https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/160

Kilote v Tahmeed Transporters Ltd (Cause E721 of 2024) [2026] KEMC 160 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEMC 160 (KLR) Republic of Kenya In the Mombasa Law Courts Cause E721 of 2024 EM Mwamuye, SRM June 25, 2026 Between Nicodemus Mutio Kilote Claimant and Tahmeed Transporters Limited Respondent Judgment Introduction 1.The Claimant commenced these proceedings through a Statement of Claim dated 5th November 2024 seeking various remedies arising from what he terms as unlawful and unfair termination of employment. He prayed for a declaration that the termination was unlawful and unfair, compensation equivalent to twelve months' salary, notice pay, underpayments, costs and interest. 2.The Respondent filed a Response denying liability and contending that the Claimant was not a permanent employee, that he was paid all his dues and that he was not entitled to the remedies sought. 3.The matter proceeded for hearing afresh on 4th November 2025 when the Claimant testified. The Respondent's case was heard on 2nd March 2026 when its Human Resource Manager, Hassan Said Ahmed, testified. Thereafter parties filed written submissions. The Claimant's Case 4.The Claimant testified that he was employed by the Respondent in August 2022 as a Heavy Commercial Truck Driver. He stated that he worked continuously until 5th September 2024 when he reported to work and was directed to see one Salim Phiroze. 5.According to the Claimant, Salim Phiroze informed him that he had failed in his duties and that due to reduced workload the company would not continue employing him. He was informed that his terminal dues would be calculated and paid. 6.The Claimant contended that the reason advanced amounted to redundancy and that the Respondent did not comply with the requirements of Section 40 of the Employment Act. He further asserted that he was never subjected to any disciplinary process and was never accorded a hearing. 7.He testified that he earned Kshs.30,000 per month, was not provided housing, was never issued with a written contract or pay slips and that he was underpaid throughout his employment. 8.In support of his case he produced, among other documents: Certificate of Service dated 5th September 2024; NSSF statement; Payment breakdown dated 3rd September 2024; Demand letter. The Respondent's Case 9.The Respondent called Hassan Said Ahmed. He testified that he was the Human Resource Manager of the Respondent. He denied the Claimant's allegations and stated that the Claimant's claims were false. 10.He asserted that the Claimant was not employed on a permanent basis and that drivers were engaged on a need basis. He maintained that the Claimant was treated fairly and paid all his dues. 11.During cross-examination, it emerged that the witness only joined the Respondent in the year 2025 after the Claimant had already left employment. He conceded that he did not know the Claimant personally and had not worked with him. 12.The witness further acknowledged that Salim Phiroze was indeed the Respondent's boss. Issues for Determination 13.Having considered the pleadings, evidence and submissions, the following issues arise for determination:i.Whether the Claimant was an employee of the Respondent.ii.Whether the termination of the Claimant's employment was unfair and unlawful.iii.Whether the Claimant proved the claim for underpayment.iv.Whether the Claimant is entitled to the reliefs sought. Analysis and Determination Whether the Claimant was an Employee of the Respondent 14.The Respondent initially denied the employment relationship. However, the evidence before court overwhelmingly establishes that the Claimant was indeed an employee of the Respondent. 15.First, the Claimant produced a Certificate of Service issued by the Respondent dated 5th September 2024 confirming that he worked as a driver from August 2022 to August 2024. 16.Secondly, the NSSF statement produced by the Claimant reflects contributions by the Respondent during the material period. 17.Thirdly, in its written submissions the Respondent expressly acknowledged that the Claimant worked with it between August 2022 and August 2024 as reflected in the Certificate of Service. 18.Most importantly, the Respondent's witness joined the company in 2025 after the Claimant had already left employment and therefore had no personal knowledge of the Claimant's employment. His evidence could not effectively rebut the documentary evidence produced by the Claimant. 