https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2168

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAIROBI** **ELRC CAUSE NO. E961 OF 2024** ***(Before Hon. Lady Justice Hellen Wasilwa, J)*** **EPHARAHIM KANYI MAHINDA....………………………....CLAIMANT** **VS** **MAGNUM CREDIT LIMITED…………………………..…RESPONDENT** **JUDGMENT** 1. The Claimant instituted this claim vide an Amended Statement of Claim dated 20th March 2025 and prays for judgment against the Respondent and orders for: 2. *A declaration that the Claimant’s termination is wrongful and unfair and illegal for want of substantive justification and procedural fairness.* 3. *Maximum compensation for wrongful, unfair and unlawful termination of employment as particularized under paragraph 16 hereinabove.* 4. *Aggravated damages and general damages for pain, suffering, mental anguish, anxiety and humiliation.* 5. *Damages for breach of the Claimant’s right to fair labour practice guaranteed under Article 41 of the Constitution.* 6. *Damages for breach of the Claimant’s right to fair administrative action guaranteed by Article 47 of the Constitution of Kenya.* 7. *Damages for breach of the Claimant’s legitimate and reasonable expectation.* 8. *Certificate of service* 9. *Cost of this suit* 10. *Interest on (b) above at the court rates from the date of filing this suit till payment in full.* 11. *Any other or further relief this Honourable Court may deem fit to grant.* **Claimant’s Case** 1. The Claimant avers that he was employed by the Respondent on 25th April, 2024 as a Business Development Manager on a written contract at a monthly salary of Kshs.100,000. 2. He avers that he served the Respondent faithfully, diligently and with dedication in the said position until 19th August, 2024, when he reported to work as usual and worked until evening, at which point the Respondent's Human Resource, one Betty, informed him that he should go home for three (3) days. 3. The Claimant avers that he was asked to hand over his laptop, which he did, and he left for home as directed. 4. He further avers that on 22nd August, 2024, he received a call from the Respondent's General Manager, one Tinna Masika, informing him that the three (3) days off would be extended and that he would be advised when a meeting would be scheduled. 5. The Claimant contends that on 10th September, 2024, he sought to know the status of his employment and why he had not received his August, 2024 salary, and in the same breath inquired whether he had been terminated, given that he had neither been issued with a termination letter nor formally handed over his duties. He avers that he made several attempts to call and meet his boss, but his calls were ignored and his messages went unanswered to date. 6. It is the Claimant's case that at no point during his employment was he issued with any warning letter, and that the manner of his dismissal was improper, without adequate notice and without a hearing as contemplated by law. 7. He asserts that the Respondent never explained to him the selection criteria applied in terminating him, and that due process was disregarded altogether. He contends that being on an open-ended contract with no expectation of an abrupt end, the termination grossly violated his legitimate and reasonable expectations. 8. The Claimant further contends that the termination breached sections 40(1)(a) and (c), 45 and 43 of the Employment Act, and violated his rights to fair labour practices under Articles 2(6) and 41, to fair administrative action under Article 47, and to equality under Article 27 of the Constitution, as well as section 4(3) of the Fair Administrative Action Act. He additionally avers that he was not granted an opportunity to take his annual leave for the year 2024. 9. He avers that despite demand, the Respondent has failed and/or refused to pay him his terminal dues or to admit liability, necessitating the institution of this suit. 10. The Claimant states that there is no other pending suit or prior proceedings between the parties over the same subject matter, and that this Court is properly seized of jurisdiction to hear the matter. **Respondent’s Case** 1. In opposition to the Claim, the Respondent filed an Amended Response to the Memorandum of Claim dated 20th March 2025. 2. The Respondent avers that the Claimant was dismissed following gross misconduct and indiscipline. 3. The Respondent avers that the Claimant was duly issued with warnings concerning his persistent misconduct and despite being repeatedly contacted by telephone and directed to present himself for the disciplinary process, he wilfully failed, refused and/or neglected to respond to the Respondent's calls, thereby leaving the Respondent with no alternative but to summarily dismiss him. 4. The Respondent contends that the Claimant's dismissal was his own doing, occasioned by his continued gross misconduct and indiscipline, and further states that the Claimant was not qualified to take any annual leave under section 28(1) of the Employment Act. 5. The Respondent states that it has no outstanding payments owed to the Claimant. 6. It is the Respondent’s case that the Claimant was warranted by his continued indiscipline at the workplace and that none of his rights were violated. 