https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/423

 **REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE'S COURT AT MAKINDU** **ELR CASE NO E002 OF 2022** **DONARD KITHIKII PAUL MUSYA...........................................................................CLAIMANT** **VERSUS** **NDUMU PLASTICS LIMITED..............................................................................RESPONDENT** **JUDGMENT** **THE CLAIM** This suit was instituted by Donard Kithikii Paul Musya (hereinafter referred to as the Claimant) against Ndumu Plastics Limited (hereinafter referred to as the Respondent). The Claimant filed a Memorandum of claim dated 5/9/2022 on 6/9/2022. The Claimant averred that he was employed by the Respondent as a night guard at the Respondent’s Kibwezi depot zone from 1/4/2019 until 1/6/2022 when he was summarily dismissed. That he was earning a monthly salary of Ksh. 10,000/=. The Claimant further averred that on 1/5/2022 he reported to work only to find that the Respondent had carried away all its properties which the Claimant had been guarding without informing the Claimant, thus impliedly dismissing his services. The Claimant alleged that on or about 1/6/2022 his services were impliedly terminated by the Respondent without a notice of termination and/or salary in lieu of notice. That the decision by the Respondent to terminate the services of the Claimant was an irregularity and illegality in law. The Claimant listed the following particulars of irregularity and illegality: 1. Non-payment of salary arrears due; 2. Terminating the service of the Claimant abruptly without any reason and/or any justifiable cause at all; 3. Breaching the rules and regulations relating to termination of services of an employee on whatever grounds; 4. Denying and/or depriving the Claimant of his lawful rights and/or entitlement; 5. Breaching the rules of natural justice. The plaintiff thus prays for terminal dues as follows: 1. Notice pay of Ksh. 10,000/=; 2. Damages for wrongful dismissal at Ksh. 120,000/=; 3. Pro-rated leave of Ksh. 52,500/=; 4. Pro-rated leave of Ksh. 47,952/=; 5. Service pay of Ksh. 30,000/=; 6. Interest; 7. Costs of the suit; 8. Certificate of service. The matter initially proceeded ex parte when the respondent failed to enter appearance and file a response. Judgment was then delivered on 25/11/2024. Thereafter on 27/2/2025, the parties recorded a consent in which the judgment was set aside and the respondent was granted leave to file and serve its response. The matter started *de novo*. **RESPONSE TO THE CLAIM** Following setting aside of the judgment, the respondent filed a response to the claim dated 6/3/2025. The respondent denied that the claimant was ever its employee and averred that the claimant was initially engaged as an intermittent casual worker who would occasionally be compensated for his work. That in 2021 following the Covid-19 pandemic, the company experienced financial challenges and engaged its employees in several briefings contemplating closure of its operations. The respondent averred that in May, 2022, it communicated to its employees and casual workers the intention to close its operations and gave them one month’s notice to seek alternative employment. The respondent further averred that the claimant’s attendance was irregular and that he was dishonest. That the claimant received several verbal and written warnings for absconding duty. The respondent alleged that the claimant was paid his dues amounting to Ksh. 10,000/= beforehand. The respondent prayed that the suit be dismissed with costs. **THE EVIDENCE** ***The Claimant's Case*** At the hearing of the suit, only the Claimant testified. He adopted his witness statement and documents filed in court as his evidence herein. The Claimant’s evidence was that sometime in 2019 he was employed by the Respondent as a Security guard. That his monthly salary was Ksh. 10,000/=. The Claimant stated that on 1/6/2022 he reported to work and found that the Respondent had carried away the property that the Claimant used to guard. The Claimant called his immediate supervisor who promised to inform him later of the next line of action. It was the evidence of the Claimant that he did not receive any communication from the Respondent. He then reported to the Labour office. The Claimant contended that he was impliedly dismissed from employment since he was not given any notice that the Respondent’s depot where the Claimant worked, would be closed down. The Claimant stated that he never absconded duty and was never given any warning letter. That the signature on the letter exhibited by the Respondent did not belong to him. The Claimant alleged that he worked for the Respondent for three years and was being given a monthly salary. ***The Respondent’s Case*** The Respondent called one witness in its defence. This was Amos Kiragu Mwangi, who claimed to be the