https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1290

Mutai v Chepkorir & another (Cause E011 of 2023) [2026] KEELRC 1290 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1290 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kericho Cause E011 of 2023 AN Mwaure, J May 15, 2026 Between Kipkirui Dominic Mutai Claimant and Hon. Linet Chepkorir aka Toto Women Representative 1st Respondent Office of the Women Representative Bomet County 2nd Respondent Judgment Introduction 1.The Claimant commenced this suit via Memorandum of Claim dated 31st July 2023 seeking the following orders:a.A declaration that the termination of the Claimant’s employment with the 1st and 2nd Respondents was wrongful and unfair.b.General damages for unfair termination/wrongful dismissalc.Payment in lieu of 1-month notice in the sum of Kshs. 165,000/=d.Compensation for unfair termination for a maximum period of 12 months.e.Unpaid full salary in arrears for 4 months (April, May, June, and July 2023 @ Kshs.165,000/=) in the sum of Kshs.660,000/=f.An order of reinstatement of the Claimant to his positiong.Costs of this suit together with interest at court rates; andh.Any other relief that this Honourable Court may deem fit just. Claimant’s case 2.The Claimant avers that he was employed by the 1st Respondent on 3rd October 2022 as County Deputy Manager in the 2nd Respondent’s office, earning a gross monthly salary of Kshs.165,000/= for a five-year term. 3.The Claimant contends that he discharged his duties diligently in line with Chapter 6 of the Constitution. However, he alleges that on 12th March 2023 he received threats to his life from one Godfrey Tonui, the spouse of the 1st Respondent, which he reported to Bomet Police Station. 4.Subsequently, on 20th April 2023, the Claimant avers that 1st Respondent sent someone to collect the office keys, effectively denying him access to his office. Despite notifying the 1st Respondent and later writing a letter dated 26th April 2023 seeking clarification and redeployment, he received no response. 5.The Claimant further avers that Mr. Tonui continued issuing threats of termination and denial of remuneration, though such authority lay solely with the 1st Respondent. 6.The Claimant avers that he has not been paid his salary from April 2023 to date and that his termination was unlawful and procedurally flawed, as he was never issued with a notice to show cause, termination letter, or subjected to disciplinary proceedings as required under the Employment Act. 7.The Respondent entered appearance through the firm of Njeri Maina Law Advocate and later changed to Gacathi & Co. Advocates. The Respondent did not file any response to the Memorandum of claim and the court gave time for the Respondent to comply but failed to do so. 8.The court directed the matter proceed for hearing. Claimant’s evidence in court 9.CW1, the Claimant, adopted his witness statement dated 31st July 2023 together with his list of documents dated even date marked as exhibits 1 to 4 and supplementary list of documents dated 18th June 2025 marked as exhibits 5 to 12 as his evidence in chief. 10.CW1 testified that he started working with the Respondent on 3rd October 2022. He stated that he was not issued with a termination letter or warning letter. He further indicated that he attempted mediation, which proved unsuccessful, and although he met with the 1st Respondent, no agreement was reduced into writing. CW1 added that there were issues concerning his loans, which the 1st Respondent undertook to settle within two months. He further testified that he attended another mediation session in Nakuru, but the Respondents failed to appear, prompting him to revert to court. CW1 accordingly prayed that the court compels the Respondents to settle the outstanding loan and grant the reliefs sought in his claim. 11.In cross-examination, CW1 stated that he met the 1st Respondent for mediation on 28th November 2023. He confirmed that he authored a letter dated 26th April 2023, which is on record before the court. He further stated that in his Memorandum of Claim he sought arrears of unpaid salary for four months and mentioned the issue of a loan, though the same was not pleaded. CW1 added that he holds a Bachelor of Education degree and reiterated that he was not issued with a termination letter. He stated that he worked for several months without remuneration andwrote letters dated 24th April 2023, 22nd May 2023, and 26th April 2023. He further stated that one Mr. Maritim demanded that he surrender the office keys, after which he was denied access to his workstation. 12.The court directed that written submissions to be filed. Claimant’s submissions 13.The Claimant submitted that his employment was unfairly and unlawfully terminated contrary to the Employment Act, 2007. He also submitted that he discharged his duties diligently and had a legitimate expectation to serve the full five-year term, having even secured a personal loan on the strength of his contract. The Claimant invoked sections 107 and 109 of the Evidence Act on the burden of proof, citing Sagala v Sagala [2024] KEHC 5573 (KLR) where the court emphasized that the legal burden of proof rests upon the party asserting a fact. He further relied on the doctrine of legitimate expectation as defined in Black’s Law Dictionary and elaborated in the case of Republic v Kenya Revenue Authority Ex Parte M-Kopa Kenya Limited [2018] KEHC 9059 (KLR), citing De Smith, Woolf & Jowell, Judicial Review of Administrative Action, to argue that his expectation of continued employment ought not to have been thwarted. 14.The Claimant submitted that his termination was procedurally and substantively unfair, in breach of sections 41, 43, and 45 of the Employment Act, as he was not issued with a notice to show cause, afforded representation, or paid in lieu of notice. The Claimant relied on the case of Pandya t/a Ziwa Beach Resort aka Bamburi Beach Resort v Katana [2024] KEELRC 1826 (KLR), where the court held that termination without adherence to procedure was unfair, and Walter Ogal Anuro v Teachers Service Commission [2013] KEELRC 386 (KLR), which established that fairness requires both substantive justification and procedural compliance. The Claimant also relied on Naima Khamis v Oxford University Press (E.A) Ltd [2017] KECA 480 (KLR), where the Court of Appeal held that failure to justify termination renders it unfair. 