https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1664

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** (ON Makau J on 18th June 2026) **CAUSE NO. 797 OF 2015** **MOHAMMED IBRAHIM ADANO.............................1ˢᵀ CLAIMANT** **MUTHIANI NZESYA.............................................2ND CLAIMANT** **WYCLIFF MONGARE MAANGI.............................3RD CLAIMANT** **BERNARD OCHIENG OCHOLLA............................4ᵀᴴ CLAIMANT** **ROBERT KIETI MUSYULA.....................................5ᵀᴴ CLAIMANT** **ABDI ABDIKADIR................................................6ᵀᴴ CLAIMANT** **DAVID ADEDE OKWARO......................................7ᵀᴴ CLAIMANT** **-VERSUS-** **T.S.S POP-IN SERVICE STATION LIMITED...............RESPONDENT** **JUDGMENT** **Introduction** 1. By a Memorandum of Claim dated 12th May 2015, the seven Claimants sued the Respondent for unfair termination of their employment and prayed for following reliefs:- 2. ***A declaration that the summary dismissal against the Claimants was wrongful, unlawful and unfair.*** 3. ***An order against the Respondent to pay the Claimants salary in lieu of notice, all dues and benefits, salary in lieu of leave, unremitted N.S.S.F and N.H.I.F deductions and damages for wrongful dismissal as set out in paragraph 12 of the Memorandum of Claim.*** 4. ***An order that the Claimants be issued with a Certificate of Service.*** 5. ***Costs and interest.*** 6. The Respondent filed a Reply to the Memorandum of Claim dated 10th August 2015 admitting that the Claimants were its employees but denied that their dismissal was unlawful. It further averred that the Claimants conspired to defraud it and as such the dismissal was lawful under Section 44(4)(g) of the Employment Act. The Respondent averred that an analysis of operations showed monumental losses of fuel stocks and proceeds as at October 2014. It further averred that the Claimants were interrogated between 1st November 2014 and 12th November 2014, but they all denied the offence. The Respondent prayed for dismissal of the suit with costs. **Evidence** 1. The 4th Claimant, Bernard Ochieng Ocholla, testified as CW1 on behalf all the seven claimants who signed a written authority dated 22nd December 2021 . He adopted his witness statement dated 12th May 2015 and produced the bundle of 28 documents as exhibits. 2. In brief, he testified that he was employed by the Respondent on 14th December 2004 as a pump attendant. He stated that on 14th November 2014, the manager asked all Claimants to sign for a one-week leave because there was no fuel at the petrol station. After the leave expired, they reported to work but were told to go back home and wait to be called. 3. On 30th November 2014, they went to the Respondent’s offices, to receive their salary for November. After the being paid they were given an undated dismissal letter effective 30th November 2014. The reason given was “unexplained losses of fuel stock.” He further stated that no hearing was conducted before dismissal. 4. He testified that the Respondent made deductions for N.S.S.F and N.H.I.F but did not remit all contributions. He further stated that he never went any annual leave. 5. The Respondent did not attend the hearing or send a representative and therefore its case was closed without prosecuting its defence. **Submissions** 1. The Claimants filed written submissions dated 11th December 2025. In brief, they submitted that their dismissal was wrongful and unfair and contravened the Employment Act. They argued that the Respondent did not give them any prior notice or hearing. They submitted that the Respondent alleged unexplained losses of fuel stocks but did not call any witnesses to prove the allegations. They relied on the case of **Walter Ogal Anuro v. Teachers Service Commission [2013] eKLR** for the proposition that for a termination to be fair, there must be both substantive justification and procedural fairness. 2. They also relied on the Court of Appeal case of **Naima Khamis v. Oxford University Press (E.A) Limited, Civil Appeal No. 15 of 2014 [2017] eKLR** for the principle that Section 43(1) and Section 45(2)(c) of the Employment Act require the employer to justify the reason for termination and to follow a fair procedure. The Claimants prayed for judgment as prayed in the Memorandum of Claim. **Issues for Determination** 1. After considering the pleadings, evidence, and submissions, there is no disputes that the respondent dismissed all the claimants from employment on 30th November 2014. The issues for determination are:- 2. Whether the dismissal of the Claimants was unfair and unlawful. 3. Whether the reliefs sought are merited. **Unfair and Unlawful Dismissal** 1. The Claimants contended that the termination of their employment was unfair and unlawful. The Respondent denied this but did not call any witness to prove its case. 2. Section 45(2) of the Employment Act provides that:- ***“(1).*** ***No employer shall terminate the employment of an employee unfairly.