Kenya National Private Workers Union v Khagrams (Cause E058 of 2024) [2026] KEELRC 1577 (KLR) (11 June 2026) (Judgment)

Kenya National Private Workers Union v Khagrams (Cause E058 of 2024) [2026] KEELRC 1577 (KLR) (11 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1577 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nakuru Cause E058 of 2024 AN Mwaure, J June 11, 2026 Between Kenya National Private Workers Union Claimant and Mr Sanjeev Khagrams Respondent Judgment Introduction 1.The Claimant commenced this suit via Memorandum of Claim on behalf of the grievant dated 13th September 2024, seeking the following orders that:a.The Honourable court does find and establish that the dismissal of the Claimant was unlawful.b.After establishing the unfairness by the Respondent, the Honourable court be pleased to order for a remedy in terms of payment as hereunder:i.1-month salary in lieu of notice Kshs.19,502.85ii.Annual leave for 15 years Kshs.182,382.59iii.Rest days for 3 years Kshs. 81,403.20iv.Underpayment for 5 years Kshs.138,185.65v.Gratuity for 23 years Kshs.269,139.30vi.Overtime Kshs.281,341.80vii.Public holidays Kshs.42,906.30Grand Total Kshs.1,014,861.69c.Compensation for unfair termination Under section 49(1)(c) of the Employment Act - Kshs. 234,034.20d.The Respondent to issue the Claimant with a certificate of service in the meaning of section 51 of the Employment Act.e.The Respondent to pay the cost of this suitf.The Respondent to refund to the Claimant money deducted towards NHIF remittance but was not remittedg.Any other award this court may deem fit to grant. Claimant’s case 2.The Claimant avers that the grievant, Mr. Albert Okoth Alicho, was employed as a night security guard by the Respondent’s family in January 2001 and was assigned to duties at the family’s residential house situated in the Milimani area of Nakuru. 3.The Claimant avers that the grievant used to work from 6:00pm to 6:00am doing 12 hours per day. 4.The Claimant avers that the grievant was initially earning Kshs.5,000/= per month, and at the time of termination his exit salary was Kshs.16,000/= per month. 5.The Claimant avers that the grievant after completing his shift on 30th January 2024, he reported to work but was feeling unwell and sought treatment at Nakuru County Referral & Teaching Hospital, where he was examined and given medication. 6.When the grievant later attempted to resume duty, the Claimant avers that the caretaker barred him from entry on instructions of the Respondent, and another person had already taken his place. Efforts by the Claimant to convene meetings with the Respondent repeatedly failed due to defaults and postponements, frustrating conciliation. 7.The Claimant claims long‑standing violations of the grievant rights, including non‑payment of housing allowance, overtime, and other entitlements, and asserts that the Respondent failed to follow due process under section 41(1) of the Employment Act 2007 in terminating him. 8.The Claimant emphasizes that the lack of terminal benefits caused the grievant hardship despite his clean 23‑year record, and contends that the dismissal contravened Article 41 of the Constitution and statutory provisions such as sections 30 and 35 of the Employment Act 2007, since his health was improperly used as a basis for rejection and no notice was issued. Respondent’s memorandum of defence 9.In opposition of the Memorandum of Claim, the Respondent filed a memorandum of defence dated 4th December 2024. 10.The Respondent denies employing the grievant and asserts that he was instead employed by the Respondent’s late father, Kantilal D. Khagram, who passed away in October 2019, with the Respondent only acting as one of the executors of the estate. 11.The Respondent avers that the Claimant’s locus standi, arguing that the suit is an abuse of court process and should be struck out with costs. 12.The Respondent denies all allegations of termination, employment violations, and entitlement to reliefs or sums claimed, including the figure of Kshs.1,014,861.69/= and compensation of Kshs.234,034.20/=. 13.Additionally, the Respondent contends that any claims predating 1st February 2022 are time‑barred and therefore prays that the entire claim be dismissed with costs. Claimant’s evidence in court 14.CW1, the Claimant, adopted his written statement dated 13th September 2024 together with his bundle of documents dated even date marked as exhibits 1 to 10 and a further list of documents dated 3rd April 2025 marked as exhibits 11 to 13 as his evidence in chief. 15.CW1 testified that he was never paid overtime, never granted rest days, and was not compensated for work done on public holidays. He stated that throughout his employment he worked continuously without taking leave. He confirmed that he had been engaged by the Respondent from 2001 until his termination in 2024. According to him, he was dismissed after falling ill and seeking medical treatment, despite the Respondent being aware of his condition. When he attempted to resume duty, he was informed that another employee had been engaged in his place. 