https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/446

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT MOMBASA** **MAGISTRATES COURT CIVIL** **MCELRC CAUSE NO. E487 OF 2022** **DANIEL NDEGWA CHIVUTO….……...………………………….…….……..CLAIMANT** **VERSUS** **READY CONSULTANCY LIMITED…….……………………………………RESPONDENT** **JUDGEMENT** **Introduction** 1. The Claimant commenced this suit by a Memorandum of Claim dated 17th October 2022 seeking various remedies arising from the termination of his employment by the Respondent. He contends that he was unfairly and unlawfully dismissed on 7th March 2022 without notice, without being accorded a hearing and without any valid reason. Consequently, he seeks payment of terminal dues amounting to Kshs. 4,918,770.90, compensation for unfair termination, costs of the suit, interest and any other appropriate relief. 2. The Respondent entered appearance and filed a Statement of Response dated 18th September 2024 denying liability. While admitting that the Claimant had been employed by the Respondent as a Machine Tool Operator between 2nd September 2018 and 7th March 2022, the Respondent contends that the Claimant repeatedly absented himself from work without permission despite several warnings, thereby committing gross misconduct which justified termination of his employment. It therefore prays that the suit be dismissed with costs. 3. The matter came before the Court on 4th May 2026, when the parties elected to have the dispute determined by way of written submissions pursuant to Rule 59 of the Employment and Labour Relations Court (Procedure) Rules. Directions were consequently issued for the filing and exchange of written submissions, which were duly filed. 4. I have carefully considered the pleadings, the witness statements, the documentary evidence produced by both parties and the written submissions together with the authorities relied upon. **The Claimant's Case** 1. The Claimant states that he was employed by the Respondent on 2nd September 2018 as a Machine Tool Operator earning a monthly salary of Kshs.19,500. According to him, he faithfully discharged his duties until 7th March 2022, when upon reporting to work he met his supervisor, Mr. Wafula, who informed him that his services were no longer required and instructed him to leave. 2. It is the Claimant's evidence that he requested to be informed of the reasons for the decision but was merely told that the decision was final. He states that he was escorted from the Respondent's premises and was never recalled to resume work. 3. The Claimant maintains that prior to the termination: he was never issued with a notice to show cause; he was never invited to any disciplinary hearing; he was never informed of any allegations against him; he was never given an opportunity to defend himself; and no valid reason was ever communicated to him for the termination. 4. He further avers that throughout his employment he was never granted annual leave, was not paid house allowance, regularly worked four hours overtime every day without compensation and that the Respondent failed to remit his statutory deductions. Following termination, the Respondent also failed to issue him with a certificate of service. 5. The Claimant consequently seeks: one month's salary in lieu of notice; house allowance; accrued leave pay; overtime pay; compensation equivalent to twelve months' salary for unfair termination; unpaid NHIF; service pay; costs of the suit; interest; and any other appropriate relief. 6. The Claimant filed a witness statement reiterating the contents of the Memorandum of Claim and produced, among other documents, his National Identity Card, a demand letter, correspondence from the Ministry of Labour relating to conciliation and extracts of the Regulation of Wages Order in support of his claim. **The Respondent's Case** 1. The Respondent filed a Statement of Response admitting that the Claimant was employed as a Machine Tool Operator on 2nd September 2018 and that the employment relationship came to an end on 7th March 2022. It, however, denies that the termination was unlawful. 2. The Respondent pleads that during the course of his employment the Claimant repeatedly absented himself from work without notifying management, thereby disrupting the Respondent's operations. It further pleads that the Claimant was verbally warned on several occasions but failed to improve his conduct, prompting the Respondent to terminate his employment on account of gross misconduct. 3. The Respondent therefore denies liability for the various terminal dues claimed and contends that the Claimant is not entitled to notice pay, compensation, leave pay, overtime, house allowance, service pay or unpaid NHIF contributions. 4. The Respondent called Silas Wafula, its supervisor, who adopted his witness statement. He states that he was responsible for assigning work to employees and supervising their performance. He describes the Claimant as generally diligent but states that on one occasion the Claimant left the workplace during working hours without permission to attend to personal matters. According to the witness, he verbally reprimanded the Claimant, who apologised and resumed work. 5. Mr. Wafula further states that on another occasion the Claimant again left work before the official closing time without permission. He states that the Claimant was once again reprimanded and reminded of the Respondent's attendance policy, after which he apologised. According to the witness, the Claimant thereafter continued working until 7th March 2022. 