https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/810

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT MOMBASA** **MAGISTRATES COURT CIVIL** **MCELRC CAUSE NO. E438 OF 2025** **LYDIA LORNA...........................................................................................CLAIMANT** **VERSUS** **COFFTEA LIMITED...........................................................................1ST RESPONDENT** **TRADCO SERVICES........................................................................2ND RESPONDENT** **JUDGEMENT** **Background** 1. The Claimant, instituted these proceedings against the 1st and 2nd Respondents respectively, vide a Memorandum of Claim dated 28th May 2025. She contends that her employment was unlawfully and unfairly terminated and seeks various terminal dues and compensation arising therefrom. 2. The Claimant pleaded that the Respondents are limited liability companies trading in Kenya and that they were her employers. Her case is that the 2nd Respondent was the agency which recruited her to work for the 1st Respondent. 3. The Claimant averred that she was engaged as a merchandiser and was assigned duties within the Coast region. Her work entailed visiting supermarkets, including Naivas, Chandarana and Quickmart, among others, to ascertain whether the relevant goods were displayed on shelves and thereafter submitting reports to the 2nd Respondent. She stated that she worked for the Respondents for approximately nine months, from January 2023 until September 2023. 4. According to the Claimant, she sought and obtained permission from her immediate supervisor, one Florence Mburu, to travel to Siaya County to attend a family event. Upon returning, however, she was informed that her services had been terminated and was sent home. 5. She contends that she was neither issued with notice of termination nor paid salary in lieu thereof. She further states that she was not informed of any wrongdoing attributed to her, was not issued with a warning or notice to show cause and was not accorded an opportunity to be heard. Instead, she was given a clearance form to complete as part of her exit from employment. 6. The Claimant further averred that, during the nine months she worked for the Respondents, she did not utilise her annual leave and worked during public holidays without compensation. 7. She consequently sought the following reliefs: One month's salary in lieu of notice – KShs. 33,360; Payment for public holidays – KShs. 22,240; Compensation/damages for unlawful termination – KShs. 400,320; Annual leave – KShs. 25,020; Total – KShs. 480,940; Certificate of service; Costs; and any other relief that the Court may deem fit. The reliefs were maintained in the Claimant’s written submissions. Evidence 1. The Claimant filed a witness statement in which she substantially reiterated the contents of her Memorandum of Claim. She maintained that the 2nd Respondent recruited her to work for the 1st Respondent and that she was paid a monthly salary of KShs. 33,360. She reiterated that her immediate supervisor was Florence Mburu and that she had obtained permission from her before travelling to Siaya. 2. The Claimant further produced documentary evidence including her employmnt contract, demand letter, clearance documentation and employment records. The written employment contract is particularly significant. It was issued by the 2nd Respondent, Tradco Services Limited, and identifies the Claimant's position as that of a Merchandiser. The contract provided for 48 working hours per week spread over six days with one paid rest day. It further provided for 21 working days' annual leave in each calendar year. 3. The contract contained an initial probationary period of three months and provided for termination after probation upon one month's written notice or payment of one month's salary in lieu thereof. 4. The contract further appears to state that the Claimant's employment commenced on 1st January 2023 and would expire on 31st January 2024. The Claimant's evidence that her employment ended in September 2023 therefore means that the relationship came to an end before the stated expiry date of the contract. 5. There is, however, an important discrepancy concerning the Claimant's remuneration. Whereas she pleaded and testified that she earned KShs. 33,360 per month, the written contract records a gross monthly salary of KShs. 21,000, comprising: Basic salary – KShs. 17,000; Communication allowance – KShs. 1,000; and Transport allowance – KShs. 3,000. The written contract is the primary documentary evidence of the agreed remuneration. The documentary evidence further includes a clearance form from Tradco Services completed in connection with the Claimant's exit from employment. 