7. The Respondent states that Section 41 of the Employment Act does not apply to probationary contracts. **Evidence in Court** 1. The Claimant (CW1) adopted his amended witness statement dated 20th March 2025 as his evidence in chief and produced his list of documents dated 11th November 2025 as his exhibits. 2. During cross-examination, CW1 testified that he had no written agreement with the Respondent in respect to his employment. 3. He testified that he was the only cashier and he was never absent. Further, he never sought permission absence except on 24th December when he was sick having an ear infection. He testified that he texted his boss but did not produce the text message or the medical treatment documents in court. 4. CW1 testified that he saw the Respondent’s letter to the Ministry of Labour indicating he absconded duty, however, he has not filed any letter to challenge the same. 5. CW1 testified that one Mohamed called him before 6th January 2025 and informed him not the report back to work but he has not produced in court any evidence of that call. 6. He testified that he was paid his December 2024 salary. 7. The Respondent’s witness, Omar Mohamed (RW1), testified that he is the proprietor and director of the Respondent company. 8. He adopted his witness statement dated 7th August 2025 as his evidence in chief and produced the Respondent’s list of documents dated even date as his exhibits. 9. RW1 testified that the Respondent is willing to pay him one year leave. 10. Upon cross-examination, RW1 that the Claimant was its employee as a casual. He was first employed from 2021 to 2022 but he absconded duty and was re-employed on November 2023, however, he was not given any appointment letter. 11. RW1 testified that the Claimant was being housed by the Respondent. However, the Respondent did not pay NSSF or NHIF. 12. He testified that the Claimant was not subjected to any disciplinary process. **Claimants’ Submissions** 1. The Claimant submitted that he has proved his case to the required standard; as although there was no formal employment letter, the Respondent admitted that the Claimant was their staff. 2. It was submitted that the issues for determination are whether the reasons for the Claimant's termination were valid and fair, whether the procedure followed was fair, and whether the reliefs sought are merited. 3. The Claimant submitted that the jurisprudence on the mandatory requirement for both substantive and procedural fairness is now fairly settled by this Court through a multitude of decided cases, among them ***Mary Chemweno v Kenya Pipeline Company Limited (2017) eKLR***, ***Loice Otieno v Kenya Commercial Bank Limited (2013) eKLR***, and ***Walter Ogal Anuro v Teachers Service Commission (2012) eKLR***. 4. He submitted that substantive fairness relates to the reason for the dismissal, and that an employer must have a valid reason recognized in law, founded on sections 43, 44, 45, 46 and 47(5)(f) of the Employment Act, before taking action against an employee, as an employer cannot terminate on whims, caprice or malice. He further submitted that beyond substantive fairness, an employer must meet the requirements of procedural fairness envisioned under Article 47 of the Constitution and sections 35, 40, 41 and 44 of the Act, together with the rules of natural justice. 5. On the reasons for termination, the Claimant submitted that section 43(1) of the Employment Act places the burden on the employer to prove the reason for termination, failing which the termination is deemed unfair within the meaning of section 45. He relied on ***Daniel Kiplagat Kipkeibut v Smep Deposit Taking Micro Finance Limited [2016] eKLR***, citing the Court's reliance on section 45(1) and (2) of the Act to the effect that a termination is unfair unless the employer proves that the reason is valid, that it is a fair reason related to conduct, capacity, compatibility or operational requirements, and that fair procedure was followed. 6. He further relied on ***Walter Ogal Anuro v Teachers Service Commission (2013) eKLR***, where the Court held that for a termination to pass the fairness test, there must be both substantive justification and procedural fairness, with substantive justification concerning establishment of a valid reason and procedural fairness addressing the procedure adopted in effecting the termination. He also invoked section 45(4)(b) of the Act on the requirement that termination accord with justice and equity, and submitted that this requirement was unmet, the termination having fallen short of the tenets of justice and equity. 7. It was submitted that the Respondent's dismissal letter dated 28th August 2024 cited alleged disservice by the Claimant, evidenced by warning letters and meetings with the Human Resource Manager and General Manager. 8. The Claimant submitted that in his evidence-in-chief, he denied ever receiving any warning letters or the dismissal letter, and specifically denied Documents No. 7, 8, 9 and 10 in the Respondent's bundle. He submitted that Document No. 7, purporting to be an email, was a fabrication, as it did not conform to the format of an email, demonstrating the lengths to which the Respondent went to manufacture a case against him. 9. He further submitted that his interaction with Documents 8, 9 and 10 only arose upon the Respondent's filing of its documents, and that this was uncontroverted. 