6. The Respondent therefore maintains that the termination was justified and urges the Court to dismiss the claim. **Parties' Submissions** 1. The Claimant submits that the Respondent failed to comply with the mandatory provisions of Sections 41, 43 and 45 of the Employment Act. He argues that the Respondent neither established a valid reason for terminating his employment nor accorded him the procedural safeguards required by law before dismissal. 2. In support of this position, the Claimant relied on Walter Ogal Anuro v Teachers Service Commission [2013] eKLR, Kenfreight (EA) Limited v Benson K. Nguti [2016] eKLR, Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR, Anthony Mkala Chitavi v Malindi Water & Sewerage Company Limited [2013] eKLR, and Loice Otieno v Kenya Commercial Bank [2013] eKLR, urging the Court to find that both substantive and procedural fairness were absent in the termination. 3. The Respondent, on the other hand, filed submissions advancing a case that differed materially from its pleadings and evidence. In those submissions, the Respondent contended that the Claimant was not a monthly employee but a casual employee who was paid on a daily basis whenever work was available. It further submitted that the Claimant was never dismissed but instead ceased reporting to work after requesting time to obtain a medical certificate and was subsequently found working elsewhere. 4. In support of that argument, the Respondent relied principally on Angeline Musali Mutua v Vegpro (K) Ltd, ELRC Cause No. 685 of 2015 (Judgment delivered on 29th April 2020) and Section 47(5) of the Employment Act to argue that the Claimant failed to prove unlawful termination. 5. A notable feature of the Respondent's case is that its written submissions depart significantly from both its pleaded defence and the evidence of its witness. Whereas the Statement of Response expressly admits that the Claimant was employed from 2nd September 2018 to 7th March 2022 and that the employment was terminated on account of repeated absenteeism amounting to gross misconduct, the written submissions introduce an entirely different case that the Claimant was merely a casual employee whose employment was never terminated. 6. Similarly, while the Respondent's witness states that the Claimant continued working until 7th March 2022, the written submissions suggest that he ceased working much earlier after being found working elsewhere. 7. The Court shall return to these inconsistencies in determining the issues arising in this dispute. **Issues for Determination** 1. Having considered the pleadings, evidence and submissions, the issues falling for determination are: 2. Whether the Respondent's written submissions are consistent with its pleadings and evidence, and the effect of any inconsistency. 3. Whether the termination of the Claimant's employment was substantively and procedurally fair. 4. Whether the Claimant is entitled to the remedies sought. 5. Who should bear the costs of the suit. **Analysis and Determination** Whether the Respondent's Written Submissions are Consistent with its Pleadings and Evidence 1. Before considering the legality of the termination, the Court considers it necessary to address an inconsistency that emerges from the Respondent's case. 2. The Respondent's Statement of Response expressly admits that the Claimant was employed as a Machine Tool Operator from 2nd September 2018 until 7th March 2022. The Respondent's pleaded defence is that the Claimant repeatedly absented himself from work without permission despite several warnings and that his employment was consequently terminated for gross misconduct. 3. Similarly, the Respondent's witness, Silas Wafula, depones that although the Claimant left work without permission on two occasions and was verbally reprimanded, he apologised on each occasion and continued working until 7th March 2022. 4. However, in its written submissions, the Respondent advances an entirely different factual case. It submits that the Claimant was merely a casual employee paid on a daily basis, that he requested time to obtain a medical certificate, was thereafter found working elsewhere, and that his employment was never terminated. 5. The Respondent relied on Angeline Musali Mutua v Vegpro (K) Ltd, ELRC Cause No. 685 of 2015 (Judgment delivered on 29th April 2020) in support of that argument. 6. The Court observes that this argument was neither pleaded in the Statement of Response nor supported by the evidence of the Respondent's witness. 7. It is now settled law that parties are bound by their pleadings and that submissions cannot be used to introduce a new case or amend pleadings. Submissions merely assist the Court in analysing the evidence already on record; they do not constitute evidence. 8. Consequently, the Court finds that the Respondent's submissions, to the extent that they seek to recast the Claimant as a casual employee whose services were never terminated, cannot supersede the Respondent's pleaded defence and evidence. The Court shall therefore determine this dispute on the basis of the pleadings and evidence tendered during the proceedings. 