Respondent’s General Manager. The witness adopted his statement filed in court as part of his testimony. The witness reiterated the contents of their response to the claim. The witness statement was actually a replica of the response to the claim. The witness added that the claimant was a casual labourer and that he was given sufficient notice of termination and was paid all his dues. **FACTS NOT IN DISPUTE** From the pleadings and evidence from both parties, the following facts are not in dispute: 1. The claimant worked as a security guard of the respondent at the material time; 2. The claimant’s employment was terminated owing to a closure of business by the respondent. **MAIN ISSUES OR QUESTIONS FOR DETERMINATION** In my opinion, the main issues for determination are as follows: 1. Whether the Claimant was an employee of the respondent as envisaged by law; 2. Whether the claimant was dismissed from employment; 3. If so, whether such dismissal was wrongful or unfair; 4. Whether the Claimant is entitled to the reliefs sought. **THE CLAIMANT'S SUBMISSIONS** The Claimant filed written submissions. The Claimant submitted that his Mpesa statement produced in evidence indicates that he worked continuously for three years. That the respondent’s allegation that the claimant’s attendance was irregular is not supported by any evidence. The claimant contended that his retention as a casual labourer for three years amounted to an unfair labour practice contrary to section 37 of the Employment Act. The claimant relied on the authority of ***Kenyatta University v Maina [2022] KECA 1201 (KLR)***. The claimant argued that his dismissal amounted to a redundancy under section 2 of the Employment Act. That he was never given notice that his employment would be terminated. The claimant submitted that there is no evidence to show that the contents of the memo relied upon by the respondent were brought to the attention of the claimant. That the person who allegedly delivered the memo was not called to testify. The claimant argued that the warning letter produced in evidence by the respondent was a fabrication. That there is no way the respondent would have retained the services of the claimant for three years after giving him three warning letters. The claimant pointed out that the respondent was not clear on the reasons for termination of the claimant’s employment. That the respondent alleged absconding on one hand and closure of business on the other hand. The claimant relied on the provisions of section 41(2) of the Employment Act and submitted that his employment was abruptly and illegally terminated by the Respondent without following due process. That he was not issued with a notice nor accorded an opportunity to be heard as envisaged under section 41 of the Employment Act. The Claimant relied on the following authorities: 1. ***Olumbe v Standard Global East Africa Limited [2022] KEELRC 54 (KLR);*** 2. ***Nyambu v Mini Bakeries (Mombasa) Limited [2018] KEELRC 2620 (KLR); and*** 3. ***John Mwinzi Mulwa v Tangren Restaurant & 2 others [2020] KEELRC 765 (KLR).*** The Claimant argued that since the Respondent terminated the Claimant’s employment without justifiable cause, the latter was entitled to the reliefs sought pursuant to sections 35 and 37 of the Employment Act. Relying on section 36 of the Employment Act, the claimant asked for Ksh. 10,000/= being payment in lieu of notice. He asked for Ksh. 120,000/= being damages for unlawful termination pursuant to section 49(1) (c) of the Employment Act and Ksh. 52,500/= for leave days pursuant to section 28 of the Employment Act. The claimant also asked for Ksh. 30,000/= being service pay pursuant to section 35(5) of the Employment Act. The claimant further asked for a certificate of service pursuant to section 51 of the Employment Act. **THE RESPONDENT’S SUBMISSIONS** The respondent also filed written submissions. The respondent maintained that the claimant was never an employee under a contract of service, neither was he ever summarily dismissed. That the cessation was as a consequence of the total closure of its Kibwezi depot due to the economic devastation of the COVID-19 pandemic and after it issued a notice a month earlier. The respondent argued that the Claimant failed to provide any letter of appointment or a written contract of service. It was further argued that the regularity of payment via MPesa does not, by itself, create a permanent contract of service. Further, the Claimant admitted he was paid until the last month he worked, that is after the notice. According to the respondent, under Kenyan law, the nature of the work, in this case "intermittent casual labor" is the determining fact. The respondent submitted that while Section 37 of the Employment Act, deems certain casual work as monthly contracts, it does not apply where the tasks are intermittent and do not meet the aggregate threshold of continuous