https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1950

Ochenje v Coronation Electrical Works Ltd (Cause E431 of 2024) [2026] KEELRC 1950 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEELRC 1950 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E431 of 2024 CN Baari, J July 9, 2026 Between Ismael Otieno Ochenje Claimant and Coronation Electrical Works Ltd Respondent Judgment Introduction 1.Before Court is the Claimant’s Statement of Claim, dated 23rd July, 2024, where the Claimant seeks the following remedies as against the Respondent: -i.3 months notice of Kes.141,000ii.January salary to Date ( July 2024) 47000 x7=329,000iii.Service of 1YR 50,000iv.Unpaid overtime Kes.22,600v.Unpaid leave Kes26,000vi.Unpaid site allowances Kes6000x 52weeks=Kes.312,000vii.Amounts To Kes.880,660 2.The Respondent filed a Response to the Claimant’s Claim dated 16th December, 2024, denying the Claimant's claim. 3.The Claimant’s case was heard on 19th February, 2026, with the taking of the Claimant’s evidence, who testified in support of his case, adopted his witness statement, and produced his list and bundle of documents as exhibits in the matter. 4.The Respondent’s case was slated for hearing on 13th May, 2026, but on the hearing date, the Respondent’s Counsel indicated to the court that the Respondent would not be calling any witnesses despite filing two witness statements. The Respondent’s case was then declared closed. 5.Parties did not file submissions in the matter. The Claimants’ Case 6.The Claimant states that he was employed by Coronation Electrical Works Ltd from 17th October 2022 until 22nd December 2023. He states that his employment was unfairly terminated on 22nd December 2023 when his supervisor, Mr. Ravinder Matharu Singh, verbally instructed him to stop reporting to his work station and instead report to the company's office. 7.The Claimant avers that upon reporting to the office, he was issued with a cheque for Kshs.47,000 and instructed to return in January 2024, and that when he reported to the office in January 2024, he was informed that Mr. Matharu was hospitalized in London. He further states that he was told not to resume work and was advised to "report him anywhere" if he wished. 8.The Claimant further states that upon contacting Mr. Matharu by telephone, he received the same response. The Claimant avers that thereafter, he instructed an advocate to issue a demand letter and a reminder to the Respondent, but the Respondent neither responded nor complied with the demands. 9.It is his case that he consequently filed the present claim seeking the intervention of the Court to compel the Respondent to pay his terminal dues. He maintains that he complied with the terms of his employment and the company's rules and regulations throughout his service. 10.Finally, the Claimant prays that this claim be allowed as prayed. The Respondent’s Case 11.The Respondent denies the Claimant's allegations of unfair termination and maintains that the Claimant voluntarily stopped reporting to work in December 2023 without providing any explanation for his absence. 12.The Respondent further denies that the Claimant traveled from Bomet for a meeting to undertake a final account valuation, denies that the Director removed the chair and computer previously used by the Claimant, and also denies that the Director verbally instructed the Claimant not to report to work in January 2024. 13.The Respondent admits that its Director had been admitted to a hospital in London but denies ever having a telephone conversation with the Claimant while hospitalized. The Respondent asserts that it complies with the Constitution and the provisions of the Employment Act, including the obligation to uphold fair labour practices. 14.The Respondent contends further that the Claimant's suit is brought in bad faith, is scandalous, contradictory, and lacks merit. 15.It is the Respondent’s case that this court lacks jurisdiction to determine this matter on the premise that the Claimant has stated that his monthly salary was KShs.47,000, hence the claim falls within the pecuniary jurisdiction of the Chief Magistrate's Court (Employment and Labour Relations Division) rather than the Employment and Labour Relations Court. 16.The Respondent prays that the Claimant’s suit be dismissed with costs. Analysis and Determination 17.The issues that present for determination are:i.Whether this Court has jurisdiction to determine this suit.ii.Whether the Claimant’s employment was unfairly and unlawfully terminated.iii.Whether the Claimant is entitled to the remedies sought. Whether this Court has jurisdiction to determine the suit 18.The Respondent contends that because the Claimant earned a monthly salary of Kshs.47,000, the suit ought to have been filed before the Magistrates' Court. 19.Jurisdiction, they say, is everything, and without which a court must down its tools as was held in Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR). 20.The Employment and Labour Relations Court derives its jurisdiction from Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act. While there is no doubt that Section 29 of the Employment and Labour Relations Court Act, read with Gazette Notice No.6024, delegates jurisdiction on employment matters upon designated Magistrates' Courts, that jurisdiction is concurrent within the prescribed pecuniary limits and does not divest this Court of its original jurisdiction. 21.In Law Society of Kenya v Attorney General & another [2018] KESC 2 (KLR), the court affirmed that the conferment of jurisdiction upon subordinate courts does not oust the original jurisdiction of the Employment and Labour Relations Court. 