9. The authority of Angeline Musali Mutua v Vegpro (K) Ltd, relied upon by the Respondent, is distinguishable on the facts of this case because the Respondent itself admitted the existence of an employment relationship running from 2nd September 2018 to 7th March 2022 and defended the termination on the ground of misconduct. Whether the Termination was Substantively Fair 1. The Claimant submits that he was verbally informed by his supervisor that his services were no longer required and that no reason was given for the decision. 2. The Respondent, on the other hand, pleaded that the Claimant repeatedly absented himself from work without permission and that despite repeated warnings he failed to reform, thereby justifying dismissal for gross misconduct. 3. The burden imposed upon an employer by Section 43 of the Employment Act is to prove the reason or reasons for termination, while Section 45 requires the employer to establish that those reasons were valid and fair. 4. In support of his submissions, the Claimant relied on Walter Ogal Anuro v Teachers Service Commission [2013] eKLR, Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR, and Anthony Mkala Chitavi v Malindi Water & Sewerage Company Limited [2013] eKLR, all of which emphasise the employer's obligation to demonstrate a valid and fair reason for termination. 5. The Respondent's evidence on the alleged misconduct consists solely of the witness statement of Silas Wafula. The witness states that the Claimant left work without permission on two occasions and that he was verbally reprimanded before apologising and resuming his duties. 6. Beyond those assertions, however, the Respondent did not produce: attendance registers; clocking records; leave registers; warning letters; disciplinary records; duty rosters; occurrence reports; or any documentary evidence demonstrating repeated absenteeism. 7. No documentary evidence was produced to corroborate the allegation that the Claimant persistently absented himself from work or that his conduct had disrupted the Respondent's operations. 8. The Court notes that employment records are ordinarily maintained by the employer. The Respondent, having alleged repeated absenteeism over a considerable period, was expected to produce the relevant employment records to substantiate that allegation. 9. Further, the Respondent's own witness acknowledged that after each alleged incident the Claimant apologised and continued working until 7th March 2022. No evidence was produced linking those earlier incidents with the ultimate decision to terminate his employment. 10. The Court therefore finds that the Respondent failed to discharge the statutory burden placed upon it by Section 43 of the Employment Act. Accordingly, the Court finds that the Respondent failed to establish a valid and fair reason for terminating the Claimant's employment. Whether the Termination was Procedurally Fair 1. Even assuming that absenteeism constituted a valid ground for disciplinary action, the Respondent was still required to comply with the mandatory procedure prescribed under Section 41 of the Employment Act. 2. The Claimant's evidence is that: he was never issued with a notice to show cause; he was never informed of the allegations against him; he was never invited to a disciplinary hearing; he was never afforded an opportunity to respond; and he was summarily informed that his services were no longer required.The Respondent did not produce any evidence demonstrating compliance with Section 41. 3. In particular, there is no evidence of: a notice to show cause; disciplinary proceedings; minutes of any disciplinary hearing; an invitation to attend a disciplinary hearing; notification of the right to be accompanied by a fellow employee or union representative; or a written termination letter. 4. The Claimant relied on Kenfreight (EA) Limited v Benson K. Nguti [2016] eKLR and Loice Otieno v Kenya Commercial Bank [2013] eKLR, both of which underscore the mandatory nature of the procedural safeguards under Section 41 of the Employment Act. 5. The Court is satisfied that none of those procedural safeguards were observed. 6. Accordingly, the Court finds that the Respondent failed to comply with the mandatory procedural requirements of the Employment Act before terminating the Claimant's employment. 7. The Court therefore concludes that the termination of the Claimant's employment was both substantively and procedurally unfair within the meaning of Sections 43 and 45 of the Employment Act. 8. Having so found, the Court shall now consider the remedies available to the Claimant. **Reliefs Sought** 1. Having found that the termination of the Claimant's employment was unfair, the Court now proceeds to determine the remedies sought. 2. Salary in Lieu of Notice- The Claimant seeks one month's salary in lieu of notice in the sum of Kshs. 19,500/=. The Court has found that the Respondent terminated the Claimant's employment without establishing a valid reason and without complying with the mandatory procedure under Section 41 of the Employment Act. There is equally no evidence that the Claimant was issued with notice of termination or paid salary in lieu thereof. Accordingly, the Claimant is entitled to one month's salary in lieu of notice. 