https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2179

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **CAUSE NO. E319 OF 2021** *(Before Hon. Lady Justice Agnes Kitiku Nzei)* **ROBERT NJUGUNA GITUA CLAIMANT** *VERSUS* **JIANGXI YOUSE CONSTRUCTION** **(GROUP) LIMITED ..RESPONDENT** **JUDGMENT** 1. The Claimant sued the Respondent vide a Memorandum of Claim dated 15th April, 2021 and sought the following reliefs:- 2. *A declaration that the Claimant’s dismissal was unlawful, unjust and discriminative, and that the same amounted to unfair dismissal.* 3. *Wages for 16 days worked in May 2020 ……… Kshs.49,130/=.* 4. *1 month salary in lieu of notice …………… Kshs.89,590/=.* 5. *Unpaid annual leave for the period 1/5/2019 – 30/4/2020 ………… Kshs.75,140/=.* 6. *Underpayment ………………… Kshs.1,377,009/=.* 7. *Compensation for unfair termination ………… 1,054,850/=.* 8. *An order compelling the Respondent to settle outstanding NSSF benefits.* 9. *An order compelling the Respondent to issue the Claimant with a certificate of service.* 10. *Service pay.* 11. *Costs and interest.* 12. The Claimant pleaded:- 13. *that he was employed by the Respondent as a driver at the Respondent’s West Pokot-Kacheliba construction site from 1st May, 2019 to 17th May, 2020.* 14. *that without any lawful justification, the Respondent terminated the Claimant’s employment on false allegations of theft.* 15. *that the abrupt termination of the Claimant’s employment was unprocedural, and was without a justifiable reason.* 16. *that the Claimant was underpaid by the Respondent in that he was paid at an hourly rate of Kshs.85/= instead of Kshs.361.25 as provided for by law.* 17. *that termination of the Claimant’s services was done without a warning letter and without an official complaint, in violation of the Claimant’s constitutional right to dignity.* 18. *that termination of the Claimant’s employment was done in bad faith, and was actuated by malice.* 19. Documents filed alongside the Claimant’s Memorandum of Claim included the Claimant’s witness statement dated 15th April, 2021, and an evenly dated list of documents. The listed documents were the Claimant’s NSSF monthly contribution statement and a demand letter. 20. The Respondent defended the suit vide a Memorandum of Response dated 5th May, 2025, and denied the Claimant’s claim. The Respondent further pleaded:- 21. *that the Claimant was not employed by the Respondent on permanent basis, but would be given assignments depending on the availability of work and funding for ongoing road construction projects by the Government of Kenya.* 22. *that the Respondent periodically engages short-term contract workers upon successful award of tenders for specified road construction projects for an unspecified period of time on certain terms and conditions agreed between the parties.* 23. *that the Claimant’s claim for alleged salary, hourly rate, underpayment and other alleged dues and entitlements is meant to unfairly enrich the Claimant.* 24. *that the Claimant is a member of the National Social Security Fund, and is not eligible for service pay, as per the provisions of* ***Section 35(6)(d) of the Employment Act****.* 25. *that the Employment Act provides for summary dismissal of an employee based on reasonable and sufficient suspicion of a criminal offence having been committed against the employer or the employer’s property.* 26. A witness statement of **Qichao Liu** and the Respondent’s list of witnesses dated 5th May, 2025 were filed alongside the Respondent’s Memorandum of Response. 27. Trial opened before me on 3rd December, 2025, and was conducted and concluded on the same date. The Claimant testified and adopted his filed witness statement and produced in evidence the documents referred to in paragraph 3 of this Judgment. The Claimant emphasised that he was not given a termination notice, was not given an opportunity to be heard; and was therefore unlawfully terminated. 28. Cross-examined, the Claimant testified:- 29. *that he was employed on 1st May, 2019 and was terminated on 17th May, 2020. That he had not produced any document in that regard, but had produced an NSSF statement as proof of that.* 30. *that he was being paid Kshs.85/= per hour instead of Kshs.361.25, and was being paid using a Job Card which he was only given to sign and was kept by the employer. That employees were not allowed to keep the card.