Olela v Maasai Bars & Restaurants Limited (Cause 78 of 2023) [2026] KEMC 477 (KLR) (30 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT MOMBASA** **MAGISTRATES COURT CIVIL** **MCELRC CAUSE NO. 78 OF 2023** **CALVINCE ODHIAMBO OLELA….……...………………………….…….…...CLAIMANT** **VERSUS** **MAASAI BARS & RESTAURANTS LIMITED…….…………………………..RESPONDENT** **JUDGEMENT** **Introduction** 1. The Claimant instituted this suit against the Respondent by a Memorandum of Claim dated 3rd March 2023, alleging that the Respondent unlawfully and unfairly terminated his employment and failed to pay his statutory and contractual dues. He seeks payment in lieu of notice, accrued leave, service pay, underpayments, compensation for unfair termination, issuance of a Certificate of Service, costs and interest. 2. The Respondent entered appearance and filed a Response to the Memorandum of Claim together with a witness statement, list of documents and documentary exhibits denying liability. Its position was that the Claimant was employed under a one-month fixed-term contract commencing on 5th February 2020 and ending on 5th March 2020, and that the employment came to an end by effluxion of time rather than through termination. 3. The record shows that the matter proceeded for hearing on 19th January 2024, when the Claimant testified and adopted his witness statement together with the documents filed in support of his claim. The Claimant thereafter closed his case. 4. Although the Respondent had been duly served with the hearing notice, it neither attended Court nor called any witness. Consequently, the Court closed the Respondent's case and directed the parties to file written submissions. Both parties subsequently filed written submissions. **The Claimant's Case** 1. The Claimant pleaded that he was employed by the Respondent as a Kitchen Steward on 16th August 2015 and remained in continuous employment until 5th March 2020. 2. He testified that he initially earned a monthly salary of Kshs.8,000, which was subsequently increased to Kshs.12,000 by the time his employment ended. 3. According to the Claimant, his duties included preparing food for members of staff and undertaking other duties assigned by the Respondent. He worked six days every week and occasionally worked continuously without weekly rest days. 4. He further pleaded that throughout his employment: he was never issued with a written contract; he was never issued with payslips; he was never granted annual leave; he was denied weekly rest days without compensation; he was not properly enrolled in statutory social security schemes for the entire duration of his employment. 5. The Claimant testified that on 5th March 2020, after reporting to work, he was summoned by the Respondent's Director, identified as Mr. John, who informed him that the Respondent had decided to terminate his employment. 6. He stated that: no reason was given for the termination; no notice was issued; no disciplinary hearing was conducted; he was denied his terminal dues despite demanding payment; the Respondent failed to issue him with a Certificate of Service. 7. The Claimant therefore contends that the termination contravened Sections 35, 41, 43, 45 and 49 of the Employment Act and Article 41 of the Constitution. 8. He consequently seeks: one month's salary in lieu of notice; accrued annual leave; service pay; underpayments allegedly suffered between 2016 and 2020; twelve months' salary as compensation for unfair termination; issuance of a Certificate of Service; costs and interest. 9. To support his case, the Claimant produced, among other documents: his witness statement; NHIF contribution records; NSSF records; demand letter; copy of his national identity card. These documents were admitted as exhibits. **The Respondent's Case** 1. The Respondent filed a Statement of Response denying the Claim. It pleaded that: the Claimant was employed only on 5th February 2020; the employment was governed by a written one-month fixed-term contract; the contract expired on 5th March 2020; the Claimant earned a consolidated salary of Kshs.12,000; he was paid all monies due upon expiry of the contract; no dismissal or termination occurred because the contract simply lapsed. The Respondent denied liability for notice pay, leave pay, service pay, underpayments and compensation. 2. It further pleaded that because the employment ended by effluxion of time, Sections 35, 41, 43 and 45 of the Employment Act were inapplicable. 3. The Respondent filed: a witness statement by Geoffrey Shitsukane Nanyendo; an employment contract; payslip; M-Pesa payment records. 4. However, despite being served with the hearing notice, the Respondent failed to attend Court on 19th January 2024 when the matter came up for hearing. 5. The Respondent therefore called no witness, produced no documentary exhibits, and consequently its case was marked as closed. 6. Although the Respondent filed pleadings, witness statements and documents, none of those documents were formally produced during trial through a witness. 7. It is trite that pleadings are not evidence. Similarly, witness statements only become evidence upon adoption by the maker during oral testimony, while documents filed with pleadings become exhibits only after being produced and admitted by the Court. 8. Consequently, the Respondent's filed witness statement and documentary evidence remained unproved and cannot be treated as evidence upon which factual findings may be made. 9. The Court is therefore left with: the pleadings filed by both parties; the uncontroverted oral testimony of the Claimant; the documentary exhibits produced by the Claimant; the submissions filed by both parties. 