https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/468

Mangale v Professional Clean Care Ltd (Cause E570 of 2024) [2026] KEMC 468 (KLR) (30 July 2026) (Judgment) Neutral citation: [2026] KEMC 468 (KLR) Republic of Kenya In the Mombasa Law Courts Cause E570 of 2024 EM Mwamuye, SRM July 30, 2026 Between Ibrahim Gube Mangale Claimant and Professional Clean Care Limited Respondent Judgment Introduction 1.The Claimant instituted these proceedings through a Statement of Claim dated 10th June 2025. He alleged that the Respondent had unfairly and unlawfully terminated his employment, failed to pay his terminal and contractual dues and failed to remit some of his statutory deductions. 2.The Claimant sought payment of Kshs.428,843.33, a Certificate of Service, costs, interest and any other relief the Court deemed fit. 3.The Respondent entered appearance and filed a Statement of Response dated 4th September 2025. It admitted the employment relationship but denied terminating the Claimant. Its case was that the Claimant had been suspended and thereafter placed on temporary unpaid leave pending redeployment following complaints of misconduct from the client to whom he had been assigned. 4.The matter proceeded to hearing on 11th May 2026. The Claimant testified as CW1 while the Respondent called its General Manager, Mr. Ben Micheni, who testified as RW1. Both witnesses adopted their respective witness statements, produced the documents filed by their respective parties and were cross-examined. The parties thereafter closed their cases and filed written submissions. The Claimant’s Case 5.The Claimant testified that the Respondent employed him as a general labourer in the capacity of a cleaner on or about 28th February 2023. He was deployed to Aga Khan University Hospital, Likoni Clinic and earned a monthly gross salary of Kshs.15,000. 6.He stated that on 17th January 2025 the Respondent issued him with a letter entitled “Reprimand for Misconduct.” The letter accused him of habitual absence from work without prior permission or proper communication, failure to attend to his duties diligently and unwillingness to accept correction. 7.The letter suspended him for fourteen days without pay with effect from 22nd January 2025 pending further disciplinary action. 8.The Claimant testified that after the suspension period he attempted to resume duty but was informed that he would be recalled. He further stated that when he reported on 4th March 2025, his supervisor, Mr. John Kola, informed him that management had extended his unpaid leave because the complaints made against him by the client had been confirmed. 9.According to the Claimant, no notice to show cause was issued to him, no disciplinary hearing was convened and he was not afforded an opportunity to answer the accusations. He denied receiving the letter dated 28th February 2025, which purportedly placed him on unpaid leave pending redeployment. 10.He further testified that he was promised redeployment but was never recalled or offered an alternative posting. He consequently regarded the indefinite unpaid leave and failure to provide work as termination of his employment. 11.The Claimant denied the allegations of misconduct and stated that his work performance was satisfactory. He asserted that any difficulties at his station arose from interpersonal differences with a doctor at the facility, which had occasioned a request for his transfer. 12.He also alleged that he was not granted annual leave, worked overtime and during public holidays without compensation, was underpaid, was not paid the proper house allowance and had NSSF deductions made from his wages without corresponding remittances in certain months. The Respondent’s Case 13.RW1, Mr. Ben Micheni, testified that he was the Respondent’s General Manager and was familiar with the facts of the case. He stated that the Claimant applied for employment through an application letter dated 6th February 2023 and was employed in March 2023 as a cleaner. 14.The Claimant’s agreed consolidated monthly salary was Kshs.15,000, comprising: Basic salary of Kshs.13,043.48; and house allowance of Kshs.1,956.52. The Claimant was deployed to Aga Khan Hospital, Likoni. 15.RW1 testified that between November 2024 and January 2025, the Respondent received several complaints from the client concerning the Claimant. The complaints related to: Chronic lateness; Absenteeism; Unwillingness to accept correction; Poor cleaning standards; and failure to improve despite repeated corrections. 16.The client eventually informed the Respondent that it was no longer willing to retain the Claimant at its premises and requested that he be replaced. 17.The Respondent consequently issued the letter dated 17th January 2025 suspending the Claimant for fourteen days without pay with effect from 22nd January 2025. 18.RW1 testified that the Respondent did not dismiss the Claimant. Instead, after consultations, it placed him on unpaid leave effective 4th March 2025 as a temporary measure pending redeployment to another client. 19.RW1 stated that the Claimant declined to sign the letter dated 28th February 2025 notifying him of the unpaid leave and intended redeployment. 20.He explained that the Respondent is an outsourcing company and that redeployment depends upon the availability of vacancies at its clients’ premises. The Respondent maintained that the Claimant’s employment was never terminated and that the present suit was filed before the redeployment process could be concluded. 