* 31. *that the NSSF statement produced in evidence by the Claimant indicated payments (contributions) from April 2019 to March 2020.* 32. *that the months showing non-contribution is because the employer did not remit the contributions.* 33. *that the Claimant was driving a heavy-duty lorry at various sites where the Respondent was working, and never took leave. That he worked even during Covid time; and worked from 8.00 a.m to 7.00 p.m.* 34. *that the Claimant was being paid in cash.* 35. Re-examined, the Claimant testified that he submitted his driving licence to his employer, that being the reason why they agreed to employ him as a heavy-duty vehicle driver. That the Claimant was not given a written contract by the Respondent. That the contract was oral. The Claimant further testified that he was working even during the months when the Respondent did not remit his NSSF contributions. 36. The Respondent called one witness, **Qichao Liu (RW-1),** who told the Court that he was the Respondent’s Manager. He adopted his filed witness statement as his testimony. The witness told the Court that the Respondent had both permanent and temporary employees, and that it paid its workers through the bank. 37. Cross-examined, **RW-1** testified:- 38. *that he was a director of the Respondent company, and also the Manager; though he had not exhibited any documents to demonstrate that.* 39. *that he* ***(RW-1)*** *never saw the Claimant, and that the Respondent had an HR Department which was employing people to work. That it was the HR who could testify on the Claimant.* 40. *that employees were paid through the bank and payslips. That the Respondent had* ***not*** *exhibited any documents in that regard.* 41. *that the witness* ***(RW-1)*** *did* ***not*** *know whether any report had been filed with the police. That it was the HR which could issue show cause letters.* 42. Having considered the pleadings filed herein and the evidence presented by both parties, issues that fall for determination, in my view, are as follows:- 43. ***Whether the Claimant was employed by the Respondent, and earned a salary as pleaded by him.*** 44. ***Whether the Claimant was unfairly terminated by the Respondent.*** 45. ***Whether the reliefs sought are available to the Claimant.*** 46. On the first issue, the Respondent pleaded, **at paragraph 9** of its Memorandum of Response, ***inter-alia,*** that:- **“. . . the Claimant was not employed by the Respondent on a permanent basis, but would be given assignments depending on the availability of work and funding for ongoing road construction projects . . .”** 1. It is clear from the foregoing pleading that the Claimant was, indeed, employed by the Respondent. None of the parties, however, produced in evidence **a written contract between the two parties, setting out the terms and conditions of the Claimant’s employment**. The Claimant testified that the contract was **oral**. The Respondent did not deny having remitted the Claimant’s NSSF contributions during the pleaded period of employment as per the NSSF statement produced in evidence. The absence of a written contract cannot vitiate or invalidate the employer-employee relationship that existed between the Claimant and the Respondent. 2. As to the terms of the oral contract of employment, Section 9(2) of the Employment Act obligates an employer to cause an employment contract to be drawn up, **stating particulars of the employment**, and to be consented to by the employee in accordance with subsection (3) of the said Section. 3. Section 10(7) of the Employment Act states as follows:- ***“(7) If in any legal proceedings an employer fails to produce a written contract or the written particulars prescribed in sub-section (1), the burden of proving or disproving an alleged term of employment stipulated in the contract shall be on the employer.”*** 1. The Respondent’s witness **(RW-1)** testified that he had **not** seen (delt with) the Claimant, and that there was an HR Department in the Respondent Company that would employ people to work, and that it was the said department that would issue show cause letters. The Respondent did not call any witness from its said department, and did not produce any employment records in rebuttal of the Claimant’s pleadings and evidence. 