15.The Claimant further invoked section 45(4) & (5) of the Employment Act, stressing that the Respondents acted unjustly and inequitably. The Claimant argued that despite several attempts at amicable settlement, the Respondents failed to demonstrate goodwill, and he urged the court to exercise its jurisdiction under Article 162(2) of the Constitution and section 12 of the Employment and Labour Relations Court Act, citing the case of Macharia & Anotherv Kenya Commercial Bank Ltd & 2 Others [2012] KESC 8 (KLR) on the principle that jurisdiction flows from the Constitution and statute. The Claimant also pointed out to the Respondents’ indolence and failure to file defence documents despite repeated opportunities. The Claimant relied on the case Mbugua v Njenga & Another [2025] KEELC 4326 (KLR), where the court held that the overriding objective cannot excuse deliberate delay. 16.The Claimant submitted that his evidence remains unrebutted and that he has proved on a balance of probabilities that the Respondents lacked valid reason and failed to follow due process in terminating his employment thus the court should allow his claim as prayed. Analysis and determination 17.The court has considered the pleadings herein and has come up with the three issues for determination;a.Whether the Claimant was unfairly terminated by the Respondent;b.If (a) above is in the affirmative, whether the Claimant is entitled to relief sought; andc.Who bears the costs of the suit. 18.Sections 41, 43 and 45 of the Employment Act provides for substantive justification and procedural fairness in terminating an employee from the workplace. In the locus classic case of Walter Ogal Anuro v Teachers Service Commission (Supra) the court stated as follows:…For a termination of employment to pass the fairness test, there must be both substantive justification and procedural fairness. Substantive justification has to do with establishment of a valid reason for the termination while procedural fairness addresses the procedure adopted by the employer in effecting the termination.” 19.In Naima Khamis v Oxford University Press (E.A) Ltd (Supra) where the Court of Appeal stated as follows:“From the foregoing, termination of employment may be substantively and/or procedurally unfair. A termination is also deemed substantively unfair where the employer fails to give valid reasons to support the termination. On the other hand, procedural unfairness arises where the employer fails to follow the laid down procedure as per contract or fails to accord an employee an opportunity to be heard as by required law.” 20.In Pandya t/a Ziwa Beach Resort aka Bamburi Beach Resort v Katana (Supra) the court held that the Appellant terminated the Respondent’s employment without a valid reason and therefore Respondent’s termination was procedurally unfair. 21.In this instant case, the Claimant had worked for the Respondents until when as per his evidence he received threats to his life from one Godfrey Tonui, the spouse of the 1st Respondent, which he duly reported at Bomet Police Station. There is subsequently OB 19/13/04/2023. On 20th April 2023, the 1st Respondent dispatched an agent to collect the office keys from Claimant, thereby denying him access to his office. Despite notifying the 1st Respondent and later writing a letter dated 26th April 2023 seeking clarification and redeployment from the 1st Respondent, no response was forthcoming. The Claimant further stated that Mr. Tonui persisted in issuing threats of termination and denial of remuneration, though such authority lay exclusively with the 1st Respondent. He averred that he has not received his salary from April 2023 to date and that his termination was unlawful and procedurally flawed, as he was never served with a notice to show cause, a termination letter, nor subjected to any disciplinary proceedings as mandated under the Employment Act. 22.The Respondent despite being aware of the proceedings and having participated in cross-examination of the Claimant they did not file their pleadings or witness statements. They did not seem to take the case with the seriousness it deserved. On 5th February 2026 the Claimant testified and the Claimant’s case was closed. The parties were given opportunity to file their submissions. The Respondents did not file their submissions. 23.On 4th March 2026 the Respondent was given another 7 days to file their submissions and still they did not comply. The Claimant’s evidence was therefore not challenged. There are no documents in the file to assist the defence case.In the absence of any such defence the court finds the Claimant has proved his case. The pleadings and the documents tendered by the Claimant support the Claimant’s case. 24.The court finds that the Claimant has proved his case and so it is held that he was wrongfully and unfairly terminated from his employment. 25.The court holds that the Claimant was unfairly terminated because the Respondents did not give him any valid reason or allow him a fair hearing. He was forced out of his office without proper justification. The court notes that the 1st Respondent, working under the 2nd Respondent, was required to follow the Employment Act being a public officer but failed to do so. Records show that the matter was referred to mediation, which did not succeed, as the Respondents ignored court orders and failed to file their defence documents, showing lack of seriousness. Therefore, the court concludes that the Claimant was unfairly terminated from his job. 26.Since the court has found that the Claimant was unfairly terminated, the court will award the following reliefs:a.Payment in lieu of notice in sum of Kshs.165,000/= in accordance with section 36 of the Employment Act.b.Compensation for unfair termination under section 49(1)(c) of the Employment Act with maximum compensation of three (3) months totalling to Kshs.495,066/=. The Claimant worked for the Respondent for three (3) years.c.The Claimant will be awarded unpaid salary for March and April 2023 amounting to Kshs.330,044/=d.The court will decline the order of reinstatement as it is not tenable under the circumstances. 27.The Claimant will have the costs of the suit. 28.Total awarded is Kshs.990,110/= plus interest at 14% per annum from date of this judgment till full payment. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 15TH DAY OF MAY, 2026.ANNA NGIBUINI MWAUREJUDGEORDERIn view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.A signed copy will be availed to each party upon payment of Court fees.