working days required for a permanent shift. That the claimant during the hearing failed to produce an appointment letter or a written contract that defined a permanent tenure. The respondent argued that under the Kenyan law, the burden of proving a contract of service lies with the party alleging its existence. The Claimant was a casual labourer, and during trial he failed to demonstrate that their terms of engagement meet the threshold of section 37 of the Employment Act. Therefore, he cannot claim the same terminal benefits as a permanent or contractual employee. That the Claimant herein remained a casual by conduct and by the nature of the intermittent tasks performed. The respondent relied on an authority whose copy was not attached. The Respondent relied on its Internal Memo dated 3rd May 2022 and argued that the same clearly indicates a collective management decision to vacate the depot and discontinue business operations entirely. That the claimant ignored the physical reality of a business closure. That when a depot vacates and items are loaded onto trucks, the cessation of employment is an objective fact of frustration of contract. The respondent argued that the closure of its business was an act of survival, not a targeted dismissal of an individual. Therefore, the procedural requirements of Section 41 of the Employment Act are inapplicable as there was no misconduct alleged as the primary cause for the final separation. The respondent further argued that the distinction between a dismissal for cause and a termination due to business closure is critical. Since the Respondent closed its Kibwezi depot, no dismissal occurred in the legal sense; the roles simply ceased to exist. That where a business ceases to exist, the termination of services is a matter of redundancy or cessation of operations, not a "dismissal" targeted at an individual for misconduct or performance. The respondent submitted that the Claimant’s assertion that retention following a warning implies fabrication is a non-sequitur. That the claimant had absconded duty whenever he was expected to show, and the Respondent retaining him with a warning was in accordance to law. According to the respondent, an employer has the discretion to exercise leniency and retain a casual worker despite past warnings for absconding duty. The existence of these letters merely documents a history of performance issues that the Respondent tolerated until the business was no longer viable to remain open due to unforeseeable pandemic. The respondent argued thatsince the Claimant was a casual worker, he is not entitled to one month’s notice pay. Furthermore, a general one-month notice was provided to all staff via the memo of 3rd May 2022. That even if the Claimant disputes receipt, the physical closure of the site constitutes sufficient constructive notice in a defunct business scenario. The respondent submitted that the claimant’s claim for Kshs. 120,000/= is unwarranted where the termination is due to frustration of business and the court awarding 12 months' pay against a closed company for a casual role. That for the claimant to also claim leave pay, service pay and damages for wrongful dismissal is equally contrary to the principles of equity. That under section 35(5) of the Employment Act, service pay does not accrue to intermittent casuals, and as a casual worker, the Claimant is not entitled to pro-rated leave in the same manner as permanent staff, as his daily or monthly rates are presumed to be inclusive of all dues for days worked. There can be no wrongful dismissal where there was no dismissal. The relationship ended because the depot ceased to exist, not through a malicious summary dismissal. **ANALYSIS AND DETERMINATION.** I have carefully considered the evidence on record and given due regard to the submissions made by the parties. **The Law.** Section 9(1) of the Employment Act provides that a contract of service for a period or a number of working days which amount in the aggregate to the equivalent, of three months or more or which provides for the performance of any specified work which could not reasonably be expected to be completed within a period or a number of working days amounting in the aggregate to the equivalent of three months, shall be in writing. According to section 9(2) of the same Act, an employer who is a party to a written contract of service shall be responsible for causing the contract to be drawn up stating particulars of employment and that the contract is consented to by the employee by signing his name thereof or imprinting thereon an impression of his thumb or one of his fingers in the presence of a person other than his employer. Section 10(1) of the Employment Act provides that a written contract of service specified in section 9 shall state particulars of employment which may be given in instalments and shall be given not later than two months after the beginning of the employment. In the authority of ***Martin Ireri Ndwiga v Olerai Management Company [2017] KEELRC 424 (KLR)****,* the court held that: ***“Therefore, where an employer fails to issue an employee with a written contract of service, the word of the employee is to be believed. The contract of service is not only useful to the employee but also protects the rights of both the employer and employee in the employment relationship. It is therefore to the benefit of the employer such as the respondent to issue a contract of service/employment stating the terms and conditions of such employment.”