*** ***“(2) A termination of employment by an employer is unfair if the employer fails to prove-*** 1. ***That the reason for the termination is valid;*** 2. ***That the reason for the termination is a fair reason-*** 3. ***Related to the employees conduct, capacity or compatibility; or*** 4. ***Based on the operational requirements of the employer; and*** 5. ***That the employment was terminated in accordance with fair procedure.”*** **Reason** 1. The Respondent alleged in its Reply to the Memorandum of Claim that the Claimants were dismissed due to unexplained losses of fuel stocks. The Respondent claimed that an analysis of operations showed monumental losses and that the Claimants were interviewed between 1st November 2014 and 12th November 2014. 2. However, the Respondent did not call any witness to testify. No audit report, stock reconciliation, banking analysis, shift reading, or return to tank records were produced in evidence. No witness statement from any manager or investigator was filed. The allegations in the Respondent’s pleadings remained mere assertions without evidentiary support. 3. The Claimants testified that they were cleared at the end of every shift and did not have access to fuel in the underground tanks. They denied any involvement in fuel losses. The undated dismissal letters gave the reason as “unexplained losses of fuel stock,” but the Respondent failed to prove that such losses occurred or that the Claimants were responsible. 4. Having found that the Respondent has not adduced any evidence to rebut the evidence by the claimants, I proceed to hold that the Claimants have proved on a balance of probability that there was no valid reason for their summary dismissal. **Procedure** 1. Section 45(2)(c) of the Employment Act places on the employer the burden of proving that termination was done in accordance with fair procedure. Section 41 of the Act sets out the procedure for terminating employment for misconduct as follows:- ***“(1) Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.*** ***(2) Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summary dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), make.”*** 1. The above procedure is mandatory before terminating employment on grounds of misconduct. The employer must accord the employee an oral hearing, explain the misconduct in a language the employee understands, allow the employee to have a companion present, allow the employee and his companion to air their representation, and then consider their representations before making a decision to terminate the employment. 2. In the instant case, the Claimants testified that they were never given any hearing. They were sent on leave on 14th November 2014, and then on 30th November 2014 they were handed dismissal letters. No show cause letter was issued. No oral hearing was conducted. No opportunity was given to respond to the allegations of fuel losses. 3. The Respondent alleged in its pleadings that the Claimants were engaged in interviews and interrogations between 1st November 2014 and 12th November 2014. However, no evidence of such interviews was produced. No minutes, no signed statements from the Claimants, and no attendance lists were tendered. The Respondent did not call any witness to describe what transpired. Consequently, I find that the dismissal was not in accordance with fair procedure since the Claimants were denied a fair hearing before their dismissal. 4. Having found that the dismissal was not grounded on valid and fair reason, and that fair procedure was not followed, I must hold that the dismissal of the Claimant was unfair within the meaning of section 45 of the Employment Act. 5. I adopt the holding in **Walter Ogal Anuro v. Teachers Service Commission [2013] eKLR**, cited by the Claimants, that for a termination to pass the fairness test, there must be both substantive justification and procedural fairness. In this case, the Respondent failed on both counts. 6. I also adopt the holding in **Naima Khamis v. Oxford University Press (E.A) Limited, Civil Appeal No. 15 of 2014 [2017] eKLR**, cited by the Claimants, that Section 43(1) of the Employment Act requires the employer to justify the reason for termination, and Section 45(2)(c) requires termination to be done according to a fair procedure. The Respondent failed to satisfy both requirements. **Reliefs** 1. In view of the conclusion above, I find that the Claimant is entitled to a declaration that the summary dismissal of the seven Claimants by the Respondent was wrongful, unlawful and unfair. I further find that under section 49 of the Employment Act, they are entitled to salary in lieu of notice and compensation for unfair termination of their employment. Considering that, on average the Claimants served for more than four years, and never caused their termination through misconduct, I award each one four months gross salary as compensation for the unfair termination plus one month salary in lieu of notice. **Service Pay** 1. The Claimants prayed for service pay calculated at 