10. The Claimant submitted that the Respondent's denial of any WhatsApp correspondence with him was demonstrably dishonest, pointing to WhatsApp evidence showing that RW1 remained in active communication with him from the time he was sent away until communication ceased, and that a "Betty HR" also corresponded with him on 10th September 2024, referencing RW1, yet Betty was never called to testify. 11. He submitted that it was not far-fetched to conclude that the Respondent, having failed to comply with the law on termination, resorted to denying communication as a desperate measure, and submitted that the Respondent failed to prove the reasons for the Claimant's dismissal. 12. On procedure, the Claimant submitted that section 41 of the Employment Act obligates an employer to explain to an employee, before termination on grounds of misconduct, the reason for the contemplated termination, and to hear and consider any representations made. He submitted that section 45(5)(a) further requires the Court to consider the procedure adopted, the communication of the decision, and any appeal. 13. He submitted that no evidence was adduced of any opportunity to be heard, no warning was proved to have been received, and RW1 could not substantiate that the Claimant was contacted by telephone to attend a disciplinary hearing despite confirming that email, phone and WhatsApp were the established modes of communication. 14. The Claimant further submitted that the claim that the Claimant stormed off after being served the dismissal letter was unsupported, as the alleged witness, Judy Gitau, was never called. 15. It is the Claimant’s submission that the allegations against him lacked foundation, that he was not accorded a hearing, and that there was no show-cause letter, invitation to a disciplinary hearing, or evidence of any hearing. 16. On reliefs, the Claimant submitted that he had proved his case on a balance of probabilities and sought a declaration that his termination was unlawful, unfair and illegal for want of substantive justification and procedural fairness, citing ***Janet Nyandiko v Kenya Commercial Bank Limited [2017] eKLR*** on the importance of substantive justification and procedural fairness. 17. He submitted that he is entitled to maximum compensation of twelve (12) months' pay amounting to Kshs.1,455,951.43, submitting that the Respondent circumvented the rules of natural justice and mandatory provisions of the Act, and that although RW1 acknowledged the existence of an HR Manual on disciplinary matters, none was availed. 18. The Claimant submitted that the Respondent's conduct was malicious, vindictive and spiteful, aimed at eliminating him, as evidenced by RW1's denial of correspondence with him. 19. On damages for breach of his right to fair labour practices under Article 41 of the Constitution, the Claimant relied on ***Wenyaa v County Government of Machakos & another (Cause 1431 of 2018) (2022) KEELRC 4064***, where the Court found that suspension and withholding of salary amounted to unfair labour practices, holding that the right to fair labour practices is deliberately placed as part of the Bill of Rights to ensure that every employee has the right not to be unfairly treated in employment and labour relations or subjected to unfair labour practice. The termination having failed both the procedural and substantive tests, he should be awarded Kshs.500,000 under this head. 20. On damages for breach of his right to fair administrative action under Article 47 of the Constitution, the Claimant relied on ***Primus Apamo Ochieng v Principal Secretary Ministry of Health & another [2015] eKLR***, where damages were awarded upon a finding that the Respondent disregarded its policy and failed to give reasons for termination, and urged the Court to award him Kshs.500,000 under this head. He further relied on ***Mbuchi v Software Group Kenya (Cause E718 of 2021) [2024] KEELRC 1934 (KLR)***, where the dismissal was found unfair and unlawful within the meaning of sections 43, 45 and 47 of the Act, and the Respondent was found to have violated the claimant's rights under Articles 47, 41, 50(1) and 10 of the Constitution. 21. On damages for breach of legitimate and reasonable expectation, the Claimant submitted that he had the expectation of continued employment for so long as he did not breach his contract, that there existed no probable or justifiable reason warranting termination, and that this expectation was shattered by the Respondent's malicious termination of his contract. **Respondent’s Submissions** 1. The Respondent submitted that certain facts are undisputed, chief among them that the Claimant was employed as a Business Development Manager at a monthly salary of Kshs.100,000 with effect from 25th April 2024 on probationary terms, as evidenced by the Offer of Employment produced as Respondent's Exhibit 1, and that the Claimant left work on 18th August 2024 and thereafter visited the Respondent's offices on several occasions. 2. It is the Respondent's submission that whereas the Claimant contends he was terminated for no apparent reason and without due process, the Respondent maintains that the termination was both lawful and justified. 