*** Similarly, in ***Maina v Muchai [2022] KEELRC 12758 (KLR)***, the court observed: ***“Where the employer fails to issue the employee with any form of contract and remains an employee under oral term contract and without compliance to Section 10(2) of the Act, such an employee becomes protected pursuant to the provisions of Section 37 of the Act. Therefore, where an employee is under an oral contract and continues to perform the same duties for the employer continuously and for periods exceeding 3 months, a written contract should be issued.”*** Section 10(7) of the Employment Act provides that, if in any legal proceedings an employer fails to produce a written contract or the written particulars, prescribed in subsection (1) the burden of proving or disproving an alleged term of employment stipulated in the contract shall be on the employer. In other words, where the employer fails to issue a written contract of service for any employment exceeding three months, the terms of employment shall be construed against such employer. Section 28(1)(a) of the Employment Act stipulates that an employee shall be entitled, after every twelve consecutive months of service with his employer, to not less than twenty one working days of leave with full pay. Section 35(1)(c) of the same Act provides that where the contract is to pay wages or salary periodically at intervals of or exceeding one month, a contract terminable by either party at the end of the period of twenty-eight days next following the giving of notice in writing. According to section 35(5) of the Employment Act, an employee whose contract of service has been terminated under subsection (1) (c) shall be entitled to service pay for every year worked, the terms of which shall be fixed. Section 36 of the Employment Act provides for payment in lieu of notice in the following terms: ***“Either of the parties to a contract of service to which section 35(5) applies, may terminate the contract without notice upon payment to the other party of the remuneration which would have been earned by that other party, or paid by him as the case may be in respect of the period of notice required to be given under the corresponding provisions of that section.”*** According to section 43(1) of the Act, in any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45. What amounts to unfair termination is defined by section 45 of the Employment Act. The said provision provides that: 1. No employer shall terminate the employment of an employee unfairly; 2. A termination of employment by an employer is unfair if the employer fails to prove— 3. that the reason for the termination is valid; 4. that the reason for the termination is a fair reason— 5. related to the employees conduct, capacity or compatibility; or 6. based on the operational requirements of the employer; and 7. that the employment was terminated in accordance with fair procedure. The above section further provides that a termination of employment shall be unfair where— 1. the termination is for one of the reasons specified in section 46; or 2. it is found out that in all the circumstances of the case, the employer did not act in accordance with justice and equity in terminating the employment of the employee. According to section 47(5) of the Employment Act, for any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer. The remedies for wrongful dismissal or unfair termination are contained in section 49 of the Employment Act. I will revisit the section later. **Analysis.** There is no evidence of a written contract of service between the Claimant and the Respondent. What type of relationship did the claimant and the respondent share? The respondent described the claimant as an intermittent casual worker who was occasionally being compensated for his casual work. The term "intermittent casual worker" is not expressly defined in the Employment Act, 2007. An intermittent casual worker is a worker who is engaged on a casual basis, but not continuously. They are called in only when their services are needed, with breaks between periods of work. They do not have a fixed schedule or guaranteed work. Examples would include a farm worker engaged only during planting and harvesting seasons or a hotel waiter called in only when there are large conferences or