21.The Respondent produced internal emails relating to the complaints, the letters dated 17th January 2025 and 28th February 2025, and payslips for January, February and March 2025. Its evidence was that the Claimant continued to receive remuneration during those months. Parties’ Submissions 22.The Claimant submitted that the Respondent’s conduct amounted to termination by conduct. He argued that an employer could not place an employee on indefinite unpaid leave without a definite date for recall and thereafter contend that the employment relationship remained subsisting. 23.He further submitted that the Respondent failed to comply with sections 41, 43 and 45 of the Employment Act because no notice to show cause was issued, no formal disciplinary hearing was held, no minutes were produced and he was not afforded an opportunity to respond to the allegations. 24.The Respondent submitted that the Claimant had failed to prove that a termination had occurred. It maintained that the Claimant was merely placed on unpaid leave pending redeployment and that, in the absence of termination, the claims for notice pay and compensation could not arise. 25.It further argued that the Claimant had failed to specifically prove his claims for leave, overtime, public holidays, house allowance, underpayment and service pay. Issues for Determination 26.Having considered the pleadings, oral testimony, documentary evidence and written submissions, the issues arising for determination are:a.Whether the Claimant’s employment was terminated by the Respondent;b.If so, whether the termination was substantively and procedurally fair;c.Whether the Claimant proved the monetary claims pleaded; andd.What reliefs should issue. Whether the Claimant’s Employment Was Terminated 27.The existence of an employment relationship is not disputed. The only material discrepancy concerns whether the employment commenced on 28th February 2023 or during March 2023. That minor discrepancy does not affect the determination of the substantive dispute. 28.The Respondent’s principal defence is that there was no termination. It contends that the Claimant remained its employee while on unpaid leave awaiting redeployment. 29.Section 47(5) of the Employment Act places the initial burden of demonstrating that an unfair termination or wrongful dismissal occurred upon the employee. Once that initial burden is discharged, the employer bears the burden of justifying the grounds and procedure adopted. 30.The absence of a document expressly headed “termination letter” is not always conclusive. The Court must consider the substance and practical effect of the employer’s conduct. 31.The reprimand letter dated 17th January 2025 placed the Claimant on suspension without pay for fourteen days. It stated that further disciplinary action was contemplated. However, there is no evidence that the disciplinary process contemplated in that letter was ever undertaken. Instead, the Respondent issued another letter dated 28th February 2025 placing the Claimant on unpaid leave with effect from 4th March 2025 pending possible redeployment. 32.The letter did not identify: The alternative station to which the Claimant would be redeployed; The anticipated date of redeployment; The duration of the unpaid leave; The contractual or statutory provision authorising indefinite unpaid leave; or the date when the arrangement would be reviewed. The Claimant was therefore removed from his duty station, denied work and deprived of wages for an indefinite period. 33.An employment relationship is not preserved merely by an employer continuing to describe an employee as being “on leave” where the employee is not permitted to work, is not paid and is not given a definite date for resumption of duty. 34.The Respondent had the managerial prerogative to transfer or redeploy its employees, subject to the contract and the law. It could also investigate complaints raised by a client. However, it could not place the Claimant on indefinite unpaid leave without a contractual or statutory foundation and without concluding the disciplinary or redeployment process within a reasonable period. 35.The evidence that the Claimant declined to sign the letter dated 28th February 2025 does not cure the substantive difficulty. Refusal to sign may demonstrate that the communication was presented to him, but it does not convert an indefinite unpaid suspension into a lawful employment arrangement. 36.The Respondent stated that the filing of the suit frustrated redeployment. No documentary evidence was produced showing that a specific alternative posting had been secured and communicated to the Claimant before the suit was instituted. 37.The Court finds that by withdrawing the Claimant from duty, ceasing to provide work and placing him on indefinite unpaid leave without a defined recall date, the Respondent effectively brought the employment relationship to an end. 38.In the circumstances, the effective date of termination was 4th March 2025, when the indefinite unpaid leave took effect. This finding does not depart from the pleadings. The Claimant expressly pleaded that the Respondent had placed him on indefinite unpaid leave, failed to redeploy him and thereby effectively dismissed him. Whether There Was a Valid and Fair Reason 39.Under sections 43 and 45 of the Employment Act, the employer bears the burden of proving the reason for termination and demonstrating that it was valid and fair. 40.The Respondent produced internal communications showing that the client had raised complaints about the Claimant’s attendance, punctuality, cleaning standards and responsiveness to correction. 41.The correspondence demonstrates that the complaints were not invented after the dispute arose. They were communicated to the Respondent by the client and ultimately led the client to request the Claimant’s removal from the station. 