https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/152

Omar v Transafrica Motors Ltd (Cause E459 of 2025) [2026] KEMC 152 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEMC 152 (KLR) Republic of Kenya In the Mombasa Law Courts Cause E459 of 2025 EM Mwamuye, SRM June 25, 2026 Between Mohamed Omar Claimant and Transafrica Motors Limited Respondent Judgment 1.The Claimant, Mohamed Omar, instituted this claim vide a Statement of Claim dated 6th June 2025 alleging that the Respondent unfairly, wrongfully and unlawfully terminated his employment. He seeks payment of notice pay, overtime dues, house allowance, compensation for unfair termination, costs of the suit, interest and issuance of a certificate of service. 2.The Respondent filed a Response to the Statement of Claim dated 19th September 2025 denying liability and maintaining that the Claimant was never a permanent employee but was only engaged intermittently as a relief security guard whenever full-time guards were absent. The Respondent further contends that it never terminated the Claimant's services and that the Claimant voluntarily stopped reporting to work after obtaining permission to attend to his ailing wife. 3.The matter proceeded for hearing on 23rd February 2026. The Claimant testified on his own behalf while the Respondent called one witness, Mr. Musa Kithi Bakari, its Administration and Human Resource Manager. Both parties thereafter filed written submissions. The Claimant's Case 4.The Claimant testified that he was employed by the Respondent in December 2023 as a day security guard stationed at the Respondent's Miritini premises. He stated that he worked from 6.00 a.m. to 6.00 p.m. five days a week and earned a monthly salary of Kshs.17,000. 5.His evidence was that in October 2024, while on his scheduled off days, a colleague telephoned him requesting him to report and relieve him on duty. The Claimant stated that he was at the time attending to his sick wife and informed the colleague that he could not report. 6.According to the Claimant, when he subsequently reported back on his scheduled working day, he was instructed by his superior to go home and await communication. He testified that no communication was ever made thereafter. He further stated that despite making several follow-ups, no explanation was given and no disciplinary proceedings were conducted. 7.The Claimant reported the matter to the Labour Office in Mombasa. He testified that the Labour Office summoned the Respondent but the Respondent failed to attend. 8.It was the Claimant's evidence that he worked continuously until October 2024, was never paid overtime despite working 60 hours per week, was not paid house allowance and that no lawful reason was given for his removal from employment. The Respondent's Case 9.The Respondent's witness, Musa Kithi Bakari, testified that the Claimant was never employed as a permanent security guard. 10.According to RW1, the Claimant was only engaged on a relief basis whenever permanent guards were absent, on leave or where emergencies arose. He stated that the Claimant's engagement was casual, intermittent and dependent on operational requirements. 11.RW1 testified that the Claimant informed the Respondent that his wife was ill and requested time away from work. The request was allegedly granted on the understanding that the Claimant would resume duties once his domestic situation stabilized. 12.RW1 stated that the Claimant never returned to work. Instead, the Respondent later received a demand letter alleging unlawful termination. 13.The Respondent produced the letter dated 4th June 2025 through which it invited the Claimant to resume work as a relief guard. RW1 testified that the invitation remained open and that the Claimant declined to return to work. The Respondent therefore maintains that no termination occurred. Issues for Determination 14.Having considered the pleadings, evidence and submissions, the following issues arise for determination:i.Whether an employment relationship existed between the parties.ii.Whether the Claimant was a casual/relief employee or a regular employee.iii.Whether the Claimant's employment was terminated by the Respondent.iv.Whether the termination, if any, was unfair.v.Whether the Claimant is entitled to the remedies sought. Analysis and Determination Whether an employment relationship existed 15.The Respondent admits throughout its pleadings and evidence that it engaged the Claimant as a security guard. The dispute is therefore not whether the Claimant worked for the Respondent, but rather the nature of that engagement. 16.The Respondent's own pleadings expressly state that:“The Claimant was at times engaged as a security guard at the Respondent's premises." 17.That admission is sufficient to establish that some employment relationship existed between the parties. The Court therefore finds that an employment relationship existed.Whether the Claimant was a casual/relief employee or a regular employee 18.The Claimant asserts that he worked continuously from December 2023 to October 2024, earning Kshs.17,000 per month. 19.The Respondent asserts that he was merely a relief guard. 20.The burden of proving the terms of employment initially lay upon the Claimant. However, once the existence of employment is admitted, Section 10(7) of the Employment Act becomes relevant. 