10. The Court nevertheless remains under a duty to evaluate the Claimant's evidence and determine whether he has discharged the legal burden imposed by Sections 107 and 109 of the Evidence Act. The mere fact that the Respondent failed to adduce evidence does not automatically entitle the Claimant to judgment. The Claimant must still prove his case on a balance of probabilities. 11. The Court of Appeal in CMC Aviation Ltd v Mohammed Noor [2015] eKLR observed that where no evidence is called by the defence, the plaintiff's evidence remains uncontroverted, though the court must still satisfy itself that the claim has been proved to the requisite standard. 12. Likewise, in Trust Bank Limited v Paramount Universal Bank Limited & 2 Others [2009] eKLR, the Court held that where evidence is not challenged through cross-examination or rebuttal, such evidence generally stands unless inherently incredible or inconsistent with the law. 13. The Court shall therefore determine the dispute principally on the basis of the evidence tendered by the Claimant, while considering the legal issues raised in the Respondent's pleadings and submissions. **Issues for Determination** 1. Having considered the pleadings, evidence and submissions, the following issues arise for determination: 2. Whether the Claimant proved that he was employed by the Respondent from 16th August 2015 to 5th March 2020. 3. Whether the Claimant's employment was unlawfully and unfairly terminated. 4. Whether the Claimant is entitled to the remedies sought; and 5. Who should bear the costs of the suit. **Analysis and Determination** Whether the Claimant proved that he was employed by the Respondent from 16th August 2015 to 5th March 2020 1. The first and central issue in this dispute concerns the nature and duration of the employment relationship between the parties. 2. The Claimant maintains that he was employed as a Kitchen Steward on 16th August 2015 and worked continuously until 5th March 2020, a period of approximately five years. 3. Conversely, the Respondent pleaded that the Claimant was employed only on 5th February 2020 under a one-month fixed-term contract which expired on 5th March 2020. 4. The Court must therefore determine which version is supported by the evidence. 5. The Claimant testified on oath that he commenced employment in August 2015. He stated that he initially earned Kshs.8,000 per month and that his salary gradually increased until it reached Kshs.12,000 per month by the time his employment came to an end. He further testified that he worked continuously as a Kitchen Steward throughout that period. Importantly, the Claimant produced documentary evidence comprising his NHIF Statement and NSSF Statement. 6. The NHIF records demonstrate that contributions on behalf of the Claimant had been made well before February 2020. The statement reflects contributions made as early as 2018. 7. Similarly, the NSSF records identify the Respondent as the Claimant's employer and show statutory remittances during the course of the employment relationship. 8. Although the Respondent disputes the duration of employment, it did not attend Court to challenge either the Claimant's testimony or the authenticity of the statutory records produced. 9. The Court notes that statutory records generated by public bodies such as NHIF and NSSF constitute independent documentary evidence whose probative value cannot lightly be disregarded. 10. Although the NHIF statement does not by itself establish employment from August 2015, it significantly undermines the Respondent's pleaded position that employment only commenced on 5th February 2020. 11. Had the Claimant truly been engaged only on 5th February 2020, there would have been no explanation for statutory contributions reflected several years earlier. 12. The Respondent had every opportunity to explain these inconsistencies by calling its manager, payroll officer or human resource officer. It elected not to do so. 13. The Court is therefore left with unrebutted documentary evidence indicating that the employment relationship predated February 2020. The Court further notes that the Respondent pleaded that the parties executed a written fixed-term contract dated 5th February 2020. Ordinarily, such a contract would be an important piece of evidence. However, although filed together with the Response, the contract was never produced as an exhibit because the Respondent failed to attend the hearing. 14. A document filed in Court but not produced through a witness does not become evidence merely because it forms part of the court record.This position has consistently been affirmed by superior courts, which have held that documents annexed to pleadings only acquire evidentiary value once formally produced during trial. 15. Accordingly, this Court cannot rely on the alleged fixed-term contract as proof that the Claimant's employment commenced only in February 2020. 16. The Respondent's submissions extensively rely on the said contract. However, submissions cannot fill evidential gaps. 17. As was stated by the Court of Appeal in Daniel Toroitich arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR, submissions are not evidence and cannot substitute proof. Similarly, the Respondent relied heavily on authorities concerning expiry of fixed-term contracts. Those authorities correctly state the law but are distinguishable on the facts before this Court. 18. Cases such as Registered Trustees of the Presbyterian Church of East Africa & Another v Ruth Gathoni Ngotho-Kariuki [2017] eKLR; Bernard Wanjohi Muriuki v Kirinyaga Water & Sanitation Company Ltd & Another [2012] eKLR; Transparency International Kenya v Omondi [2023] KESC 70 (KLR); and Margaret A. Ochieng v National Water Conservation & Pipeline Corporation [2014] eKLR all involved situations where the existence and terms of the fixed-term contracts were proved by admissible evidence. In the present case, the alleged fixed-term contract was never proved. Consequently, those authorities cannot assist the Respondent. 