3. Compensation for Unfair Termination- The Claimant seeks the equivalent of twelve months' salary as compensation. In urging the Court to grant compensation, the Claimant relied on Walter Ogal Anuro v Teachers Service Commission [2013] eKLR, Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR, and Anthony Mkala Chitavi v Malindi Water & Sewerage Company Limited [2013] eKLR. The Court has considered the factors set out under Section 49(4) of the Employment Act, including: the length of service; the manner in which the employment was terminated; the Respondent's failure to comply with the mandatory statutory procedure; the complete absence of documentary evidence supporting the allegations of absenteeism; and the Respondent's inconsistent position in its pleadings, evidence and submissions. The Court has also taken into account that the Claimant served the Respondent for approximately three years and six months. In the circumstances, an award equivalent to five (5) months' gross salary is fair and reasonable. 5× Kshs.19,500 = Kshs.97,500. 1. House Allowance- The Claimant seeks Kshs.122,850 being unpaid house allowance. The Respondent denied liability and, in its written submissions, argued that the Claimant's salary exceeded the prescribed minimum wage and was therefore inclusive of house allowance. In support of that argument, the Respondent relied on Angeline Musali Mutua v Vegpro (K) Ltd. The Court observes that although the Claimant pleaded that he was not paid house allowance, no contract of employment or pay slips were produced demonstrating whether the salary of Kshs.19,500 was exclusive or inclusive of house allowance. The burden rested upon the Claimant to establish the factual basis of this claim. In the absence of sufficient evidence, the Court is unable to make the award sought. The claim for house allowance is therefore dismissed. 2. Annual Leave- The Claimant pleaded that throughout his employment he was never granted annual leave. The Respondent merely denied the claim but did not produce any leave records. Section 74 of the Employment Act obligates an employer to maintain leave records. Once an employee asserts that leave was not granted, the evidential burden shifts to the employer to produce the statutory records. No such records were produced. The Court is therefore persuaded that the Claimant was not accorded his statutory leave. However, the computation pleaded was neither explained nor supported by evidence demonstrating how it was arrived at. The Court therefore awards leave based on the statutory entitlement proved by the evidence. 3. Overtime- The Claimant claims Kshs.4,436,712 for overtime allegedly worked over the entire period of employment. He contends that he worked four additional hours every day. Although the Claimant relied on the Regulation of Wages Order in support of this claim, no attendance registers, work schedules, clock-in records, duty rosters or other evidence demonstrating the hours actually worked were produced. The Court appreciates that employment records are ordinarily maintained by the employer. Nevertheless, overtime remains a specific monetary claim which must be proved with reasonable certainty. The evidence presented is insufficient to enable the Court verify the period, frequency and number of overtime hours allegedly worked. Accordingly, the claim for overtime fails. 4. Service Pay- The Claimant seeks service pay. The Respondent denied liability. The Claimant alleged that statutory deductions were not remitted but did not produce any evidence from the National Social Security Fund demonstrating non-remittance. Neither did he produce evidence showing that he fell outside the statutory schemes contemplated under Section 35(6) of the Employment Act. The claim therefore fails. 1. NHIF Contributions- The Claimant sought Kshs.21,000 under the head of unpaid NHIF contributions. No documentary evidence was produced showing that NHIF deductions were made but not remitted or that the Claimant personally settled any unpaid NHIF contributions. The claim is accordingly dismissed. 2. Certificate of Service- Section 51 of the Employment Act obligates every employer to issue an employee with a certificate of service upon termination unless the employment lasted less than four consecutive weeks. The Respondent admitted that the Claimant served from 2nd September 2018 until 7th March 2022.The Claimant is therefore entitled to a certificate of service. **Disposition** 1. In the result, judgment is entered for the Claimant against the Respondent as follows: 2. One month's salary in lieu of notice 19,500 3. Compensation (5 months' salary) 97,500 4. Accrued leave pay 19,500 Total Award 136,500 1. The claims for: House allowance; Overtime; Service pay; and NHIF contributions are declined for want of sufficient proof. **Final Orders** 1. Accordingly, the Court makes the following orders: 2. A declaration is hereby issued that the termination of the Claimant's employment by the Respondent was unfair and unlawful within the meaning of Sections 41, 43 and 45 of the Employment Act, 2007. 3. Judgment is entered in favour of the Claimant against the Respondent in the sum of Kshs.136,500. 4. The Respondent shall issue the Claimant with a Certificate of Service within thirty (30) days from the date of this judgment pursuant to Section 51 of the Employment Act. 5. The award shall attract interest at court rates from the date of this judgment until payment in full. 6. The Claimant shall have the costs of the suit. It is so ordered. **DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOSFT TEAMS AT MOMBASA THIS 30TH JULY 2026.** **……………………………………………….** **EMILY M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**