42.The Respondent was therefore entitled to investigate the complaints and to consider withdrawing the Claimant from that particular client’s premises. 43.The Employment Act does not require an employer to prove misconduct beyond reasonable doubt. What is required is proof, on a balance of probabilities, that the employer genuinely believed there existed a valid reason relating to the employee’s conduct, capacity, compatibility or its operational requirements. 44.The client’s complaints provided a reasonable factual basis for the Respondent to consider disciplinary action or redeployment. 45.However, the Respondent did not make a final and reasoned determination that the Claimant was guilty of the allegations. Its own position was that it did not dismiss him for misconduct but merely placed him on unpaid leave pending redeployment. 46.The Respondent cannot simultaneously contend that the employment was not terminated and rely on misconduct as a completed justification for the cessation of work and wages. 47.The Court consequently finds that while there were genuine complaints warranting investigation and possible administrative action, the Respondent did not demonstrate a valid and fair reason for indefinitely withholding work and wages from the Claimant. Whether Fair Procedure Was Followed 48.Section 41 of the Employment Act requires an employer contemplating termination on grounds of misconduct, poor performance or physical incapacity to explain the allegations to the employee in a language the employee understands and to hear and consider the employee’s representations. 49.The employee must also be informed of the right to be accompanied by another employee or a shop-floor union representative of his choice. 50.In Postal Corporation of Kenya v Andrew K. Tanui, the Court of Appeal identified the essential elements of procedural fairness as: Explanation of the grounds being considered; Explanation of the reason termination is contemplated; Notification of the employee’s right to the presence of another employee; and hearing and consideration of the representations made by the employee and his representative. 51.The Respondent did not produce: A notice to show cause; A written response from the Claimant; An invitation to a disciplinary hearing; Minutes of a disciplinary hearing; Evidence that the Claimant was informed of his right to accompaniment; or a reasoned disciplinary decision. 52.RW1 referred to “extensive consultations” with the Claimant. Informal discussions may be relevant, but they do not, without more, satisfy section 41 where the employer is considering adverse action arising from allegations of misconduct or poor performance. 53.The letter dated 17th January 2025 was framed as a reprimand and suspension letter. It did not invite the Claimant to answer the allegations within a specified period and did not notify him of a disciplinary hearing. 54.Further, the letter dated 28th February 2025 referred to chronic lateness, poor cleaning standards, defensive conduct and failure to improve. Some of those particulars were not clearly set out in the earlier letter. 55.The Claimant was consequently subjected to suspension and indefinite unpaid leave without the procedural protections prescribed by section 41. The Court therefore finds that the termination was procedurally unfair. Accordingly, the termination failed the test under sections 41, 43 and 45 of the Employment Act and was unfair. Reliefs Salary in Lieu of Notice 56.The Claimant was paid monthly. Having found that his employment was terminated without lawful notice, he is entitled to one month’s salary in lieu of notice under section 35 as read with section 36 of the Employment Act. The parties agree that his gross monthly salary was Kshs.15,000. The Court awards: One month’s salary in lieu of notice: Kshs.15,000. Salary Arrears for January, February and March 2025. 57.The Claimant pleaded salary arrears for January, February and March 2025. The Respondent produced payslips for the three months. Although a payslip is not invariably conclusive proof that the corresponding amount reached an employee, the Claimant did not produce bank statements, mobile money records or other evidence demonstrating that the amounts reflected in the payslips were not paid. 58.The evidence of RW1 was that the Claimant continued to receive his salary during those months. The Court finds that this claim was not proved on a balance of probabilities. It is dismissed. House Allowance 59.The Claimant sought a separate award of house allowance. The payslips produced by the Respondent show that the agreed monthly remuneration of Kshs.15,000 consisted of basic salary of Kshs.13,043.48 and house allowance of Kshs.1,956.52. 60.Section 31(2) of the Employment Act permits an employer to pay a consolidated wage inclusive of an element intended to enable the employee to obtain reasonable accommodation. The Respondent specifically itemised the house allowance. The Claimant was therefore not entitled to a second payment of the entire statutory house allowance in addition to what was paid. The separate claim for house allowance is dismissed. Underpayment 61.In the Statement of Claim, the Claimant sought Kshs.7,259.40 as underpayment, calculated at Kshs.201.65 for thirty-six months. In the written submissions, the Claimant sought Kshs.63,743.19 on a materially different calculation based on his basic salary and the wage orders for 2022 and 2024. Parties are bound by their pleadings. A substantially revised claim cannot be introduced through submissions after the close of evidence. 62.Further, the Claimant’s pleaded computation was based on thirty-six months, yet the employment relationship lasted approximately twenty-four months. The pleaded calculation was therefore inconsistent with the proved duration of employment. 