weddings. In essence, they are called in when extra labour is required. From the evidence on record, can the claimant be described as an intermittent casual worker? Other than his oral testimony, the claimant produced in evidence a letter dated 24/3/2020. The letter appears to have been authored by the respondent’s witness. The witness did not deny having authored the letter. In the letter, the respondent indicates that the claimant was its employee designated as a security guard at their Kibwezi depot. The claimant further produced a copy of his Mpesa statement for the period between 1/4/2019 to 22/8/2022. The statement shows monthly payments of Ksh. 10,000/= either in full or in instalments from April, 2019 to July, 2022. The claimant stated that the payments were for his salary. This evidence was uncontroverted by the defence. The statement does not show any breaks in the payments. They were being made every month. An intermittent casual labourer cannot be paid monthly for a period of three years. Furthermore, the respondent’s pleadings and evidence are self-defeating. On one hand, the respondent claims that the claimant was an intermittent casual labourer and on the other hand, it claims that the claimant was fond of absconding duty and was given due notice of termination of his services as a member of staff. The respondent through its witness also claimed that the claimant was paid one month’s salary in lieu of notice. This is quite contradictory. If notice was given as was alleged, how and why was the claimant paid one month’s salary in lieu of notice? Section 37 of the Employment Act provides as follows: 1. ***Notwithstanding any provisions of this Act, where a casual employee—*** 2. ***works for a period or a number of continuous working days which amount in the aggregate to the equivalent of not less than one month; or*** 3. ***performs work which cannot reasonably be expected to be completed within a period, or a number of working days amounting in the aggregate to the equivalent of three months or more, the contract of service of the casual employee shall be deemed to be one where wages are paid monthly and section 35(1) (c) shall apply to that contract of service.*** 4. ***In calculating wages and the continuous working days under subsection (1), a casual employee shall be deemed to be entitled to one paid rest day after a continuous six days working period and such rest day or any public holiday which falls during the period under consideration shall be counted as part of continuous working days.*** 5. ***An employee whose contract of service has been converted in accordance with subsection (1), and who works continuously for two months or more from the date of employment as a casual employee shall be entitled to such terms and conditions of service as he would have been entitled to under this Act had he not initially been employed as a casual employee.*** 6. ***Notwithstanding any provisions of this Act, in any dispute before the Employment and Labour Relations Court on the terms and conditions of service of a casual employee, the Employment and Labour Relations Court shall have the power to vary the terms of service of the casual employee and may in so doing declare the employee to be employed on terms and conditions of service consistent with this Act.*** 7. ***A casual employee who is aggrieved by the treatment of his employer under the terms and conditions of his employment may file a complaint with the labour officer and section 86 of this Act shall apply.”*** Section 2 of the Employment Act defines **"casual employee"** as a person the terms of whose engagement provide for his payment at the end of each day and who is not engaged for a longer period than twenty-four hours at a time. From the evidence on record, the claimant herein cannot be described as a casual employee. The Court of Appeal in the authority of ***Silas Mutwiri v Haggai Multi-Cargo Handling Services Limited [2013] eKLR***observedthat: ***“The Employment Act, 2007 has now created a fundamental shift from the previous Employment Act, Cap 226 with regard to who a*casual employee*is. This followed many decades of abuse, violation and disregard of the rights of workers who were classified as*casual workers*or*casual labourers. *This shift has extensive ramifications as any employer who employs an employee for more than three (3) consecutive months and or is on a job that is not expected to end or be finished within this time, the law creates a mandatory provision and coverts such casual employment into term contract status.”*** Similarly, in ***Chemelil Sugar Company v Ebrahim Ochieng Otuon & 2 Others [2015] eKLR***, the Court of Appeal held that employees who, on the facts of that case, were initially engaged as casual employees and worked in various capacities for periods ranging between one year and fifteen years, had their respective contracts of service converted to term contracts by operation of law under section 37 of the Employment Act. From the above authorities, the following propositions emerge: 1. Casual employment cannot lawfully continue indefinitely. 