19.I therefore find that the Claimant has proved on a balance of probabilities that he was employed by the Respondent between August 2022 and September 2024. Whether the Termination was Unfair and Unlawful 20.The Respondent's principal defence was that there was no redundancy. The Court has carefully examined the evidence. The Claimant's own pleading states that he was informed that: he had failed in his role and because workload had reduced the company would not continue employing him. 21.The Court notes that two reasons were communicated simultaneously: alleged poor performance; and reduced workload. 22.No evidence whatsoever was produced by the Respondent to demonstrate poor performance. No warning letters, appraisal reports, disciplinary notices or disciplinary proceedings were produced. 23.If poor performance was the reason, Sections 41, 43 and 45 of the Employment Act required the Respondent to: explain the allegations; accord the Claimant a hearing; demonstrate valid reasons. No such process was shown. 24.Conversely, the reference to reduced workload points towards an operational reason attributable to the employer. Where termination is occasioned by reduced work, diminished business needs or reorganization, the Employment Act requires compliance with Section 40. 25.The Respondent produced no evidence that: the Labour Officer was notified; the Claimant received redundancy notice; any selection criteria was applied; statutory redundancy procedures were complied with. 26.Indeed, the Respondent's position throughout the proceedings was not that Section 40 was complied with but rather that redundancy never occurred. 27.The Court finds that whichever way the termination is viewed, the Respondent fails: If termination was for poor performance, no procedural or substantive fairness was proved. If termination was due to reduced workload, Section 40 was not complied with. 28.The Respondent bore the burden under Sections 43 and 45 of the Employment Act to justify the termination and failed to discharge that burden. I therefore find that the termination of the Claimant's employment was unfair and unlawful. Whether Underpayment was Proved 29.The Claimant seeks Kshs.301,307.68 as underpayments. The claim is founded on the assertion that he was a Heavy Commercial Vehicle Driver. The burden rested upon the Claimant to establish the category of employment attracting the wage rates relied upon. 30.The Court notes that: The Certificate of Service merely describes him as a driver. No driving licence was produced. No vehicle allocation records were produced. No logbooks were produced. No evidence identifying the category of vehicle driven was produced. 31.While the Court finds that the Claimant was a driver, there is insufficient evidence enabling the Court to conclude that he specifically fell within the category of Heavy Commercial Vehicle Driver contemplated under the Wage Orders relied upon. 32.The claim for underpayment constitutes a claim for special damages and must be specifically proved. 33.Further, there is an inconsistency between the pleaded monthly salary of Kshs.30,000 and the figure of Kshs.25,800 appearing in the computation of underpayments. 34.In the absence of sufficient evidence establishing the applicable wage category and computation, the Court is unable to safely award the underpayment claim. The claim for underpayment therefore fails. Reliefs 35.Declaration- A declaration is hereby issued that the termination of the Claimant's employment was unfair and unlawful. 36.Compensation for Unfair Termination- In assessing compensation under Section 49 of the Employment Act, the Court has considered: the period of service of approximately two years; the absence of any misconduct proved against the Claimant; the Respondent's failure to follow due process; the fact that some terminal dues were paid upon separation. 37.The Court considers an award equivalent to six (6) months' salary reasonable. Using the admitted salary of Kshs.30,000 per month: Kshs.30,000 × 6 = Kshs.180,000/=. 38.Notice Pay- The payment breakdown produced by the Claimant himself indicates payment of one month's notice pay as part of the final dues. The claim for notice pay is therefore declined. 39.Underpayment- Dismissed for want of proof. 40.Costs- The Claimant has substantially succeeded in the claim and is awarded costs. 41.Interest- The awarded sum shall attract interest at court rates from the date of judgment until payment in full. Final Orders 42.Judgment is entered for the Claimant against the Respondent as follows:a.A declaration be and is hereby issued that the termination of the Claimant's employment was unfair and unlawful.b.Compensation for unfair termination: Kshs.180,000c.Claim for notice pay: Dismissed.d.Claim for underpayment: Dismissed.e.Costs of the suit awarded to the Claimant.f.Interest on the decretal sum at court rates from the date of judgment until payment in full.Total Award Kshs.180,000It is so ordered. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOSFT TEAMS AT MOMBASA THIS 25TH JUNE 2026.……………………………………………….EMILY M. MWAMUYESENIOR RESIDENT MAGISTRATE