6. Prior to filing suit, the Claimant instructed Kituo Cha Sheria Legal Advice Centre, which issued a demand letter dated 28th September 2023 to both Respondents. The demand alleged unfair termination and sought KShs. 475,618.29. The amounts in the demand letter were not identical to those eventually pleaded. In particular, the demand sought KShs. 28,594.29 for annual leave and KShs. 13,344 for holidays, whereas the Memorandum of Claim seeks KShs. 25,020 and KShs. 22,240 respectively. Proceedings 1. The matter proceeded to formal proof. The Respondents did not tender evidence controverting the Claimant's account. The Claimant consequently submitted that her evidence remained unchallenged and that she had discharged the burden imposed upon her. 2. It must nevertheless be emphasised that a matter proceeding undefended does not relieve a claimant of the legal and evidential burden of proving the claim. 3. In Samson S. Maitai & Another v African Safari Club Ltd & Another [2010] eKLR, cited by the Claimant, the Court recognised that even at formal proof, proof means evidence sufficient to satisfy the Court as to the truth of the facts asserted. 4. This Court must therefore interrogate the evidence placed before it and determine whether each claim has been proved notwithstanding the absence of evidence from the Respondents. **Issues for Determination** 1. Having considered the pleadings, evidence, documents and written submissions, I find that the following issues arise for determination: 2. Whether an employment relationship existed between the Claimant and the Respondents; 3. Whether the termination of the Claimant's employment was substantively and procedurally fair; 4. Whether the Claimant is entitled to the reliefs sought; and 5. Who should bear the costs of the suit. Whether an Employment Relationship Existed 1. The Claimant pleaded that both Respondents were her employers. She explained that the 2nd Respondent recruited her to work for the 1st Respondent. The documentary evidence establishes beyond controversy that there was an employment relationship between the Claimant and the 2nd Respondent. The employment contract was issued by Tradco Services Limited and describes the Claimant as its employee. 2. The employment records accompanying the contract, including the employee checklist, personal information documentation and clearance documentation, further demonstrate that the Claimant was formally engaged through Tradco Services Limited. 3. The position regarding the 1st Respondent is less straightforward. The Claimant's case is that Tradco recruited her for purposes of rendering merchandising services to Cofftea Limited. No separate employment contract between the Claimant and Cofftea Limited was produced. 4. Nonetheless, the Claimant's uncontroverted evidence is that she was recruited by the 2nd Respondent to perform work for the 1st Respondent. The pre-suit demand was similarly addressed to both Respondents. 5. For purposes of the present dispute, what is beyond dispute is that the Claimant was employed under the written Tradco contract and deployed to undertake merchandising duties. Her contractual employer demonstrated by the documentary record was therefore the 2nd Respondent. Whether the Termination Was Unfair 1. The Employment Act imposes both substantive and procedural requirements upon an employer terminating an employee's employment. Section 43 requires an employer to prove the reason or reasons for termination. Section 45 requires that the reason be valid and fair. Section 41, where applicable, prescribes the procedural safeguards to be observed before termination on grounds relating to misconduct, poor performance or physical incapacity. 2. The distinction between procedural and substantive fairness was discussed in Pius Macha Isundu v Lavington Security Guards Limited [2017] eKLR, an authority relied upon by the Claimant. The Claimant's authorities correctly recognise that an employer is required to establish the reason for termination and comply with the procedural safeguards prescribed by law. 3. Similarly, the authority of Kuria v Cooperative Bank of Kenya Limited [2025] KEELRC 470 (KLR) contained in the Claimant's bundle reiterates that termination must satisfy the dual requirements of substantive justification and procedural fairness. Substantive Fairness 1. The Claimant's evidence is straightforward. She travelled to Siaya County for a family event after obtaining permission from Florence Mburu, whom she identified as her immediate supervisor. When she returned, she was informed that her services had been terminated. No termination letter was produced before the Court identifying the reason for termination. 2. There is equally no notice to show cause, warning letter, disciplinary record or other document demonstrating the misconduct, poor performance, incapacity or operational reason upon which the Respondents terminated the Claimant's employment. 3. The Respondents did not participate in the evidentiary proceedings and consequently tendered no evidence establishing the reason for the termination. 4. Section 47(5) of the Employment Act places upon an employee the burden of proving that an unfair termination occurred, while the employer bears the burden of justifying the grounds for termination. 5. The Claimant has established that she was employed, that her employment came to an end before the contractual expiry date and that she was sent away upon returning from the trip to Siaya. 