2. Courts look beyond the description adopted by the employer. 3. Section 37 operates automatically once its conditions are met. 4. Long service strongly indicates conversion. 5. Monthly payment is persuasive evidence that the relationship is not truly casual. 6. Ongoing or permanent work ordinarily falls within section 37. 7. Employers who fail to keep statutory employment records face an evidential disadvantage. 8. Once conversion occurs, the employee acquires all statutory protections under the Employment Act, including those applicable to redundancy. Based on the evidence on record, I find and hold that the claimant was not an intermittent casual labourer and if at all he was initially employed on casual basis, the contract of service of the claimant assumed permanency and was deemed to be one where wages are paid monthly and section 35 (1) (c) applies to that contract of servicein terms of section 37*.* The next issue is whether the claimant was dismissed from employment. The Claimant testified that he reported to work on 1/5/2022 but found that the Respondent had carried away the property that the Claimant was guarding. That the Claimant was impliedly dismissed on 1/6/2022. In his Memorandum of claim, the Claimant alleges that he was summarily dismissed. However, the evidence does not show so. The evidence indicates that the Respondent carried away the property that the Claimant was guarding on 1/5/2022 and the last time that the Claimant was paid his wages was on 2/7/2022. That was the salary for the month of June, 2022. The claimant alleged that no notice of termination of his services was issued to him. On the other hand, the respondent alleged that a memo was issued to all employees indicating that the respondent would close down its operations. The memo is dated 3/5/2022 and was addressed to “staffs.” For purposes of clarity, I will reproduce the contents of the main body of the memo as herein below: ***“NOTICE TO VACATE THE DEPOT*** ***As per the reference above, we shall vacate the depot and discontinue our business. In line with that, this serves as a one month notice to all staff for their services. We know this measure is drastic and hard but we urge you to bear with the management due to low business which has proved to be unviable.”*** The respondent argues that there was no dismissal of the claimant from employment but a redundancy owing to the effects of the Covid-19 pandemic on the business. Redundancy is not misconduct by the employee. It is the loss of employment because the employer no longer requires the employee's services due to economic, operational, technological, or structural reasons. Assuming that it was indeed a redundancy, was the proper procedure followed by the claimant? Section 40(1) of the Employment Act provides as follows: ***“An employer shall not terminate a contract of service on account of redundancy unless the employer complies with the following conditions—*** 1. ***where the employee is a member of a trade union, the employer notifies the union to which the employee is a member and the labour officer in charge of the area where the employee is employed of the reasons for, and the extent of, the intended redundancy not less than a month prior to the date of the intended date of termination on account of redundancy;*** 2. ***where an employee is not a member of a trade union, the employer notifies the employee personally in writing and the labour officer;*** 3. ***the employer has, in the selection of employees to be declared redundant had due regard to seniority in time and to the skill, ability and reliability of each employee of the particular class of employees affected by the redundancy;*** 4. ***where there is in existence a collective agreement between an employer and a trade union setting out terminal benefits payable upon redundancy; the employer has not placed the employee at a disadvantage for being or not being a member of the trade union;*** 5. ***the employer has where leave is due to an employee who is declared redundant, paid off the leave in cash;*** 6. ***the employer has paid an employee declared redundant not less than one month's notice or one month's wages in lieu of notice; and*** 7. ***the employer has paid to an employee declared redundant severance pay at the rate of not less than fifteen days pay for each completed year of service.”