https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1745

Ng’ang’a v Africa Film & TV Talent Training Institute (Cause E831 of 2021) [2026] KEELRC 1745 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1745 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E831 of 2021 CN Baari, J June 25, 2026 Between Edwin Gacuga Ng’ang’a Claimant and Africa Film & TV Talent Training Institute Respondent Judgment Introduction 1.Before Court is the Claimant’s Statement of Claim, dated 4th October, 2021, and filed on 6th October, 2021, where the Claimant seeks the following remedies as against the Respondent: -a.Payment of one month’s pay in lieu of notice, withheld salary for November 2017, December 2017, January 2018, February 2018, April 2018, March 2020, April 2020, May 2020, June 2020, July 2020, August 2020, September 2020, October 2020, November 2020, December 2020, January 2021, February 2021, and March 2021, together with withheld balance December 2018 and February 2020, all amounting to Kshs. 1,622,600/-.b.Damages for unlawful termination of employment.c.Interest on (a) and (b) at the court’s rate.d.An order compelling the Respondent to furnish the Claimant with a certificate of service.e.costs of the suit 2.The Respondent did not file a Response to the Claimant’s Claim even after being allowed leave to do so long after the pleadings had closed. 3.The Claimant’s suit was heard on 9th March, 2026, with the taking of the Claimant’s evidence, who testified in support of his case, adopted his witness statement, and produced their list and bundle of documents as exhibits in the matter. The Claimants’ Case 4.The Claimant states that he was employed by the Respondent, then known as Triple Edge Media Ltd, on or about 15th June 2016 as a Tutor/Trainer and Studio Technician under a written contract of service. He avers that his employment was governed by the terms and conditions of that contract, and that he earned a gross monthly salary of Kshs. 108,245 and a net monthly salary of Kshs. 82,000. 5.The Claimant states that despite working hard and diligently, the Respondent wrongfully, unlawfully, unfairly and without cause withheld his entire salary for November 2017, December 2017, January 2018, February 2018, April 2018, March 2020, April 2020, May 2020, June 2020, July 2020, August 2020, September 2020, October 2020, November 2020, December 2020, January 2021, February 2021, and March 2021. 6.The Claimant further avers that the Respondent has also wrongfully, unlawfully, unfairly, and without cause withheld the balance of his salary for the months of December 2018 and February 2020. 7.It is his case that despite the Respondent making statutory deductions from his salary, the same were never remitted to the relevant authorities in the entirety of his employment. 8.The Claimant further contends that on 24th March, 2021, he received a letter through his email dated 18th January, 2021, informing him that his employment had been terminated as of the date of the letter. He avers that the letter was received a few days after a demand letter was served upon the Respondent demanding payment of his withheld salary. 9.It is his case that the Respondent, contrary to the rules of natural justice and the Kenya labour laws terminated his employment without cause or notice. He further avers that the Respondent has refused to compute his legally entitled dues and to furnish him with a certificate of service, contrary to the requirements of the law. 10.It is the Claimant’s position that the Respondent’s refusal to pay him his rightful dues as required by the law amounts to unfair labour practices contrary to his contractual, statutory, and constitutional rights to fair labour practices. 11.The Claimant avers that as a result of the Respondent’s unlawful and illegal actions, he has suffered injury, loss, and damage for which he now claims compensation. 12.It is his case that his claim is for payment of terminal dues computed in the sum of Kshs. 1, 622, 600/-. 13.Finally, the Claimant prays that this claim be allowed as prayed. Analysis and Determination 14.Having considered the pleadings, the Claimant's oral and documentary evidence, the issues that fall for determination are:i.Whether the Claimant's employment was unlawfully and unfairly terminated.ii.Whether the Claimant is entitled to the reliefs sought. Whether the Claimant's employment was unlawfully and unfairly terminated 15.The Claimant’s position is that he was wrongfully, unlawfully, and unfairly terminated from the service of the Respondent without notice and without cause. The Respondent, on its part, neither filed a Statement of Response nor participated in the proceedings despite being granted leave to do so. This goes to say that the Claimant's evidence remains uncontroverted. 16.The absence of a defence however, does not automatically entitle a Claimant to judgment. The Claimant must still discharge the legal burden of proving his case on a balance of probabilities. This principle was affirmed by the Court of Appeal in CMC Aviation Limited v Mohammed Noor[2015] KECA 775 (KLR), where the Court held that the burden of proving unfair termination remains on the employee, notwithstanding the employer's failure to adduce evidence. 17.The existence of an employment relationship is not disputed. The documentary evidence produced by the Claimant demonstrates that he was employed by the Respondent vide a letter dated 29th June, 2015. 18.The Claimant further testified that on 24th March 2021, he received via email a termination letter dated 18th January 2021 informing him that his employment had been terminated. According to the Claimant, the letter was transmitted only after he had instructed counsel to issue a demand for payment of salary arrears. 