21.The Respondent, as employer, was under a statutory obligation to keep employment records. No attendance records, muster rolls, payment schedules, duty rosters, contracts, vouchers, payroll records or NSSF remittance records were produced to demonstrate that the Claimant worked only occasionally. 22.The Court notes that the Respondent had exclusive custody of such records. 23.The Respondent's case rests largely on oral assertions. 24.Further, the invitation letter dated 4th June 2025 acknowledged that the Claimant had previously rendered services to the Respondent and that the Respondent was willing to allocate him duties once more. That correspondence tends to support the existence of a recognized working relationship. 25.In the absence of employment records from the Respondent and bearing in mind Section 10(7) of the Employment Act, the Court finds that the Respondent failed to displace the Claimant's account of regular employment. 26.The Court therefore finds on a balance of probabilities that the Claimant was an employee of the Respondent and not a mere occasional stranger rendering isolated services. Whether the Claimant's employment was terminated 27.This is the central issue. The Claimant's evidence was that after failing to respond to a colleague's request during his off days due to his wife's illness, he returned to work and was instructed to go home and await communication. 28.The Respondent's position is that the Claimant voluntarily sought time away from work and never returned. 29.The Court notes that the Respondent did not produce: Any leave application. Any letter requesting leave. Any written communication from the Claimant seeking indefinite absence. Any notice to show cause. Any letter demanding the Claimant's return. Any record showing that the Claimant absconded duty. 30.If indeed the Claimant had abandoned work, a reasonable employer would ordinarily document such absence and commence disciplinary proceedings. No such evidence was tendered. 31.The Court further notes that the Respondent's invitation to return to work was only made on 4th June 2025 after receipt of a demand letter and approximately eight months after the alleged separation. 32.That invitation does not explain why the Claimant remained away from work between October 2024 and June 2025. The Court finds the Claimant's version more probable than the Respondent's. 33.The evidence supports the conclusion that the Claimant reported back but was instructed to stay away pending further communication which never came. The Respondent's conduct effectively severed the employment relationship. The Court therefore finds that termination occurred. Whether the termination was unfair 34.Sections 41, 43 and 45 of the Employment Act require an employer to establish both substantive and procedural fairness. Procedural Fairness 35.Respondent produced no evidence that: A disciplinary hearing was conducted; The Claimant was informed of allegations against him; The Claimant was given an opportunity to respond; Any disciplinary process took place. Section 41 was therefore not complied with. Substantive Fairness 36.The Respondent did not establish any valid reason for terminating the Claimant's employment. The evidence shows only that the Claimant was unable to respond to a request made during his off day because he was attending to his sick wife. That circumstance cannot, without more, amount to gross misconduct warranting dismissal. 37.The Respondent therefore failed to prove a valid and fair reason for termination as required by Sections 43 and 45 of the Employment Act. The Court consequently finds that the termination was unfair and unlawful. Remedies 38.One Month Salary in Lieu of Notice- Allowed. Kshs. 17,000 39.Overtime- The Claimant sought Kshs.76,060.51. The burden lay on the Claimant to prove the specific overtime hours worked. Although he alleged working from 6.00 a.m. to 6.00 p.m., no attendance records, duty rosters or work logs were sufficiently produced and proved during hearing to establish the exact overtime claimed. The claim for overtime is therefore declined. 40.House Allowance- The Claimant pleaded that he was never paid house allowance. The Respondent produced no contract demonstrating that house allowance was consolidated within salary. The Court therefore awards house allowance as pleaded: Kshs. 28,050/=. 41.Compensation for Unfair Termination- The Court has considered: The period served (approximately 10–11 months). The absence of disciplinary infractions. The Respondent's failure to follow statutory procedure. The fact that the Respondent later expressed willingness to re-engage the Claimant. Balancing all circumstances, the Court finds an award equivalent to six (6) months' salary fair and reasonable. 6 × Kshs.17,000 =Kshs. 102,000/= 42.Certificate of Service- The Claimant is entitled to a certificate of service pursuant to Section 51 of the Employment Act. The Respondent shall issue the same within thirty (30) days. Final Orders 43.Judgment is entered for the Claimant against the Respondent as follows:a.One month's salary in lieu of notice 17,000b.House allowance 28,050c.Compensation (6 months' salary) 102,000Total 147,050d.The claim for overtime is dismissed.e.The sums awarded shall attract interest at court rates from the date of judgment until payment in full.f.The Respondent shall issue the Claimant with a Certificate of Service within thirty (30) days.g.The Claimant shall have costs of the suit.It is so ordered. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOSFT TEAMS AT MOMBASA THIS 25TH JUNE 2026.……………………………………………….EMILY M. MWAMUYESENIOR RESIDENT MAGISTRATE