16.CW1 maintained that he had medical reports to support his illness at the time. He further stated that his salary began at Kshs.5,000/= and was later raised to Kshs.16,000/=, which remained below the statutory minimum wage for security guards, amounting to persistent underpayment. 17.In cross‑examination, CW1 stated that he was initially employed by Khagram(senior), who later passed away, and subsequently was employed by Kantilal Khagram the son. He stated that there is a clear claim and maintained that he served under Sanjeev Khagram, whom he described as the commander of the organisation and son of Khagram(senior). CW1 averred that he had evidence of his employment, including salary payments received directly from Sanjeev, supported by Safaricom statements. He confirmed that he was dismissed on 30th January 2024 after seeking medical treatment and attempting to report back to work. 18.CW1 further stated that he had a receipt from Nakuru County Hospital dated 28th February 2024 showing he was treated there. He explained that he had informed Mr. Momanyi, who was close to the Respondent, about his illness, but Momanyi declined to testify on his behalf. CW1 added that he knew Mr. Onyiri, the union boss in Nakuru, but was unaware of any recognition agreement between the union and the employer. He confirmed that he paid union dues discreetly to avoid his employer’s knowledge. He also acknowledged the existence of a muster roll to record workers’ attendance but admitted that he did not produce it in court. 19.In re‑examination, CW1 clarified that he had sued Khagram and referred to paragraph 4 of the defence, where the Respondent acknowledged that he was employed by the Respondent’s late father, for whom Sanjeev now acts as executor. CW1 reiterated that it was Sanjeev who dismissed him in October 2019 and that thereafter he continued to be paid by Sanjeev in his capacity as executor of the estate. 20.CW1 emphasized that he had produced evidence showing Sanjeev was his employer. CW1 further stated that although he was aware of the muster book, it was retained by the employer and not available to him. He confirmed that he was a union member and regularly paid union dues. He also testified that he had letters proving he was unwell and under medical treatment, specifically indicating he suffered from liver problems, which explained his condition at the time of dismissal. 21.The Respondent did not call any witnesses and the court directed parties to file their respective written submissions. Claimant’s submissions 22.The Claimant submitted that the Respondent did not adhere to both substantive and procedural fairness and cited the case of Walter Ogal Anuro V Teachers Service Commission [2013] KEELRC 386 (KLR) the court held that:“….for a termination of employment to pass the fairness test, there must be both substantive justification and procedural fairness. Substantive fairness justification has to do with establishment of a valid reason for the termination while procedural fairness addresses the procedure adopted by the employer in effecting the termination.” 23.The Claimant cited section 43 (1) of the Employment Act which provides that:“In any claim arising out of termination of a contract, the employer shall be required to prove reason or reasons for termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45.” 24.Further, section 45(2) of the Employment Act provides as follows:“A termination of employment by an employer is unfair if the employer fails to prove—(a)that the reason for the termination is valid;(b)that the reason for the termination is a fair reason—(i)related to the employees conduct, capacity or compatibility; or(ii)based on the operational requirements of the employer; and(c)that the employment was terminated in accordance with fair procedure.” 25.The Claimant also cited section 45(4)(b) of the Employment Act which provides as follows:“A termination of employment shall be unfair for the purposes of this Part where:it is found out that in all the circumstances of the case, the employer did not act in accordance with justice and equity in terminating the employment of the employee.” 26.The Claimant cited Section 47(5) of the Employment Act which provides as follows:“For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer.” 27.The Claimant submitted that he was unfairly terminated after falling ill on 30th January 2024, seeking treatment at Nakuru County Referral and Teaching Hospital, and later being barred from duty and replaced without notice or hearing. He argued that the Respondent failed to provide substantive justification or follow procedural fairness as reiterated in sections 41, 43, 45, and 47(5) of the Employment Act 2007, and the case of Walter Ogal Anuro vs Teachers Service Commission(supra) above. 