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MagistratePartially AllowedMCELRC Cause No. E455 of 2025

Kitao v 19 Twenty-two Limited Trading as 1922 (Cause E455 of 2025) [2026] KEMC 475 (KLR)

Chief Magistrates Court at Mombasa
30 July 2026
4,478 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 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

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Executive summary

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The Claimant, employed as a chef (she claimed Head Chef) at the Respondent's hospitality establishment in Nyali, Mombasa, sued for remedies arising from termination of her employment on 2nd April 2025 by letter delivered via WhatsApp, citing poor performance, policy violations and poor working relationships. She alleged she received no notice to show cause, no disciplinary hearing and no right to be accompanied, and claimed notice pay, house allowance, public holiday pay, twelve months' compensation, a certificate of service, costs and interest. The Respondent maintained the employment ended by effluxion of time on expiry of a three-month fixed-term contract, and alternatively that termination was justified and procedurally fair. The Court found an employer-employee relationship existed, and that because the Respondent failed to produce the written contract, payslips and records required under Sections 10 and 74 of the Employment Act, the Claimant's pleaded salary of Kshs.33,000 was proved. The Court held that the termination letter's assignment of disciplinary reasons meant the employment did not merely expire by effluxion of time. The Respondent failed to prove valid reasons under Section 43 and did not comply with the mandatory procedural safeguards of Section 41, rendering the termination substantively and procedurally unfair under Section 45. Judgment was entered for the Claimant: declaration of unfair termination, Kshs.33,000 in lieu of notice, Kshs.33,000 compensation (one month, proportionate to short service), and Kshs.24,750 house allowance, totalling Kshs.90,750, plus a certificate of service within thirty days, costs, and interest. The public holiday pay claim of Kshs.17,522.12 failed for want of strict proof of the computation.

Questions the Court framed

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

  1. 1.Whether an employer-employee relationship existed between the parties
  2. 2.What were the terms of the Claimant's employment
  3. 3.Whether the employment came to an end through expiry of a fixed-term contract or termination by the Respondent
  4. 4.Whether there existed valid and fair reasons for termination
  5. 5.Whether the Respondent complied with the procedural requirements under the Employment Act
  6. 6.Whether the Claimant is entitled to the reliefs sought
  7. 7.Who should bear the costs of the suit

Key legal issues

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01

Existence of an employer-employee relationship

Holding

An employer-employee relationship existed; the Respondent itself issued a termination letter to the Claimant

Reasoning

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.

p. 7
02

Terms of employment in the absence of written documentation

Holding

The claimed written fixed-term contract with a consolidated salary clause was not proved; monthly salary found to be Kshs.33,000

Reasoning

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.

p. 9
03

Effluxion of time versus termination

Holding

The employment did not expire by effluxion of time; the Respondent actively terminated the Claimant on disciplinary grounds

Reasoning

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.

p. 11
04

Substantive validity of the reasons for termination

Holding

The Respondent failed to discharge its burden under Section 43 of proving valid and fair reasons; the termination lacked substantive justification

Reasoning

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.

p. 12
05

Procedural fairness under Section 41

Holding

The mandatory requirements of Section 41 were not complied with; the termination was procedurally unfair

Reasoning

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.

p. 15
06

House allowance

Holding

House allowance of Kshs.24,750 awarded; consolidation not proved

Reasoning

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.

p. 17
07

Compensation for unfair termination under Section 49

Holding

One month's gross salary (Kshs.33,000) awarded as compensation, proportionate to the short service

Reasoning

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.

p. 21

Legal principles established

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  • 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

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  1. 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. 2.One month's salary in lieu of notice of Kshs.33,000.00
  3. 3.Compensation for unfair termination equivalent to one month's salary of Kshs.33,000.00
  4. 4.House allowance of Kshs.24,750.00 (Total Award: Kshs.90,750.00)
  5. 5.The Respondent shall issue the Claimant with a Certificate of Service within thirty (30) days of the Judgment
  6. 6.The Claimant shall have the costs of the suit
  7. 7.The sums awarded shall attract interest at court rates from the date of the Judgment until payment in full

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and labour relations jurisdiction of the magistrates' court under the Employment Act, 2007

Relief refused

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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

p. 20

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

p. 21

Costs

The Claimant shall have the costs of the suit

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.

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.
p. 7Existence of employment relationship
By assigning reasons, the Respondent effectively treated the cessation of employment as a disciplinary termination rather than a simple expiry of contract.
p. 10Fixed-term expiry versus disciplinary termination
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.
Burden of proving reasons for termination
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.
p. 15Procedural fairness
a claim for work performed on public holidays constitutes special damages, which must be specifically pleaded and strictly proved.
p. 20Special damages - strict proof
For the foregoing reasons, Judgment is entered for the Claimant against the Respondent as follows:
p. 22Disposition
g. The Claimant shall have the costs of the suit.
p. 22Final orders - costs

Issues in the judgment

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minor

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

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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, "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.