https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1864

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT** **AT NAIROBI** **ELRC CAUSE NO. E324 OF 2024** ***(Before Hon. Lady Justice Hellen Wasilwa, J)*** **VIVIAN MAINA....…………………………...................…CLAIMANT** **VS** **STAR KITCHENS INTEGRATED LIMITED……………RESPONDENT** **JUDGMENT** 1. The Claimant instituted this claim vide a Memorandum of Claim dated 29th April 2024 and prays that judgment be entered in her favour against the Respondent in the following terms: 2. *A declaration that the Claimant was unfairly dismissed by the Respondent,* 3. *Damages for unfair termination of Kenya Shillings Two Million One Hundred Forty-Five Thousand (Kshs. 2,145.000.00)* 4. *An order for the issuance of a certificate of service* 5. *Costs; and* 6. *Any other relief that this Honourable Court may deem just and fit to grant.* **Claimant’s Case** 1. The Claimant avers that she was employed by the Respondent as a Data Analyst pursuant to an Employment Contract dated 24th August 2022, with her employment commencing on 5th September 2022. Her gross annual salary was Kshs. 1,800,000. 2. She avers that the employment contract was solely drafted by the Respondent and governed by Kenyan law. It provided for fifteen (15) annual leave days under Clause 7 and a retirement savings plan under Clause 11. 3. The Claimant avers that she faithfully served the Respondent and received positive performance reviews throughout her employment. However, her employment was terminated on account of redundancy by a Disengagement Notice dated 27th February 2024. 4. The Claimant asserts that the Respondent failed to comply with the mandatory requirements of Section 40 of the Employment Act. In particular, she contends that the Respondent failed to issue the statutory notices to both the employee and the Labour Officer at least one month before the intended redundancy; failed to consult her regarding the intended redundancy; failed to apply a fair selection criterion despite acknowledging in the disengagement notice her skills, competence, zeal and commendable work ethic; and failed to compute and pay severance pay as required under the law. 5. The Claimant further avers that the Respondent failed to pay her all accrued leave days. She states that whereas Section 28(1) of the Employment Act provides for a minimum of 21 annual leave days, the Respondent calculated her leave dues on the basis of the contractual entitlement of 15 days, thereby denying her accrued leave benefits. 6. She contends that under Clause 11 of the Employment Contract, the Respondent was obligated to match her contribution of 5% of her gross salary towards a retirement savings account of her choice. She avers that the Respondent failed to make the said contributions and informed her that the retirement savings provisions were not applicable to her despite their inclusion in the Employment Contract. 7. It is the Claimant’s case that her termination was both procedurally and substantively unfair and unlawful and that the Respondent further breached its contractual obligation regarding retirement savings contributions. 8. Consequently, the Claimant seeks compensation for unfair termination equivalent to twelve months’ salary amounting to Kshs. 1,800,000; severance pay of Kshs. 75,000; retirement savings contributions amounting to Kshs. 135,000; payment for accrued leave days amounting to Kshs. 135,000; together with costs of the suit and any other appropriate relief. She avers that despite demand, the Respondent failed to settle her claim. **Evidence in Court** 1. The hearing proceeded undefended as the Respondent failed to defend the suit despite being served severally by the Claimant’s Counsel. 2. During hearing, the Claimant (CW1) adopted her witness statement dated 29th April 2024 as his evidence in chief and produced her list of documents dated 10th September 2025 as her exhibits. **Claimant’s Submissions** 1. The Claimant submitted on six issues: The consequences of the respondent’s failure to call a witness; Whether the termination of the claimant’s employment on account of redundancy was lawful and procedurally fair; Whether the respondent breached Clause 11 of the employment contract; Whether the claimant is entitled to payment of the outstanding retirement savings contribution; Whether the respondent failed to pay the claimant her statutory and contractual entitlements upon termination; Whether the claimant is entitled to compensation for unfair termination. 2. On the first issue, the Claimant submitted that the Respondent failed to call any witness during the hearing, therefore, its pleadings remained mere assertions unsupported by evidence; and her evidence stood wholly uncontroverted and unchallenged. 3. Relying on ***Trust Bank Limited v Paramount Universal Bank Limited & 2 Others, Nairobi (Milimani) HCCS No. 1243 of 2001***, the Claimant submitted that it is the law that where a party fails to call a witness to support its claim, that party’s pleadings remain mere assertions. The evidence adduced by the other party remains uncontroverted and therefore unchallenged. 4. On the second issue, the Claimant submitted that the disengagement notice dated 27th February 2024, terminated her employment on grounds that her role was no longer required due to business considerations. She argued that under Sections 43 and 45(2) of the Employment Act, the Respondent bore the burden of proving the reasons for termination and demonstrating that due process was followed, failing which the termination would be deemed unfair. 5. Citing [***Walter Ogal Anuro V Teachers Service Commission [2013]eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/386/eng%402013-05-02), where the Court held that for a termination to pass the fairness test there must be both substantive justification and procedural fairness. She submitted that the Respondent failed to prove that a genuine redundancy situation existed and failed to produce any evidence of restructuring, abolition of her position or business requirements necessitating redundancy. Therefore, she argued that her termination was unlawful and procedurally unfair. 6. It is the Claimant’s submission that the Respondent failed to comply with the mandatory requirements of Section 40 of the Employment Act, thus, her termination was unlawful and procedurally unfair. 7. It was submitted that the Respondent failed to issue a notice of intention to declare redundancy to both the Claimant and the Labour Officer indicating the reasons and extent of the intended redundancy. Reliance was placed on [***Thomas De La Rue (K) Ltd v David Opondo Omutelema [2013] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2013/492/eng%402013-07-05), where the Court of Appeal held that the notices to the employee and the Labour Officer must be in writing and issued at least one month before the intended date of termination. 