15 days’ pay for every year served. They contended that they were deducted NSSF dues but the respondent failed to remit to the NSSF Agency. They also prayed for refund of the unremitted NSSF deductions. The Respondent did not adduce any evidence to rebut the allegation that it never remitted the NSSF contributions after deducting from the claimant’s salaries. Consequently, the claim for service pay is allowed as prayed. **Unremitted N.S.S.F Deductions** 1. The Claimants prayed for unremitted N.S.S.F deductions as particularized in paragraph 12 of the Memorandum of Claim dated 12th May 2015. They testified that deductions were made from their salaries but the Respondent did not remit all contributions. They assessed unremitted amounts as follows:- 1. 1st Claimant: Kshs. 12,000 2. 2nd Claimant: Kshs. 7,600 3. 3rd Claimant: Kshs. 8,000 4. 4th Claimant: Kshs. 7,200 5. 6th Claimant: Kshs. 7,200 6. 7th Claimant: Kshs. 5,200 2. As noted above, the Respondent did not produce any evidence of remittance. The law mandates the NSSF Agency to recover any NSSF deductions not remitted after deduction. Therefore, I not order the employer to refund the unremitted deductions but rather let the NSSF Agency to carry out its mandate. **Unremitted N.H.I.F Deductions** 1. The Claimants prayed for unremitted N.H.I.F deductions as follows:- 1. 1st Claimant: Kshs. 200 2. 2nd Claimant: Kshs. 1,120 3. 3rd Claimant: Kshs. 1,080 4. 5th Claimant: Kshs. 1,100 5. 6th Claimant: Kshs. 640 6. 7th Claimant: Kshs. 1,560 2. The Respondent did not produce any evidence of remittance. Since the NHIF is no longer in existence, I order the respondent to refund the said deduction to the respective Claimants. **Unpaid Leave Days** 1. The Claimants prayed for accrued leave days and stated in their witness statements that they were never given time to go for annual leave or paid in lieu. The particularized their leave days in paragraph 12 of the Memorandum of Claim as follows:- 1. 1st Claimant: 68 days – Kshs. 28,685 2. 2nd Claimant: 72 days – Kshs. 40,325 3. 3rd Claimant: 48 days – Kshs. 20,248 4. 4th Claimant: 68 days – Kshs. 28,685 5. 5th Claimant: 24 days – Kshs. 10,124 6. 6th Claimant: 48 days – Kshs. 20,248 7. 7th Claimant: Days not indicated. Amount Claimed – 10,124 2. The Respondent did not produce any leave records to rebut the Claimants’ evidence. Therefore, I award the claim for accrued leave as prayed except for the 7th Claimant who did not give particulars. **Certificate of Service** 1. The Claimants prayed for an order that they be issued with a Certificate of Service. Under Section 51 of the Employment Act, an employer is required to issue a certificate of service upon termination. Consequently, I order the Respondent to issue each of the seven Claimants with a Certificate of Service within thirty (30) days of this judgment. **Conclusion** 1. I have found that the dismissal of the Claimants was unfair and unlawful within the meaning of Section 45 of the Employment Act. I have further found that the Claimants are entitled to most of the prayers sought. Consequently, I enter judgment for the Claimants against the Respondent as follows:- **1st Claimant Mohammed Ibrahim Adano** Notice Kshs. 12,655 Compensation Kshs. 50,620 Service pay (5 years) Kshs. 31,637 Unremitted N.H.I.F Kshs.200 Unpaid leave Kshs. 28,685 **Total Kshs. 123,797** **2nd Claimant – Muthiani Nzesya** Notice Kshs. 16,802 Compensation Kshs. 67,208 Service pay (6 years) Kshs. 50,406 Unremitted N.H.I.F.......................................Kshs. 1,120 Unpaid leave..................................................Kshs. 40,325 **Total Kshs. 176,075** **3rd Claimant – Wycliff Mongare Maangi** Notice Kshs. 12,655 Compensation Kshs. 50,620 Service pay (6 years) Kshs. 37,965 Unremitted N.H.I.F Kshs. 1,080 Unpaid leave Kshs. 20,248 **Total Kshs. 122,568** **4th Claimant – Bernard Ochieng Ocholla** Notice Kshs. 12,655 Compensation Kshs. 50,620 Service pay (10 years) Kshs. 63,275 Unpaid leave Kshs. 28,685 **Total Kshs. 155,235** **5th Claimant – Robert Kieti Musyula** Notice Kshs. 12,655 Compensation Kshs. 50,620 Service pay (5 years) Kshs. 31,637 Unremitted N.H.I.F Kshs. 1,100 Unpaid leave Kshs. 10,124 **Total Kshs. 106,136** **6th Claimant – Abdi Abdikadir** Notice Kshs. 12,655 Compensation Kshs. 50,620 Service pay (5 years) Kshs. 31,637 Unremitted N.H.I.F Kshs. 640 Unpaid leave Kshs. 20,248 **Total Kshs. 115,800** **7th Claimant – David Adede Okwaro** Notice Kshs. 12,655 Compensation Kshs. 50,620 Service pay (8 years) Kshs. 50,620 Unremitted N.H.I.F Kshs.1,560 **Total Kshs. 95,207** 1. The Respondent is hereby ordered to issue each of the seven Claimants with a Certificate of Service within thirty (30) days of this Judgment. 2. The awards are subject to statutory deductions. 3. The Claimants are awarded costs of the suit and interest at court rate from the date of this Judgment. **DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 18TH DAY OF JUNE, 2026.** **ONESMUS MAKAU** **JUDGE** **Appearance:** Njogu for Claimant Waziri for Respondent