22.Accordingly, the Respondent's jurisdictional objection is without merit and is dismissed. Whether the Claimant was unfairly terminated 23.The Claimant’s position is that on 22nd December 2023, his supervisor verbally instructed him to stop reporting to his workstation and instead report to the Respondent's office, where he was issued with a cheque for Kshs.47,000 and told to return in January 2024. He avers that on returning in January 2024, he was informed not to resume work. 24.The Respondent, on its part, contends that the Claimant absconded duty in December 2023, while the Claimant maintains that he never deserted duty. 25.The Court notes that despite filing witness statements, the Respondent elected not to call any witness at the hearing in support of its case. 26.It is settled law that pleadings are not evidence, and allegations contained in pleadings must be supported by oral or documentary evidence. The Court of Appeal in CMC Aviation Limited v Mohammed Noor[2015] KECA 775 (KLR), held that averments in pleadings do not amount to evidence unless proved. 27.Guided by the foregoing precedent, I reach the conclusion that the Respondent placed before the Court no evidence whatsoever to support its allegation that the Claimant deserted duty. 28.Further, this court has variously held that where an employer alleges abscondment, it bears the burden of demonstrating the efforts made to contact the employee and to subject the employee to a disciplinary process before treating the employment as terminated. In Felistas Acheha Ikatwa v Charles Peter Otieno [2018] KEELRC 2491 (KLR), the Court held that absenteeism does not relieve an employer of the obligation to comply with procedural fairness under Section 41 of the Employment Act. 29.The Respondent produced no show cause letter, warning letter, notice to resume duty, invitation to disciplinary hearing, or a termination letter as proof of its attempt at complying with Section 41 of the Employment Act, 2007. 30.Similarly, Sections 43 and 45 of the Employment Act impose upon an employer the burden of proving the reasons for termination and of showing that the reasons were valid, fair, and justified. 31.In my considered view, since the Respondent tendered no evidence explaining the separation and further failed to discharge the statutory burden imposed by Sections 43 and 45 of the Employment Act, I find that the Claimant has proved on a balance of probabilities that his employment was unfairly and unlawfully terminated. Whether the Claimant is entitled to the remedies sought Three months' notice pay 32.The Claimant seeks Kshs.141,000 being three months' salary in lieu of notice. 33.Section 35 of the Employment Act provides one month as the minimum notice period. The Claimant has not produced any contract demonstrating entitlement to three months' notice. 34.The Court therefore awards him one month's salary in lieu of notice amounting to Kshs.47,000. Salary from January to July 2024 35.The Claimant seeks salary for seven months after cessation of employment. Salary is payable for work done, and once employment ended in December 2023, there was no legal basis for continued payment of salary absent reinstatement or proof that the employment relationship subsisted. 36.This claim, therefore, fails and is dismissed. Service pay 37.Section 35(5) of the Employment Act entitles an employee to service pay only where the employee is not a member of the National Social Security Fund or any other statutory pension scheme. 38.The Claimant’s employment contract, which he produced in evidence, indicated that the salary of Kshs.47,000 was subject to NSSF, NHIF, and PAYE. Further, the Claimant did not lead any evidence that these statutory contributions were not made or that he was otherwise qualified for service pay. 39.The claim is therefore declined. Overtime 40.Claims for overtime constitute special damages and must be specifically pleaded and strictly proved by work schedules, attendance registers or time sheets. 41.Apart from the pleaded figure of Kshs. 22,600, no evidence was produced demonstrating the additional hours worked. 42.The claim is unfounded, and it fails. Leave pay 43.Section 28 of the Employment Act entitles an employee to annual leave. Although an employee is obligated to prove his case, it is the employer’s legal obligation under Section 74 of the Employment Act to maintain employee records, including leave forms. 44.The Respondent did not produce leave records or other evidence showing that the Claimant had exhausted his leave days. 45.This claim therefore succeeds and is awarded as prayed. Site allowances 46.The Claimant seeks Kshs.312,000 on account of unpaid site allowances. 47.The Claimant’s contract of employment was placed before this court, and the same had no provision entitling the Claimant to site allowances. 48.The claim, therefore, fails. Compensation for unfair termination 49.Although the Claimant did not specifically plead for compensation under Section 49 of the Employment Act, the Statement of Claim, as framed, clearly seeks relief for unfair termination. I say this, further noting that the Claimant was acting in person. 50.Considering that the Claimant served the Respondent for approximately one year and two months, and there being no evidence of misconduct on his part, I deem an award equivalent to five (5) months' salary, sufficient compensation for the unfair termination. 51.In whole, the Claimant’s claim succeeds in terms of the following orders:a.A declaration that the Claimant’s employment was unfairly terminated.b.The Respondent shall pay the Claimant:-i.One month's salary in lieu of notice at Kshs.47,000.ii.Unpaid leave at Kshs.26,000iii.Five (5) months' salary as compensation for the unfair termination at Kshs.235,000/-iv.Interest on i, ii & iii at court rates from the date of judgment until payment in full.v.I make no orders on costs on account that the Claimant acted in person. 52.It is so ordered. SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 9TH DAY OF JULY, 2026.C. N. BAARIJUDGEAppearance:Mr. Ismael Otieno Ochenje the Claimant present in person.Ms. Kiptoo h/b for Mr. Odindo for the RespondentMs. Esther S- C/A