3. On the burden of proof, the Respondent submitted that sections 107 and 108 of the Evidence Act place the onus on whoever alleges to prove the existence of the facts asserted, and that section 47(5) of the Employment Act places the initial burden of proving unfair termination on the employee, with the burden shifting to the employer only once that threshold is met. Reliance was placed on ***West Kenya Sugar Company Limited v Chilande (Employment and Labour Relations Appeal E009 of 2023) [2024] KEELRC 2119 (KLR)***, where Keli J held that the employee bears the burden of proving that an unfair termination has occurred, after which the burden shifts to the employer to justify the grounds for termination. 4. It was submitted that the Claimant has not discharged this initial burden, having adduced no evidence that his employment was unlawfully terminated. 5. On the WhatsApp evidence relied upon by the Claimant to show that he was directed to take unpaid leave pending a meeting, the Respondent submitted, firstly, that the screenshots were inadmissible for want of a Certificate of Electronic Evidence as mandatorily required under section 106B of the Evidence Act. Reliance was placed on ***Eliud Okungu Ogembo v Christopher Ondiek Yongo (Civil Appeal E200 of 2023) [2024] KEHC 15763 (KLR***), where it was held that electronic records must be accompanied by a certificate under section 106B(4) of the Evidence Act to be admissible, and that this requirement is not a mere technicality curable under Article 159(2)(d) of the Constitution but a matter of substance, necessary to confirm the source, process, custody and delivery of the record before admission. 6. The Respondent further relied on the finding in the same case that the appellant's suit failed the test of proof on a balance of probabilities for want of the certificate, as well as on ***County Assembly of Kisumu & 2 Others v Kisumu County Assembly Service Board & 6 Others [2015] eKLR***, where the Court of Appeal held that the requirement under section 106B(2) exists for good reason, to guard against reliance on manipulated electronic evidence. 7. Secondly, and without prejudice to the foregoing, it was submitted that even if the screenshots were admitted, they carried negligible probative value, as their authenticity and authorship were consistently disputed by the Respondent, and the Claimant, under cross-examination, was unable to verify the identity of the sender or link the telephone number in the screenshots to the Respondent's General Manager. 8. It was submitted that courts require a demonstrated nexus between the alleged communication and the person sought to be bound, and that in its absence the messages remain uncorroborated and of no evidential weight. The Respondent accordingly urged the Court to find that the Claimant's allegation that he was asked to proceed on unpaid leave is unsubstantiated. 9. On the reason for termination, it is the Respondent's case that the Claimant was summarily dismissed following multiple warnings of gross misconduct which he failed to heed, as evidenced by letters dated 8th July 2024 and 19th August 2024. It was submitted that the Respondent produced an email printed and signed by the Claimant, whose signature he did not dispute, acknowledging the misconduct, and that following his failure to reform, he was invited to a disciplinary hearing. 10. It was submitted that the Claimant's own testimony that he visited the Respondent's offices severally, coupled with his account of leaving his belongings on 18th August, supported the Respondent's position that the letter was tendered to him but that he declined to receive it. Reliance was placed on ***Mwacho v Sunflag Textile & Knit Wear Mills Limited (Cause 1890 of 2015) [2022] KEELRC 4065 (KLR)***, where the Court held that an employer may summarily dismiss an employee under section 44(4) of the Employment Act, subject to the safeguard under section 41(2) that the employee be heard before such dismissal. 11. It was submitted that the Respondent complied with section 44 by issuing proper notice detailing the allegations, and with section 41 by inviting the Claimant to respond, but that the Claimant voluntarily declined to present himself, thereby waiving his opportunity to be heard and disentitling him from now alleging procedural unfairness. It was further submitted that the Respondent's witness testified on oath to having personally witnessed the Claimant read and decline to accept the letters. 12. On this basis, it was submitted that the Claimant has failed to prove, on a balance of probabilities, that his termination was procedurally flawed, and that the persistent lateness constituted gross misconduct entitling the Respondent to dismiss him under section 44(1) of the Act. 13. On the reliefs sought, it was submitted that the prayer for a declaration of wrongful and unfair termination is unmerited, as the Claimant adduced no evidence of an unjustified or procedurally flawed termination, whereas the Respondent demonstrated that the termination was justified and procedurally compliant. 14. On salary in lieu of notice, the Respondent submitted that the Offer of Employment provided for seven (7) days' notice during probation, and that this notice was in any event issued vide the letter dated 28th August 2024, which the Claimant refused to receive; the relief was accordingly opposed. 15. On salary arrears, it submitted that the Claimant adduced no evidence of having worked for nineteen (19) days as pleaded, and that his testimony that he worked up to 18th August 2024, a Sunday, materially contradicted his pleadings. 16. On pro-rata leave, the Respondent submitted that the Claimant, being on a six-month probationary contract that had not lapsed at termination, provided no factual basis upon which any accrued leave could be ascertained. 