exists must produce it
- Where a termination letter assigns disciplinary reasons, the cessation is treated as a disciplinary termination rather than expiry of a fixed-term contract
- Once an employee testifies to working on public holidays, the evidential burden shifts to the employer, who is statutorily obliged to maintain records, to disprove the claim
- A claim for work performed on public holidays is special damages which must be specifically pleaded and strictly proved
- Twelve months' salary under Section 49 is a statutory ceiling and not a starting point, and compensation must be proportionate to the length of service
Court orders
#- 1.A declaration that the termination of the Claimant's employment was unfair and unlawful within the meaning of Sections 43 and 45 of the Employment Act, 2007
- 2.One month's salary in lieu of notice of Kshs.33,000.00
- 3.Compensation for unfair termination equivalent to one month's salary of Kshs.33,000.00
- 4.House allowance of Kshs.24,750.00 (Total Award: Kshs.90,750.00)
- 5.The Respondent shall issue the Claimant with a Certificate of Service within thirty (30) days of the Judgment
- 6.The Claimant shall have the costs of the suit
- 7.The sums awarded shall attract interest at court rates from the date of the Judgment until payment in full
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the magistrates' court under the Employment Act, 2007
Relief refused
#Public holiday pay of Kshs.17,522.12
The mathematical basis of the computation was not sufficiently demonstrated; the claim constitutes special damages requiring strict proof
Twelve months' compensation for unfair termination (Kshs.455,400)
Awarded only one month's salary given the short period of service; twelve months is a ceiling, not a starting point
Costs
The Claimant shall have the costs of the suit
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
One cannot terminate the employment of a person who is not an employee. The Court therefore finds that an employer-employee relationship existed between the parties.
By assigning reasons, the Respondent effectively treated the cessation of employment as a disciplinary termination rather than a simple expiry of contract.
The Court therefore finds that the Respondent has failed to discharge the burden imposed by Section 43 of proving valid and fair reasons for terminating the Claimant's employment.
the Court is not satisfied that the Respondent complied with the mandatory requirements of Section 41. The Court therefore finds that the Claimant's employment was terminated through a procedurally unfair process.
a claim for work performed on public holidays constitutes special damages, which must be specifically pleaded and strictly proved.
For the foregoing reasons, Judgment is entered for the Claimant against the Respondent as follows:
g. The Claimant shall have the costs of the suit.
Issues in the judgment
#Internal chronology inconsistency: the Respondent's Statement of Response is dated 8th May 2026, after the Claimant's testimony on 8th December 2025, yet the judgment states the pleadings were considered; the judgment is also dated 30th July 2026 while the cause is numbered E455 of 2025
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kitao v 19 Twenty-two Limited Trading as 1922 (Cause E455 of 2025) [2026] KEMC 475 (KLR)", Case Analysis (2026). MCELRC Cause No. E455 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/475/eng@2026-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.