28.The Claimant submitted that the Respondent produced no evidence to rebut the grievant’s testimony or statutory employment records as required under sections 10(7) and 74 of the Employment Act, leaving the evidence unchallenged. Accordingly, the Claimant submitted that the grievant is entitled to all reliefs sought: one month’s salary in lieu of notice under Section 36 of the Employment Act, 15 years’ annual leave under Section 28 of the Employment Act, weekly rest days, underpayments based on Legal Notices No. 2 of 2018 and No. 125 of 2022, public holiday pay, gratuity under Section 17(1) of the Protective Security Services Order, overtime, 12 months’ compensation under section 49(c) of the Employment Act, and a certificate of service under section 51 of the Employment Act, together with costs and interest. Respondent’s submissions 29.The Respondent submitted that in its defence, it argued that the Claimant’s case is unproven, incompetent, and should be dismissed. The Respondent submitted that the Respondent lacked legal capacity to terminate Mr. Albert Okoth Alicho’s employment, since no evidence was produced to show an employer–employee relationship or a valid grant appointing him executor of the late Kantilal D. Khagram’s estate. The Respondent relied on the case of Joseph Muthama Ndambuki & 4 Others V Delmonte (K) Limited [2012] KEHC 4015 (KLR), Olemuteke v Jiwa (Cause 35(A) of 2018) [2023] KEELRC 590, Kenya Union of Commercial Food and Allied Workers V Mwana Black Smith Limited [2013] KEELRC 502 (KLR), and Zarika Adoyo Obondo v Tai Shunjun & Another [2020] KEELRC 772 (KLR), all of which stress that a Claimant must prove the existence of an employment relationship. The Respondent further cited Trouistik Union International & Another v Jane Mbeyu & Another [1993] KECA 89, holding that no person has locus standi to sue on behalf of a deceased’s estate without a grant of representation. 30.The Respondent also challenged the union’s standing, noting the absence of a recognition agreement, and cited the cases of Kenya Union of Employees of Voluntary and Charitable Organisations [KUEVACO] v Board of Governors & Maina Wanjigi Secondary School [2015] KEELRC 1053 (KLR), Kenya Union Pre‑Primary Education Teachers v Secretary Kirinyaga County Public Service Board & 2 Others [2022] KEELRC 307, and Bakery, Confectionery, Food Manufacturing and Allied Workers Union v Dessra Ventures Ltd [2024] KEELRC 13547, all of which held that without recognition, a union lacks locus standi to file trade disputes. 31.On unfair termination, the Respondent submitted that the grievant absconded duty, amounting to gross misconduct under Section 44(4)(a) of the Employment Act 2007, which permits summary dismissal for absence without leave. The Respondent argued that hospital receipts show treatment on 28th February 2024, nearly a month after alleged dismissal, undermining the sickness claim. The Respondent relied on the case of Chandaria v Mungai (Appeal E086 of 2025) [2026] KEELRC 120 (KLR), which observed that the learned Magistrate erred in both law and fact by focusing solely on the Appellant’s alleged failure to track the Respondent after abscondment, while disregarding the Respondent’s legal obligation to notify the employer of any inability to report to work. In doing so, the Magistrate applied double standards requiring the Appellant to prove communication with the Respondent regarding abscondment, yet failing to impose the same burden on the Respondent to demonstrate prior notification of his intended absence. 32.Still in Chandaria v Mungai (Supra) the court cited the case of Ngetich & 9 Others v Nyamongo & 14 Others [2025] KEELRC 7072 (KLR), where it was held that:“This being an adversarial system, the Court is an impartial adjudicator. The court cannot for any reason abandon its position as a neutral arbiter and turn itself into an investigator. Since it is the parties that are responsible for presenting their cases and evidence, there is no room for this court to intervene or help either party to supplement and/or better its case. The role of the court as a neutral arbiter is limited to determining the dispute based on the evidence and arguments presented by each party. A court must not descend into the arena of disputes or assist one party over another by gathering evidence for them, or helping them to do so.” 33.In light of the foregoing, the Respondent submitted that the claim for unfair termination is unsubstantiated and should be dismissed with costs. The grievant admitted during the hearing that he left his post on 30th January 2024 to seek medical treatment, yet the hospital records produced show he was only treated on 28th February 2024 over 28 days later without prior notice or permission from his employer. Such conduct, amounts to desertion of duty. The Respondent relied on Judicial Service Commission v Gladys Boss Shollei [2014] eKLR, which applied the test in British Leyland UK Ltd v Swift [1981] IRLR 91, asking whether a reasonable employer would have dismissed the employee under the circumstances. 