19. The Court instead finds guidance in Section 10(7) of the Employment Act, which provides that where an employer fails to produce written particulars of employment, the burden of proving or disproving an alleged term of employment shifts to the employer. 20. The Respondent neither attended Court nor produced any admissible employment records capable of rebutting the Claimant's evidence. Equally relevant is Section 74 of the Employment Act, which obligates employers to keep employment records. Where such records are not produced, the Court is entitled to draw an adverse inference against the employer. The Court therefore accepts the Claimant's testimony that he served the Respondent continuously before March 2020. 21. The Court is satisfied that the Claimant has proved, on a balance of probabilities, that he was employed by the Respondent well before 5th February 2020. 22. However, while the evidence clearly establishes continuous employment prior to February 2020, the Court must also evaluate whether the Claimant has proved the precise commencement date of 16th August 2015. 23. Apart from his oral testimony, no documentary evidence such as appointment records, attendance registers, salary records or witness testimony was produced specifically confirming that exact commencement date. Nevertheless, the Respondent offered no contrary admissible evidence. 24. Considering the totality of the evidence, particularly the NHIF and NSSF records which contradict the Respondent's pleaded case, the Court finds no reason to disbelieve the Claimant's testimony. 25. Accordingly, the Court finds that the Claimant has established, on a balance of probabilities, that he served the Respondent from 16th August 2015 until 5th March 2020. Whether the Claimant's Employment was Unfairly and Unlawfully Terminated 1. Having found that an employment relationship existed between the parties, the next issue is whether the cessation of that relationship amounted to unfair termination within the meaning of the Employment Act, 2007. 2. Sections 41, 43 and 45 of the Employment Act establish the substantive and procedural safeguards that every employer must observe before terminating an employee's contract of service. 3. Section 43 requires an employer to prove the reasons for termination. Section 45 requires those reasons to be valid and fair. Section 41 further requires that before termination, the employee must be informed of the allegations against him in a language he understands, be afforded an opportunity to respond, and be allowed to be accompanied by a fellow employee or shop floor representative where applicable. 4. The Claimant testified that on 5th March 2020, after reporting to work, he was summoned by the Respondent's Director, identified as Mr. John, and informed that his services had come to an end. 5. He stated that: no reason was given; no notice was issued; no disciplinary hearing was conducted; he was never invited to explain himself; he was simply told that his employment had been terminated. This evidence remained completely unchallenged. 6. The Respondent, having elected not to attend the hearing, offered no admissible evidence explaining the circumstances under which the employment relationship came to an end. 7. Consequently, the Respondent failed to discharge the statutory burden imposed by Section 43(1) of the Employment Act. 8. The Court of Appeal in Kenfreight (EA) Limited v Benson K. Nguti [2016] eKLR reaffirmed that once termination is established, the employer bears the burden of proving valid reasons for termination together with procedural fairness. 9. Similarly, in Walter Ogal Anuro v Teachers Service Commission [2013] eKLR, the Court held that for termination to pass the fairness test, an employer must establish both substantive justification and procedural fairness. This Court respectfully adopts that reasoning. 10. In the present case, neither element has been demonstrated. No valid reason has been proved. No disciplinary process has been proved. No notice has been proved. No hearing has been proved. 11. Accordingly, the Court finds that the Claimant's employment was terminated in violation of Sections 35, 41, 43 and 45 of the Employment Act. The termination was therefore both procedurally unfair and substantively unfair. Whether the Claimant is Entitled to the Reliefs Sought 1. Having found that the Claimant has proved the existence of an employment relationship and that the termination was unfair and unlawful, the Court now considers each of the remedies sought. One Month's Salary in Lieu of Notice 1. The Claimant seeks one month's salary in lieu of notice amounting to Kshs.12,000. Section 35(1)(c) of the Employment Act requires either party to give at least twenty-eight days' notice before terminating a contract where wages are paid monthly. Where no notice is given, Section 36 entitles the employee to payment in lieu thereof. 2. The Claimant testified that he was dismissed immediately without any notice. As already observed, the Respondent failed to adduce evidence to demonstrate that notice was issued. The Court therefore finds that the Claimant is entitled to one month's salary in lieu of notice. Accrued Annual Leave 1. The Claimant seeks Kshs.60,000 being accrued annual leave for the entire period of employment. Although the Respondent failed to produce leave records as required under Sections 10(7) and 74 of the Employment Act, the claim is nevertheless subject to the limitation period prescribed under Section 90 of the Employment Act. 2. A claim for annual leave accrues upon the employee becoming entitled to take leave at the end of each leave cycle. Such a claim must therefore be brought within three years from the date the entitlement accrued. The present suit was instituted on 3rd March 2023. Consequently, leave claims that accrued before 3 March 2020 are statute-barred. 