6. Once those facts were established and the fairness of the termination challenged, it became incumbent upon the employer to demonstrate the reason for termination. No such evidence was presented. I consequently find that the Respondents failed to discharge the burden imposed upon an employer under sections 43 and 45 of the Employment Act. The termination was therefore substantively unfair. Procedural Fairness 1. The Claimant further testified that she was not informed of the allegation against her, was not issued with a notice to show cause and was not given an opportunity to be heard. Instead, she was given a clearance form and required to exit employment. The clearance form is evidence of the exit process, but it is not evidence of a disciplinary hearing. It neither identifies the reason for termination nor demonstrates that the Claimant was invited to respond to any accusation. The Claimant's evidence on the absence of a hearing remains uncontroverted. 2. The Claimant also relied upon Kibuchi & 6 Others v Mount Kenya University; Attorney General (Interested Party) [2021], in which the Court held that the exclusion of probationary employees from section 41 procedural safeguards under section 42(1) was inconsistent with Articles 41 and 47 of the Constitution. 3. In any event, the Claimant had worked for approximately nine months. Her written contract provided for an initial probationary period of three months. No evidence was produced showing that the probationary period had been extended. There is therefore no factual basis for treating the Claimant as a probationary employee at the time her employment ended. I consequently find that the termination did not satisfy the procedural requirements applicable to the Claimant's employment. The termination was therefore both substantively and procedurally unfair. Reliefs 1. Salary Applicable to the Monetary Awards- Before addressing the individual remedies, the Court must resolve the discrepancy regarding salary. The Claimant pleaded and testified that she earned KShs. 33,360 per month. However, her own written employment contract expressly provides for a gross salary of KShs. 21,000 per month. No payslip, bank statement, M-Pesa statement or other payment record was produced demonstrating that the contractual salary had subsequently been increased to KShs. 33,360. The Court cannot disregard the Claimant's own documentary evidence merely because the proceedings are undefended. Where oral evidence as to the agreed remuneration conflicts with the written contract relied upon by the Claimant herself and no documentary evidence of a subsequent variation is produced, the Court is persuaded that the written contractual figure provides the more reliable evidential basis. I therefore find that the monthly gross salary proved before the Court is KShs. 21,000, and not KShs. 33,360. 2. One Month's Salary in Lieu of Notice- The contract provided for termination upon one month's written notice or payment of one month's salary in lieu after probation. The Claimant's evidence that she was sent away immediately without notice or payment in lieu thereof is uncontroverted. Having found that the proved monthly gross remuneration was KShs. 21,000, I award the Claimant: KShs. 21,000 as one month's salary in lieu of notice. 3. Annual Leave- The Claimant worked for approximately nine months and testified that she had not taken annual leave by the time her employment came to an end. The contract provided for 21 working days' annual leave for each calendar year. For nine months of service, the Claimant's pro-rata contractual leave entitlement is: 21 × 9/12 = 15.75 days. Based on the proved monthly salary of KShs. 21,000, and applying a daily rate of KShs. 21,000 ÷ 26, the daily rate is approximately KShs. 807.69. The value of 15.75 leave days is therefore: 15.75 × KShs. 807.69 = KShs. 12,721.15. I accordingly award the Claimant KShs. 12,721.15 as accrued leave pay. 4. Public Holidays- The Claimant seeks KShs. 22,240 for public holidays allegedly worked. Her evidence is that throughout her service she worked during public holidays without additional compensation or compensatory rest days. Her submissions repeat that assertion. The difficulty is evidential. Neither the Memorandum of Claim, witness statement nor submissions particularise the specific public holidays worked. No attendance records, work schedules, reports, correspondence or other evidence was produced identifying the particular holidays upon which the Claimant actually rendered services. There is also a discrepancy in quantum. The pre-suit demand sought KShs. 13,344, whereas the Memorandum of Claim seeks KShs. 22,240, without an evidential explanation for the difference. A monetary claim cannot be awarded merely because it is unopposed. The Court must be provided with sufficient evidence upon which the amount can reasonably be determined. The Claimant has therefore failed to prove the claim for KShs. 22,240 for public holidays to the required standard. The claim for payment for public holidays is consequently declined. 