63.The Claimant also did not sufficiently establish the precise statutory occupational category, applicable municipal classification and effective period of each wage order necessary to sustain the amount pleaded. The underpayment claim is dismissed for want of sufficient proof. Accrued Leave 64.The Claimant testified that he was not granted annual leave during the period of employment. The Respondent generally denied the claim but did not produce leave application forms, leave schedules, leave registers or other employment records showing that the Claimant took annual leave or was paid in lieu thereof. 65.Sections 10(7) and 74 of the Employment Act place responsibility upon the employer to maintain and produce employment records relating to an employee’s statutory entitlements. 66.The Claimant worked for approximately two completed years. Under section 28 of the Employment Act, he was entitled to at least twenty-one working days of annual leave for each completed year. The Court therefore awards forty-two leave days calculated using the agreed monthly wage of Kshs.15,000:15,000/26×42=24,230.77 Service Pay and NSSF Contributions 67.The Claimant sought Kshs.9,200 as service pay on the ground that some NSSF deductions were not remitted. Section 35(6) of the Employment Act excludes an employee who is a member of the National Social Security Fund from entitlement to statutory service pay. The Claimant’s NSSF statement confirms that he was registered as a member of the Fund. 68.Failure by an employer to remit deductions may attract statutory enforcement and recovery by the NSSF, but it does not automatically convert the employee into a person entitled to service pay under section 35(5). The claim for service pay is dismissed. 69.This determination does not absolve the Respondent from its statutory obligation to account for and remit any NSSF deductions lawfully made from the Claimant’s wages. Overtime 70.The Claimant testified that he worked from 8.00 a.m. to 6.00 p.m. daily. However, the claim was not sufficiently particularised by reference to the actual dates worked, rest intervals, weekly rest days, shifts or payments received. 71.The computation pleaded only covered two overtime hours for twenty-six days despite the allegation that overtime was worked throughout the employment period. 72.Although the employer is ordinarily the custodian of attendance records, the employee must first place before the Court a sufficiently particularised claim capable of being answered and assessed. The overtime claim is dismissed for insufficient particularisation and proof. Public Holidays 73.The Claimant listed several public holidays and sought compensation for thirty-six days allegedly worked. He did not identify the specific dates on which he personally attended duty, the shifts worked or whether compensatory rest days were granted. The number of thirty-six days was also not reconciled with the approximately two-year duration of employment and the particular holidays listed. A claim for work performed on public holidays is a special monetary claim which must be specifically pleaded and proved. The claim is dismissed for want of sufficient proof. Compensation for Unfair Termination 74.Section 49(1)(c) of the Employment Act permits the Court to award compensation not exceeding twelve months’ gross wages. The award is discretionary and must be assessed against the factors set out in section 49(4). 75.In this case: The Claimant had served for approximately two years; There were genuine complaints from the client regarding his attendance and performance; The client had requested his removal from the station; The Claimant’s conduct appears to have contributed to the circumstances leading to his withdrawal from the station; The Respondent nevertheless failed to conduct a lawful disciplinary process; The Respondent placed him on indefinite unpaid leave without a definite redeployment date; and there was no evidence of any further attempt to restore the employment relationship before or during the proceedings. 76.The Claimant sought the maximum award of twelve months. The maximum is not automatic merely because termination is found to be unfair. 77.Considering the relatively short period of service, the Claimant’s contribution to the circumstances and the Respondent’s procedural failures, an award equivalent to three months’ gross salary is fair and proportionate. The Court awards:Kshs.15,000×3=Kshs. 45,000/= Certificate of Service 78.Section 51 of the Employment Act imposes a mandatory obligation upon an employer to issue a Certificate of Service upon termination. The Respondent shall issue the Claimant with a Certificate of Service within thirty days of this judgment. Final Orders 79.Judgment is entered for the Claimant against the Respondent as follows:a.One month’s salary in lieu of notice Kshs.15,000.00b.Accrued leave pay Kshs.24,230.77c.Compensation equivalent to three months’ gross salary Kshs.45,000.00Total award Kshs.84,230.77d.The claims for salary arrears, separate house allowance, underpayment, service pay, overtime and public holidays are dismissed.e.The Respondent shall issue the Claimant with a Certificate of Service within thirty days.f.The monetary award shall attract interest at Court rates from the date of this judgment until payment in full.g.The Claimant has substantially succeeded in establishing unfair termination but has failed on several monetary claims. The Respondent shall therefore bear two-thirds of the Claimant’s taxed costs of the suit.Orders accordingly. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOSFT TEAMS AT MOMBASA THIS 30TH JULY 2026.……………………………………………….EMILY M. MWAMUYESENIOR RESIDENT MAGISTRATE