17. On unpaid house allowance, the Respondent submitted that the Claimant conceded under cross-examination that he had no payslip or other proof that the allowance was unpaid, and that the relief accordingly fails on the principle that he who alleges must prove. 18. On compensation for unfair dismissal, it was submitted that the Claimant worked for less than a year, and that should the Court be inclined to award this head, one month's salary would be appropriate, as held in ***Arodi v Modern Western Coach (Cause 24 of 2017) [2022] KEELRC 12943 (KLR)***. 19. On aggravated and general damages for pain, suffering, mental anguish, anxiety and humiliation, it was submitted that such claims are unknown to section 49 of the Employment Act, citing ***Paul Ngei Kisilu v Astrazeneca Pharmaceuticals Limited [2021] KEELRC 331 (KLR)***, and ***Kenya Power & Lighting Company Limited v Ng'etich (Appeal E060 of 2021) [2022] KEELRC 37 (KLR)***, where it was held that *"aggravated damages do not lie in employment cases."* 20. On damages for breach of Articles 41 and 47 of the Constitution and for legitimate expectation, it was submitted that these prayers are untenable, the claim being founded squarely on an employment relationship already adequately addressed by the Employment Act, and that the Claimant neither pleaded nor proved any distinct constitutional injury separate from the alleged unfair termination capable of attracting a separate award. 21. The Respondent submitted that to grant both statutory compensation and constitutional damages would amount to impermissible double compensation. Reliance was placed on ***Mugambi v Arichem Limited (Cause E778 of 2023) [2026] KEELRC 1268 (KLR)***, *"the claims for punitive, exemplary, aggravated, and general constitutional damages are not separately awardable in the circumstances, as they duplicate employment remedies that have already been awarded herein."* Such claims being deemed subsumed under the statutory compensation awarded. 22. I have examined all the evidence and submissions of the parties herein. The claimant produced text messages between him and one Mr Masika. The 1st one is the one informing him that he should proceed on a 3 days unpaid leave which could be extended. 23. After this leave was extended, the claimant wrote to Betty HR asking why his salary had not been paid despite being sent on leave and having not received his termination letter. 24. The response was for him to do as requested and bring the magnum properties. The respondents have contented that the termination of the claimant was procedural. They aver that the claimant was directed to present himself for disciplinary process but he willfully failed and refused to attend. The respondents have not however produced any letters or communication to the claimant inviting him for any disciplinary hearing nor any minutes of any such hearing. The rest of their response is mere denial of the averments of the claimant. 25. The only communication from the respondent to the claimant in relation to the termination is the summary dismissal letter dated 28th August 2024 which indicated the respondent had resolved that his services are no longer needed after several consultations. 26. The process followed by the respondents before dismissing the claimant was glaringly in contrast to the process envisaged under section 41 of the Employment Act 2007 which states as follows: **41. (1). Subject to section 42 (1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.** 1. By virtue of the omission, the claimant was denied an opportunity to meet his accusers, cross examine them and present his own case. It is therefore clear that the respondents have not established the existence of valid reasons to warrant his dismissal. 2. Section 45(2) of the Employment Act 2007 states as follows: **(2) A termination of employment by an** **employer is unfair if the employer fails to prove―** 1. **that the reason for the termination** **is valid;** 1. **that the reason for the termination is a fair reason―** 2. **related to the employees conduct, capacity or compatibility; or** 3. **based on the operational requirements of the employer; and** **(c) that the employment was terminated in accordance with fair procedure** 1. Given that the respondents have not established existence of valid reason for respondent’s termination nor followed proper disciplinary process before dismissing the claimant, I find the termination unfair and unjustified and I declare it so. 2. In terms of remedies, I find for the claimant and I award him as follows: 3. In view of the unfairness meted against the claimant wherever he was dismissed without any due process and without existence of due process and given the short period of employment which may have disrupted his career, I find 8 months salary as compensation for the unfair termination apt and which I award – 8x100,000=kshs 800,000/-. 4. 1 month’s salary in lieu of notice = kshs 100,000/-. **TOTAL = KSHS 900,000**/- less statutory deductions. 1. The respondents shall issue the claimant with a certificate of service. 2. The respondents will pay costs of this suit plus interest at court rates with effect from the date of this judgment. **Dated, Signed and Delivered virtually at Nairobi this 27th Day of July 2026.** **HELLEN WASILWA** **JUDGE**