*** To begin with, the memo is general. Secondly, there is absolutely no evidence to show that it was served upon the claimant herein or that he was made aware of the contents of the same. There is also no evidence to show that the Labour officer was informed of the respondent’s action. Termination due to financial constraints caused by the COVID-19 pandemic is capable of constituting a genuine redundancy under Kenyan law. However, the existence of financial difficulties alone does not make the termination lawful. The employer must still comply with the mandatory procedural requirements under Section 40 of the Employment Act. In the authority of ***Kenya Airways Ltd v Aviation & Allied Workers Union Kenya & 3 others [2014] KECA 404 (KLR),*** the Court of Appeal held that section 40(1) of the Employment Act is merely procedural by its tenor. That it has to be read together with sections 43, 45 and section 47(5) of the said Act. The court further held that to establish a valid defence to a claim for unfair termination based on redundancy, an employer has to prove: 1. the reasons or reasons for termination; 2. that reason for termination is valid; 3. the reason for termination is fair reason based on the operational requirements of the employer; and 4. that the employment was terminated in accordance with fair procedure. In view of the foregoing, I find that the respondent’s actions fall short of a redundancy. The procedure adopted by the respondent to terminate the service of the claimant was highly irregular and unlawful. It was unfair. Having found that the Claimant was wrongfully and unfairly dismissed from employment, it goes without saying that he is entitled to remedy. The remedies for wrongful and unfair dismissal are found in section 49 of the Employment Act. According to section 50 of the Act, the court is supposed to be guided by the provision when considering remedies. I have considered the remedies sought by the Claimant. **Salary in lieu of notice** The claimant was dismissed without notice. However, he was paid salary up to June, 2022 although his services were terminated in May, 2022. That would cover for the salary in lieu of notice. I thus make no award under this head. **Damages for unfair dismissal** Pursuant to section 49(1)(c) of the Employment Act, the Claimant is entitled to the equivalent of a number of months wages or salary not exceeding twelve months based on the gross monthly wage or salary of the employee at the time of dismissal. The Claimant’s salary at the time of dismissal as per the Mpesa transactions was Ksh. 10,000/=. Twelve months is the maximum. Undeniably, a person’s employment is usually one of the most important things in his or her life. It gives not only a livelihood but an occupation, an identity, and a sense of esteem. Nevertheless, the Claimant had a duty to mitigate the loss. It is not clear from the pleadings and evidence whether the Clamant got employment elsewhere and after how long from the time of dismissal. The Claimant did not testify that he was unemployed. It is also not clear whether the Claimant had dependants at the time of dismissal. Given the unclear circumstances, and bearing in mind that the Claimant had a duty to mitigate the loss, I do not think he is entitled to damages equivalent to twelve months salary. I will award him damages equivalent to eight (8) months’ salary calculated as follows: Ksh. 10,000 × 8 = **80,000/=** **Accumulated leave days** It is not clear how the Claimant arrived at the claim for leave days. In his Memorandum of claim, he listed two different figures as an award for pro rata leave days. No contract of service was produced in evidence. It cannot be known how many days the Claimant was entitled to leave, if at all. However, pursuant to section 28(1)(a) of the Employment Act, the Claimant was entitled, after every twelve consecutive months of service with his employer, to not less than twenty one working days of leave with full pay. I will thus adopt twenty one days leave. There is no evidence to show that the Claimant ever went on leave. The Claimant worked from 1/4/2019 to 1/6/2022. That is a period of three years and two months. Payment for accumulated leave days will work out as follows: 10,000 ÷ 30 ×21 × 3 = **21,000/=** The Claimant had only worked for two months into the next year of employment when his services were terminated. **Pro rata leave days** In Latin, *pro rata* directly translates to "in proportion." In the context of employee benefits, pro rata leave refers to the proportionate allocation of leave entitlement for workers who don't work the traditional full-time schedule. Pro rata leave ensures a fair distribution of leave days, regardless of employment status, hours worked, hire date, or last day worked. The standard formula for calculating pro rata leave days is: Full-Time Leave Entitlement x (Number of Months Worked / 12 Months) For purposes of this case, pro rata leave days work out as follows: 21 ×2 ÷12 = 3.5 (rounded off to 4 days). Consequently, the pay for pro rata leave days will be: **10,000 ÷30 × 4 = 1,333/=** **Service pay** Section 35(5) of the Employment Act provides that an employee whose contract of service has been terminated under subsection (1) (c) shall be entitled