2. I make a finding that the Claimant was employed by the Respondent and earned a salary as pleaded and testified by him. 3. On the second issue, the Claimant pleaded and testified that his employment was on 17th May, 2020 abruptly terminated by the Respondent on false allegations of theft. The Respondent did **not** rebut the Claimant’s evidence in that regard. Indeed, **RW-1** testified that he did not know whether the matter was reported to the police. 4. Under Section 44(4)(g) of the Employment Act, an employee reasonably and sufficiently suspected to have committed a criminal offence against his employer or the employer’s property commits a gross misconduct, and can be summarily dismissed. On the other hand, an employer contemplating dismissal of an employee for misconduct **must** comply with the mandatory procedure set out in **Section 41 of the Act**. The Respondent is not shown to have complied with the said procedure. The Court of Appeal stated as much in the case of **Benson K. Nguti – vs – Kenfreight [E.A] Limited [2014] eKLR**. 5. Further, the reason for the Claimant’s termination was not proved by the Respondent pursuant to **Sections 43(1) and 45(2)(a) of the Employment Act**. 6. I return a finding that termination of the Claimant’s employment by the Respondent was substantially and procedurally unfair. 7. On the third issue, and having made a finding that termination of the Claimant’s employment was unfair, **I award the Claimant the equivalent of five (5) months’ salary being compensation for unfair termination of employment**. The Claimant pleaded and testified that he was earning a monthly salary of **Kshs.89,590/=**. This was **not** rebutted by the Respondent. I accept the said figure of **Kshs.89,590/=** as having been the Claimant’s monthly salary as the Respondent’s heavy duty lorry driver. The equivalent of five months’ salary is **Kshs.447,950/=**, which I award to the Claimant. 8. The claim for **Kshs.49,130/=** being wages/payment for 16 days worked in May 2020 was not disputed by the Respondent, and is allowed. 9. The claim for **Kshs.89,590/=** being one month salary in lieu of notice is allowed; pursuant to **Section 35(1)(c) of the Employment Act**. 10. The claim for **Kshs.75,140/=** being unpaid leave days is allowed. Although **Section 74(1)(g) of the Employment Act** obligates the Respondent (the employer) to keep employees’ leave records, days taken and days due, no records were presented in Court by the Respondent in rebuttal of the Claimant’s claim for unpaid leave days. 11. The claim for underpayment was **not** proved, and is declined. It is trite that special damages mut always be specifically pleaded and strictly proved. 12. The claim regarding unremitted NSSF contributions is declined. The National Social Security Fund (NSSF) is a statutory body with adequate statutory mechanisms to follow up on deducted but **unremitted** employees’ contributions. Such mechanisms include prosecutorial powers. 13. The claim for service pay is declined. Having been an NSSF contributor (member), the Claimant is, by dint of **Section 35(6)(d) of the Employment Act**, disqualified from claiming service pay. 14. The prayer for issuance of a certificate of service is allowed pursuant to Section 51 of the Employment Act. 15. In sum, and having considered written submission filed on behalf of both parties herein, Judgment is hereby entered for the Claimant against the Respondent as follows:- 16. **Compensation for unfair termination of employment …………………………………………………. Kshs.447,950/=.** 17. **Days worked in May 2020 ……………… Kshs. 49,130/=.** 18. **Notice pay ………………………………….. Kshs. 89,590/=.** 19. **Leave pay …………………………………… Kshs. 75,140/=.** **Total …………………… Kshs.661,810/=.** 1. The awarded sum shall be subject to Pay As You Earn **(PAYE)** pursuant to Section 49(1) of the Employment Act. 2. The Respondent shall issue the Claimant with a Certificate of Service within thirty days of this Judgment, pursuant to Section 51 of the Employment Act. 3. The Claimant is awarded costs of the suit. 4. The Judgment sum shall attract interest at Court rates, from the date of this Judgment until payment in full. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS** **24TH DAY OF JULY 2026** **AGNES KITIKU NZEI** **JUDGE** **ORDER** This Judgment has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court fees. **AGNES KITIKU NZEI** **JUDGE** Appearance: No appearance for the Claimant Miss Maigwa for the Respondent