3. Since the Claimant's employment terminated on 5th March 2020, he had not completed another leave cycle capable of giving rise to a fresh leave entitlement after the limitation cut-off date. The entire claim for accrued leave is therefore time-barred and cannot be sustained. The prayer for Kshs.60,000 under this head is accordingly dismissed. Service Pay 1. The Claimant seeks Kshs.30,000 being service pay. Section 35(5) of the Employment Act provides for service pay where an employee's contract is terminated after serving for the requisite period. 2. However, Section 35(6) expressly excludes employees who are members of: the National Social Security Fund (NSSF); a registered pension scheme; a gratuity scheme established under a collective agreement; or any other statutory social security scheme. The Claimant himself produced both NHIF and NSSF records. 3. Although the Claimant complained that statutory deductions were not consistently remitted throughout the employment period, the NSSF statement confirms that he was a contributing member of the NSSF. The law is now settled that membership to the NSSF disentitles an employee from claiming service pay under Section 35(5). 4. In Krystalline Salt Limited v Kwekwe Mwakele & 67 Others [2017] eKLR, the Court of Appeal held that an employee who is a member of the NSSF is not entitled to service pay under Section 35(5) of the Employment Act. The Court is bound by that decision. Accordingly, the claim for service pay fails. Underpayment of Wages 1. The Claimant claims Kshs.136,372.90/= on account of alleged underpayment between May 2016 and March 2020. The burden lay upon the Claimant to establish: the applicable Regulation of Wages Order; the category of employment into which he fell; the prescribed statutory minimum wage for every relevant period; the actual wages received; the computation of the alleged shortfall. 2. Although the Claimant pleaded figures for the alleged underpayments, he did not produce before the Court: the relevant Regulation of Wages Orders; a computation demonstrating how the figures were arrived at; or evidence showing the applicable wage category for a Kitchen Steward during each of the relevant years. 3. While the Court is empowered to take judicial notice of subsidiary legislation, claims for underpayment remain claims in the nature of special damages and must be specifically pleaded and strictly proved. 4. The Court of Appeal in Douglas Odhiambo Apel & Another v Telkom Kenya Limited [2014] eKLR reiterated that special damages must not only be pleaded but must also be strictly proved. Similarly, in employment disputes alleging underpayments, courts have consistently required proper computations based on the applicable Wage Orders. 5. In the absence of adequate evidential material demonstrating the basis of the computation, the Court is unable to verify the figure claimed. Accordingly, this head of claim is declined. Compensation for Unfair Termination 1. The Claimant seeks compensation equivalent to twelve months' salary under Section 49(1)(c) of the Employment Act. Having found that the termination was both procedurally and substantively unfair, the Court has discretion to award compensation. 2. In exercising that discretion, the Court has considered the factors under Section 49(4) of the Employment Act, including: the length of service; the circumstances under which the employment came to an end; the Respondent's complete failure to comply with the mandatory provisions of the Employment Act; the absence of any valid reason for termination; the fact that the Claimant was not subjected to any disciplinary process; the absence of any evidence of misconduct on the part of the Claimant. 3. The Court has equally considered that the Claimant served the Respondent for approximately five years. Nevertheless, compensation under Section 49 is discretionary and is not automatically awarded at the maximum of twelve months' salary. 4. Considering all the circumstances of this case, the Court finds that an award equivalent to eight (8) months' gross salary adequately compensates the Claimant for the unfair termination. Certificate of Service 1. Section 51 of the Employment Act obligates every employer to issue a Certificate of Service upon termination of employment unless the employment lasted less than four consecutive weeks. 2. The Claimant served for approximately five years. The Respondent was therefore under a statutory obligation to issue the Certificate. The Court orders the Respondent to issue the Claimant with a Certificate of Service within thirty (30) days from the date of this judgment. **Disposition** 1. Accordingly, judgment is entered for the Claimant against the Respondent as follows: 2. A declaration is hereby issued that the termination of the Claimant's employment was unfair and unlawful. 3. The Claimant is awarded: 4. Kshs.12,000 being one month's salary in lieu of notice; 5. Kshs.96,000 as compensation for unfair termination. 6. The claims for service pay and underpayments are dismissed. Total Award: Kshs.168,000. 1. The Respondent shall issue the Claimant with a Certificate of Service within thirty (30) days of this judgment. 2. The Claimant shall have costs of the suit. 3. The decretal sum shall attract interest at court rates from the date of judgment until payment in full. Orders accordingly. **DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOSFT TEAMS AT MOMBASA THIS 30TH JULY 2026.** **……………………………………………….** **EMILY M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**