8. The Claimant submitted that the Respondent did not produce any documentation to prove that it applied fair selection criteria in determining that the claimant would be declared redundant, and cited [***Doris Kairuthi Kaaria & 59 others v Kenya Methodist University [2017] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1941/eng%402017-07-28). 9. She submitted that Respondent did not consult her on its intention to declare a redundancy and neither did it produce any evidence of any meetings it held with her to discuss any alternatives to redundancy. Reliance was placed on [***Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 others [2014] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2014/403/eng%402014-07-11). 10. The Claimant further submitted that the Respondent failed to pay all her terminal dues, including accrued leave pay and severance pay, and also failed to issue a certificate of service contrary to Section 51 of the Employment Act. 11. On the third issue, the Claimant submitted that the Clause 11 of the employment contract required the Respondent to deduct 5% of her monthly salary and remit the same to a retirement savings account of her choice while matching her contributions on a monthly basis. She argued that although deductions were made from her salary, the Respondent neither remitted the deductions nor matched the contributions as contractually agreed. 12. The Claimant rejected the Respondent’s contention that Clause 11 referred to NSSF contributions; and submitted that NSSF contributions are statutorily determined, whereas Clause 11 expressly referred to a retirement savings account of her choice. Further, she argued that the retirement savings contribution was intended to be in addition to the statutory deductions contemplated under Clause 2 of the Employment Contract and had the parties intended the clause to refer to NSSF, they would have expressly stated so. 13. It was submitted that the Respondent failed to produce any evidence showing that the deductions were remitted or that matching contributions were made, thereby breaching the contract. 14. Regarding the outstanding retirement savings contributions, the Claimant submitted that Clause 11 created a contractual obligation separate from and additional to statutory NSSF obligations. She relied on Section 19 of the Employment Act, which permits deductions only where the employer properly accounts for and remits the deducted sums and further relied on [***Emmanuel Ochieng Onyango v Metal Cans and Closure Kenya Limited & another [2018] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1786/eng%402018-01-26), where the Court held that where an employer deducts sums from an employee’s salary and fails to remit them as required, the employer becomes liable to refund the same. She therefore argued that she was entitled to both the outstanding retirement savings contributions together with the respondent’s matching contributions. 15. On statutory and contractual entitlements, the Claimant submitted that the allegation that she failed to clear with the Respondent was unsupported by evidence. She argued that she duly cleared and the Respondent acknowledged receipt of its work tools and undertook to process payment of her dues. She further submitted that despite alleging payment of terminal dues, the Respondent produced no evidence such as bank transfer records to demonstrate payment. 16. Regarding annual leave, the Claimant submitted that Section 28(1) of the Employment Act grants an employee a minimum of twenty-one days annual leave with full pay. She argued that Clause 7 of the Employment Contract, which provided for only fifteen leave days annually, was unlawful and unconscionable and could not override the statutory minimum. 17. The Claimant submitted that she worked from 5th September 2022 until 27th February 2024 without proceeding on leave and that the Respondent failed to produce leave records or proof of payment for accrued leave days. She therefore maintained that she was entitled to payment for the leave days claimed. 18. On severance pay, the Claimant submitted that under Section 40(1)(g) of the Employment Act, an employee declared redundant is entitled to severance pay at a rate of not less than fifteen days’ pay for each completed year of service. Having worked for approximately eighteen months, she argued that she was entitled to severance pay for one completed year. 19. On compensation for unfair termination, the Claimant submitted that the redundancy lacked a valid reason and was undertaken without adherence to the mandatory statutory procedure. She relied on [***Kiambaa Dairy Farmers Co-Operative Society Limited v Rhoda Njeri & 3 others [2018] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2018/150/eng%402018-10-11), where the Court of Appeal held that maximum compensation may be awarded where there is blatant and contumelious disregard of an employee’s rights and dignity. 20. The Claimant argued that maximum compensation under Section 49(4) of the Employment Act was justified because the Respondent failed to provide evidence supporting the redundancy; failed to comply with any of the procedural safeguards under Section 40 of the Employment Act; terminated an employee who was on an open-ended contract and had no record of poor performance or misconduct; issued terms of employment inconsistent with statutory provisions, particularly on annual leave; unilaterally altered employment terms by refusing to pay her full salary during maternity leave; and declined to amicably resolve the dispute despite receipt of a demand letter prior to the institution of the suit. 21. I have examined all the evidence and submissions of the parties herein. The evidence adduced by the claimants remain uncontroverted. It is however discernable from the proceedings and documents on record that the respondents failed to follow due process in the redundancy process. No notice was given as expected. It is also true that the respondents entered an agreement with claimant where her leave days given were 14 annually. This is however illegal and contravenes the direct provisions of the Employment Act 2007 which provides at section 28(1) as follows: | | | | --- | --- | | **(1)** | **An employer shall regulate the working hours of each employee in accordance with the provisions of this Act and any other written law.** | 1. The respondents failed to pay the redundancy pay including severance pay and leave dues and notice pay and therefore ignored the express provisions of the law. 2. I therefore find for the claimant in totality and I award her judgment as follows: 3. 1 month’s salary in lieu of notice = kshs 150,000/-. 4. Severance pay at ½ salary for each year worked = ½ x150,000x2=150,000/- 5. Leave not included in contract 7 days per year= 14/30x150,000= 70,000/- 6. I also award damages for unfair redundancy being equivalent to 6 months’ salary due to the unfair process and failure to pay him his dues = 6x150,000=900,000/- **TOTAL= Kshs 1,270,000**/- less statutory deductions. 1. The claimant be issued 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 30th Day of June, 2026.** **HELLEN WASILWA** **JUDGE**