19.The Respondent did not place before Court any evidence explaining the reasons for the termination of the Claimant’s contract or demonstrating compliance with the mandatory procedural safeguards under the Employment Act. Section 43(1) of the Employment Act obligates an employer to prove the reason or reasons for terminating an employee's employment, and if the employer fails to do so, the termination is deemed unfair. 20.Further, Section 41 of the Employment Act requires an employer contemplating termination on grounds of misconduct, poor performance, or physical incapacity to notify the employee of the allegations, hear the employee in the presence of a fellow employee or shop floor representative if desired, and consider the employee's representations before making the decision. 21.The mandatory nature of Section 41 was emphasized by the Court of Appeal in Kenfreight (E.A.) Limited v Benson K. Nguti[2016] KECA 409 (KLR), where the Court held that both substantive justification and procedural fairness must be satisfied before termination can pass the fairness test under the Employment Act. 22.The Respondent, by failing to participate in the matter, has failed to demonstrate any valid or fair reason for terminating the Claimant's employment pursuant to Sections 43 and 45 of the Employment Act or that he was accorded fair process as required by Section 41. 23.The Court, in the circumstances, has no difficulty finding that the Claimant has proved, on a balance of probabilities, that his employment was terminated unfairly and unlawfully, and so I hold. Whether the Claimant is entitled to the remedies sought Withheld Salaries 24.The Claimant seeks payment of withheld salary for numerous months between November 2017 and March 2021, together with balances allegedly withheld for December 2018 and February 2020, all amounting to Kshs. 1,622,600. 25.Salary is a contractual entitlement protected under Sections 17 and 18 of the Employment Act and becomes payable once an employee has rendered services unless there exists a lawful justification for withholding payment. 26.The Respondent did not challenge the Claimant's assertion that he worked during the periods claimed or offer any explanation for non-payment of the claimed arrears. The Claimant has placed before this court a demand letter dated 22nd March, 2021, to the Respondent, demanding payment of salary arrears for the months of November 2017, December 2017, January 2018, February 2018, April 2018, and the balances for December 2018, February 2020, and March 2020, amounting to Kshs. 820,000/- . 27.Also before court is the Respondent’s response dated 12th March, 2018, to another of the Claimant’s demand for salary arrears, where it admits owing the Claimant on account of the salary arrears. 28.. The documents in my view sufficiently demonstrate prolonged salary arrears consistent with the Claimant's testimony. The Respondent, having elected not to controvert this evidence, left the documentary evidence unchallenged. 29.The Court therefore finds that the Claimant has proved his entitlement to the unpaid salary. The Claimant’s claim on this account is allowed as prayed. Statutory deductions 30.Regarding the allegation that statutory deductions were deducted but not remitted, while such conduct would amount to a breach of statutory obligations, the Court notes that no specific monetary relief has been sought in that respect, and I let it rest. Notice pay 31.Having found that the termination of the Claimant’s employment was unfair, entitles him to one month's salary in lieu of notice pursuant to Section 35 and Section 36 of the Employment Act. 32.This claim thus succeeds. Damages for unfair termination 33.Section 49(1)(c) Employment Act, 2007, empowers the Court to award compensation of up to twelve months' gross salary, while taking into account the factors under Section 49(4) of the same Act. 34.The Claimant served the Respondent for approximately four years and nine months. The evidence demonstrates a prolonged salary default that culminated in his termination shortly after he demanded payment of his salary arrears. 35.The Respondent neither offered any justification for the termination nor participated in these proceedings. The Claimant evidently did not contribute to the unfair termination. 36.In the circumstances, the Court finds an award equivalent to six (6) months' salary sufficient compensation for the unfair termination, and which is hereby awarded. Certificate of service 37.Section 51 of the Employment Act imposes a mandatory duty upon every employer to issue to an employee whose employment has been terminated a certificate of service. 38.This entitlement is statutory and does not depend on the manner in which employment came to an end. Accordingly, the Respondent shall issue the Claimant with a certificate of service within fourteen (14) days of this judgment. 39.In the end, the Claimant’s Claim succeeds in terms of the following orders: -a.A declaration that the termination of the Claimant’s employment was unfair and unlawful.b.An order that the Respondent pay the Claimant salary arrears in the sum of Kshs. 1,458,600/-c.One month's salary in lieu of notice at Kshs. 82,000/-d.Six months' salary as compensation for the unfair termination at Kshs. 492,000/-e.The Respondent issues the Claimant a certificate of service within 14 days of this Judgment.f.The Claimant shall have the costs of the suit and interest on (b) to (d) at court rate from the date of judgment until payment in full. 40.It is so ordered. SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 25TH DAY OF JUNE, 2026.C. N. BAARIJUDGEAppearance:Mr. Ng’ang’a h/b for Mr. Kuria for the ClaimantN/A for the RespondentMs. Esther S- C/A