5. Compensation for Unfair Termination- The Claimant seeks KShs. 400,320, being the equivalent of twelve months at KShs. 33,360 per month, as compensation for unfair termination. Section 49(1)(c) of the Employment Act empowers the Court to award compensation not exceeding twelve months' gross wages. An award of twelve months is not automatic upon a finding of unfair termination. It is the statutory maximum and the Court must exercise its discretion judicially having regard to the circumstances of each case. 6. In the present matter, I have considered that: the Claimant had served for a relatively short period of approximately nine months; the employment relationship was governed by a fixed-term contract which appears to have been due to expire on 31st January 2024; the employment was terminated approximately four months before the contractual expiry date; no valid reason for termination was established; no disciplinary procedure was demonstrated; the Claimant's evidence is that she had obtained permission before travelling to Siaya; there is no evidence of misconduct on her part before the Court; the manner in which the employment ended was abrupt; and the Claimant has not demonstrated circumstances that would justify the maximum award of twelve months. Of particular significance is the fixed-term nature of the contract. At the time of termination in September 2023, only approximately four months remained before its stated expiry on 31st January 2024. In the circumstances, I consider an award equivalent to four months' gross salary to be fair and proportionate. Based on the proved gross monthly salary of KShs. 21,000, the award is: KShs. 21,000 × 4 = KShs. 84,000. I therefore award the Claimant KShs. 84,000 as compensation for unfair termination. 7. Certificate of Service- The Claimant states that she was not issued with a certificate of service. Section 51 of the Employment Act requires an employer, subject to the statutory conditions, to issue an employee with a certificate of service upon termination of employment. The Claimant's prayer in this regard is merited. The 2nd Respondent shall therefore issue the Claimant with a certificate of service. Liability of the Respondents 1. Before making the final orders, it is necessary to return to the question of liability as between the two Respondents. The Claimant sued both entities and described both as her employers. However, the documentary evidence establishes that the written employment contract was entered into between the Claimant and Tradco Services Limited, the 2nd Respondent. 2. It was the 2nd Respondent that recruited her, stipulated her remuneration and employment conditions, maintained her employee records and processed her clearance. Although the Claimant was deployed to perform merchandising services for the benefit of the 1st Respondent, no employment contract between her and the 1st Respondent was produced. 3. Neither is there sufficient evidence before the Court establishing that the 1st Respondent independently exercised the contractual powers of an employer over the Claimant, including payment of wages or termination of the contract. 4. The mere fact that an employee recruited by an agency renders services to the agency's client does not, without more, establish that the client was itself the contractual employer. 5. On the evidence before me, the employment relationship giving rise to the monetary obligations determined in this judgment is proved against the 2nd Respondent, Tradco Services Limited. 6. The claim against the 1st Respondent has therefore not been proved on a balance of probabilities and is dismissed. Costs 1. Costs ordinarily follow the event, subject to the Court's discretion. The Claimant has substantially succeeded against the 2nd Respondent. I find no reason to deprive her of costs. The Claimant shall therefore have the costs of the suit against the 2nd Respondent. Considering the circumstances and the relationship between the parties, there shall be no order as to costs in respect of the dismissed claim against the 1st Respondent. **Disposition** 1. In the end, judgment is entered in favour of the Claimant against the 2nd Respondent, Tradco Services Limited, as follows: 2. One month's salary in lieu of notice – KShs. 21,000.00; 3. Accrued annual leave – KShs. 12,721.15; 4. Compensation equivalent to four months' gross salary for unfair termination – KShs. 84,000.00; Total – KShs. 117,721.15. 1. The claim for KShs. 22,240 for public holidays is dismissed for want of sufficient proof. 2. The claim for compensation equivalent to twelve months' salary is allowed only to the extent of the four months' compensation awarded above. 3. The 2nd Respondent shall issue the Claimant with a certificate of service in accordance with section 51 of the Employment Act. 4. The Claimant shall have the costs of the suit against the 2nd Respondent. 5. The Claimant's claim against the 1st Respondent, Cofftea Limited, is dismissed with no order as to costs. 6. The monetary award shall attract interest at court rates from the date of this judgment until payment in full. Orders accordingly. **DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOSFT TEAMS AT MOMBASA THIS 27TH AUGUST 2026.** **……………………………………………….** **EMILY M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**