34.Further, reliance is placed on Lynus Kiplimo Too v Moi Teaching and Referral Hospital [2020] KEELRC 1915 (KLR), where Justice Abuodha held that the burden of proving unfair termination rests on the employee, while the employer must show that the reasons genuinely existed. The test is that of a reasonable employer, and courts should not substitute their own opinion for that of the employer. 35.On absenteeism, the Respondent relied on the case of Mutula v Kenya Revenue Authority [2024] KEELRC 555 (KLR), which held that absence from work without formal approval amounts to misconduct, regardless of the number of days. 36.Pursuant to section 44(4)(a) of the Employment Act, 2007, absence from work without leave or lawful cause is a ground for summary dismissal, the Respondent submitted that the grievant’s absence without permission provided a fair and valid reason for termination, a position also upheld in Rodgers Titus Wasike v General Motors East Africa Ltd [2020] KECA 529 (KLR) and reaffirmed in Chandaria v Mungai (Supra). 37.In conclusion, the Respondent submitted that the grievant’s dismissal was lawful, procedurally and substantively justified under sections 41, 43, 45, and 44(4)(a) of the Employment Act 2007, and that the Claimant failed to prove locus standi, employment relationship, or unfair termination. The Respondent therefore prays that the entire claim, including reliefs for notice pay, leave, gratuity, overtime, compensation under section 49(1)(c) of the Employment Act, and certificate of service under section 51 of the Employment Act, be dismissed with costs. Analysis and determination 38.The court has considered the pleadings and the submissions on records; the issues for determination are as follows:a.Whether the Claimant has locus standi in this case;b.If (a) above is in the negative; whether the grievant is entitled to the reliefs sought and in particular does he have an employee relationship with the Respondent.c.Who should bear the costs of the suit. 39.In Modern Soap Factory V Kenya Shoe and Leather Workers Union [2020] KECA 4 (KLR) where the Court of Appeal held that a trade union can represent its members in court even without a recognition agreement with the employer. The court emphasized constitutional protections of labour rights and statutory provisions that allow unions to act on behalf of its members. 40.In this instant case, the grievant had engaged his union to get his terminal dues and parties were invited for conciliation meeting vide a letter dated 17th July 2025 but the Respondent did not appear for the said meeting called by the conciliator. The court is of the view that the union has locus standi and it does not need to have a recognition agreement with the employer as the grievant’s rights are protected under constitutional protections of labour rights under Article 41 of the Constitution. 41.For termination of employment to be deemed fair, there must be both substantive justification and procedural fairness as required under Sections 41, 43, and 45 of the Employment Act, as reiterated earlier in this judgment. The court further relies on the case of Walter Ogal Anuro v Teachers Service Commission(Supra), which affirmed that a valid reason and adherence to due process are essential for lawful termination. 42.The court also reiterates section 47(5) of the Employment Act provides that in complaints of unfair termination or wrongful dismissal, the law places a dual burden: the employee must first prove that the termination or dismissal was indeed unfair, while the employer must then justify the grounds for the termination by showing that the reasons were valid, fair, and lawful. In essence, the employee establishes the occurrence of unfair dismissal, and the employer bears the responsibility of proving that the termination complied with the law. 43.In Mary Chemweno Kiptui v Kenya Pipeline Company Limited [2014] KEELRC 905 (KLR) the court stated as follows:“Section 41 of the Employment Act is couched in mandatory terms. Where an employer fails to follow these mandatory provisions, whatever outcome of the process is bound to be unfair as the affected employee has not been accorded a hearing in the presence of their union representative or in the presence of a fellow employee of their own choice. The situation is dire where such an employee is terminated after such a flawed process without a hearing as such termination is ultimately unfair. The employee must be informed through a notice as to the charges and given a chance to submit a defence followed by a hearing in due cognisance of the fair hearing principles as well as natural justice tenets.Under subsection 43 (2) of the Employment Act, 2007, the reason or reasons for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist and which caused the employer to terminate the services of the employee. However, these reason or reasons must be addressed before the termination notice is issued and subjected to a hearing to establish if the employee has a defence that is worth consideration. The reasons should never be given after the termination has taken effect. This would be an outright negation of the purpose, intent and validity of any reason or reasons an employer may have against the affected employee.” 