to service pay for every year worked, the terms of which shall be fixed. According to section 35(6) of the Employment Act, an employee shall not be entitled to service pay if the said employee is a member of— 1. a registered pension or provident fund scheme under the Retirement Benefits Act; 2. a gratuity or service pay scheme established under a collective agreement; 3. any other scheme established and operated by an employer whose terms are more favourable than those of the service pay scheme established under this section; and 4. the National Social Security Fund. There is no evidence to show that the Claimant herein falls under any of the above categories. He is thus entitled to service pay. Case law indicates that service pay is calculated at 15 days for each year of service worked. This was the position in the authorities of ***Felistas Acheha Ikatwa v Charles Peter Otieno [2018] KEELRC 2491 (KLR)*** and ***Elijah Kipkoros Tonui v Ngara Opticians T/A Bright Eyes Limited [2014] KEELRC 715 (KLR)***, among others. Consequently, service pay works out as follows: 10,000 ÷30 ×15 × 3 = **15,000/=** **Unpaid Overtime** Under paragraph 16 of the Memorandum of Claim, the Claimant asked for unpaid overtime for 24 days per year, for three years. However, this claim was omitted in the concluding prayers. Nevertheless, I will proceed to determine whether the Claimant is entitled to overtime pay. In the case of ***Rogoli Ole Manadiegi v General Cargo Services Limited [2016] KEELRC 1607 (KLR)***, the court observed thus: ***“The Trial Court rejected the Claim for overtime on the ground that the Appellant did not attempt to give dates when he worked overtime. The Appellant contends this was misdirection and that he should have been awarded overtime pay of Kshs. 222,350 as pleaded, in view of the Respondent having offered nothing by way of evidence to contradict the Appellant. He relies on Industrial Court case between Meshack Kiio Ikulume v. Prime Fuels Kenya Limited [2013] e-KLR, where the Court held it is the duty of the Employer to keep employment records, including on hours of work. The Court is not able to agree with the Appellant on this ground. It is true the Employer is the custodian of employment records. The Employee, in claiming overtime pay however, is not deemed to establish the claim for overtime pay by default of the Employer bringing to Court such employment records. The burden of establishing hours or days served in excess of the legal maximum, rests with the Employee. The Claimant did not show in the Trial Court when he put in excess hours, when he served on public holidays or even rest days…………………He did not justify the global figure claimed in overtime, showing specifically how it was arrived at, based on the Regulation of Wages [Protective Security Services] Order 1998. He correctly argues on the application of the Order, but gave no consistent evidence showing the hours worked, and how these hours gave rise to the figure of Kshs. 222,350 claimed as the overall overtime.”*** Other than pleading a sum for unpaid overtime, no evidence was led even by way of testimony to prove that the Claimant worked overtime for a certain number of days and was not paid. In my view, the claim for unpaid overtime is in the nature of special damages. It must be specifically pleaded and strictly proved. The Claimant has failed in this endeavor. No award is made under this head. **Certificate of service** Section 51(1) of the Employment Act as read together with rule 22 of the Employment (General) Rules enjoins an employer to issue to an employee a certificate of service upon termination of his employment, unless the employment has continued for a period of less than four consecutive weeks. In this case, I find that the Claimant is entitled to a Certificate of service. **DISPOSITION** It is my finding that the Claimant has proven his case against the Respondent on a balance of probabilities. Consequently, the orders which commend themselves to me, and which I hereby make are as follows: 1. Judgment is hereby entered in favour of the Claimant against the Respondent; 2. I make the following awards; 3. Damages for unfair termination…………………………….Ksh. 80,000/= 4. Accumulated leave days pay………………………………....Ksh. 21,000/= 5. Pro rata leave days pay…………………………………………….Ksh. 1,333/= 6. Service pay………………………………………………………………Ksh. 15,000/= Total………………………………………………………………….**Ksh.117,333/=** 1. The Respondent to issue the Claimant with a Certificate of Service within 45 days from today; 2. The above sums shall be subject to statutory deductions pursuant to section 49(2) of the Employment Act; 3. The decretal sum shall accrue interest at court rates from the date of judgment/decree until payment in full; 4. The Respondent shall bear the costs of the suit. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 14TH DAY OF JULY, 2026.** **Y.A SHIKANDA** **SENIOR PRINCIPAL MAGISTRATE.**