44.In this instant case, the grievant was employed in 2001 by the Respondent’s late father, Kantilal D. Khagram, as a night security guard earning a monthly salary of Kshs.5,000, which was later increased to Kshs.16,000/=. He contends that after falling ill and attempting to resume duty in 2024, he was informed that his services were no longer required. Conversely, the Respondent maintains that the grievant was solely employed by his late father, who passed away in October 2019, and that he himself only acted as one of the Executors of the estate, not as the employer. 45.The Respondent in his response dated 4th December 2024 simply denies he had employed the Claimant. He admits the Claimant was employed by his late father Kantilal D. Khagram who died in 2019. It is however worthy to note that the Claimant continued to work for the family from the death of the Father in 2019 until 2024. 46.The Respondent also admits he is one of the Executors of the Late Father’s Estate. His evidence is scanty as he does not reveal who the other Executors were and their relationship to the Claimant. Claimant being a watchman was not expected to go to details about legal matters like letters of administration and the law of succession. He simply continued working and receiving his salary from the son of the late employer. His expectation was really legitimate that he was an employee in that homestead. 47.In the case of Korir -vs- Mosonik 008 of 2023 where Claimant averred he used to work in the Respondent’s tea farm and was originally employed by the Respondent’s deceased Father.This case was different from the current case where court held that the Claimant failed to prove an employment contract with the deceased’s Father. 48.In the present case, the court is not even seized of any employment contract neither with the deceased Father nor with the son. The Employment Act 2007 defines Contract of Service as “written or oral and whether expressed or implied”. The employer in any event is the one who is obligated to keep the employee’s records as provided in Section 10(7) of the Employment Act 2007. Section 10(7) of the Employment Act provides: -“If in any legal proceedings an employer fails to produce a written contract or the written particulars prescribed in subsection (1) the burden of proving or disproving an alleged term of employment stipulated in the contract shall be on the employer.” 49.The court is therefore satisfied the Claimant was a legitimate employee of the family of the late Kantilal D. Khagram and worked in that homestead from 2019 to 2024 after the death of the first employer. The court is satisfied there is contract of employment therefore. 50.The grievant was unlawfully and unfairly terminated in any event as the Respondent failed to comply with the requirements of Sections 41, 43, and 45(2) of the Employment Act. If dissatisfied with the grievant’s performance, the Respondent was obligated to explain the reasons and accord him a fair hearing in line with Section 41 of the Employment Act, which mandates that before termination on grounds of misconduct, poor performance, or incapacity, the employer must explain the reasons in a language the employee understands and allow representation by another employee or union representative. Furthermore, the court notes that the Claimant seeks compensation for over 23 years of service. However, under section 89 of the Employment Act, any civil action arising from the Act must be instituted within three years of the complained act, or within twelve months in cases of continuing injury. Thus, while termination was procedurally and substantively flawed, the reliefs sought must be considered within the statutory limitation framework. The conclusion of the foregoing in substrum is that, the Claimant has proved a case of unfair and wrongful termination. 51.As to the reliefs, the Grievant is awarded one month’s salary in lieu of notice in accordance with Section 36 of the Employment Act 2007 amounting to Kshs.16,000/=. 52.He also awarded compensation for unfair termination for 10 months which is calculated as follows:16,000X10= 160,000/=.The court has considered the period Claimant worked for this family and the background of his unlawful termination. 53.As for the other prayers for annual leave, weekly payment, public holidays, overtime and gratuity all are neither proved nor provided anywhere specifically. Court does not award reliefs in abstract and so all these are denied. 54.He is also awarded interest at 14% Per annum from the date of judgment till full payment. 55.The National Hospital Insurance Fund deducted are also not shown in any records and so is declined. 56.The total award will be Kshs.176,000/= plus costs to the Claimant.Claimant to be given Certificate of Service within 30 days.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 11TH DAY OF JUNE, 2026.ANNA NGIBUINI MWAUREJUDGEOrderIn view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.A signed copy will be availed to each party upon payment of Court fees.