https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1878

Shuriya v Malindi Dishes Limited (Employment and Labour Relations Cause E633 of 2025) [2026] KEELRC 1878 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEELRC 1878 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Cause E633 of 2025 HS Wasilwa, J July 2, 2026 Between Bashir Ali Shuriya Claimant and Malindi Dishes Limited Respondent Judgment 1.The Claimant instituted this claim vide a Memorandum of Claim dated 4th July 2025 and prays that this Court grants him an award as follows:i.A declaration be issued that the Respondent is practicing unfair labour process at its work place and has violated the Claimant's Labour and Constitutional Rights.ii.Payment of:a.Salary for January, 2025.b.Compensation for leave days.c.Compensation for all holidays.d.One-month salary in lieu of notice.e.12 months’ salary for unfair labour practice and illegal termination.f.House allowance for the period of work to be determined by the Honourable court.g.General damages for unlawful termination.h.Costs.i.Interests.iii.Any other relief this Honourable Court may deem just to grant. Claimant’s Case 2.The Claimant avers that he was employed by the Respondent as a cashier at an agreed monthly salary of Kshs. 30,000. 3.He avers that he worked for the Respondent from April 2021 to May 2022 and thereafter from November 2022 to January 2025, the intervening period having been occasioned by illness arising from ear problems. 4.He further avers that in the course of his employment he was at times deployed to undertake other duties beyond his cashier role. 5.The Claimant avers that throughout the period he worked for the Respondent he had no complaints raised against him, no disciplinary proceedings were ever conducted against him, and he served with dedication and loyalty. 6.He contends that he never absconded duty and was at his place of work when the Respondent terminated his services in January 2025 without any notice. Upon termination, no terminal dues were paid to him, including his salary for January 2025. 7.It is the Claimant's case that during the entire period of his employment he was never granted leave and worked through public holidays. Further, while he was not paid house allowance, he was housed in a hostel by the Respondent. 8.The Claimant reported the matter to the Labour Office in Nairobi, where a labour officer computed his claim to include his January 2025 salary, one month's notice pay, compensation for leave days, and twelve (12) months' salary for unfair termination. 9.He avers that upon a demand being made by his advocates, the Respondent through his advocate alleged that the Claimant had absconded duty, an allegation the Claimant denies, and further alleged that his dues had been left at the Nairobi Labour Office. 10.It is the Claimant's case that the Respondent was summoned by the labour officer but failed to appear on the dates fixed for a joint meeting, thereafter attended alone in the Claimant's absence, and subsequently alleged that the Claimant's case had been dismissed, which allegation the Claimant denies. 11.The Claimant submits that his termination was without notice, without cause, and without payment of any terminal dues, therefore, it is contrary to fair labour practices and violates his labour and constitutional rights. Respondent’s Case 12.In opposition to the Claim, the Respondent filed a Statement of Defence dated 7th August 2025. 13.The Respondent admits to the Claimant's former employment status. It however denies that the Claimant's services were terminated without notice and avers that the termination was lawful, procedurally fair, and for valid reasons consistent with its internal disciplinary procedures, which were well communicated to the Claimant. 14.It is the Respondent's case that the Claimant was subjected to a fair disciplinary process and was given an opportunity to respond to the allegations against him, having absconded from work from 24th November 2024. 15.The Respondent avers that it reported the Claimant's misconduct of absconding from work to the Nairobi County Labour Office on 13th January 2025, which office thereafter scheduled several sessions that the Claimant never attended. 16.It is the Respondent's case that the Nairobi County Labour Office, having studied the facts, found that the Claimant was in breach of the employment contract and was not entitled to anything beyond one month's salary in lieu of his annual leave. The Respondent further avers that the Claimant was paid all his dues, including salary up to the date of termination, save for the accrued leave days. 17.The Respondent denies that the Claimant was not paid house allowance and avers that his salary was consolidated and inclusive of house allowance in accordance with Section 31(2) of the Employment Act and the applicable wage regulations. 18.It contends that at no point during his employment did the Claimant raise any grievance or objection concerning the structure of his remuneration, nor did he exhaust the internal grievance resolution mechanisms available to him prior to lodging this claim. 19.The Respondent admits that the matter was reported to the Labour Office and reiterates that the Labour Office found the Claimant not entitled to any payment beyond one month's salary in lieu of annual leave. 20.It further avers that the claim for twelve (12) months' compensation is baseless, excessive and unjustified, and contends that the Claimant has not demonstrated how he qualifies for the said compensation under Section 49(1)(c) of the Employment Act. Evidence in Court 21.The Claimant (CW1) adopted his witness statement dated 3rd July 2025 as his evidence in chief and produced his list of documents dated 4th July 2025 as his exhibits. 22.During cross-examination, CW1 testified that he had no written agreement with the Respondent in respect to his employment. 23.He testified that he was the only cashier and he was never absent. Further, he never sought permission absence except on 24th December when he was sick having an ear infection. He testified that he texted his boss but did not produce the text message or the medical treatment documents in court. 24.CW1 testified that he saw the Respondent’s letter to the Ministry of Labour indicating he absconded duty, however, he has not filed any letter to challenge the same. 25.CW1 testified that one Mohamed called him before 6th January 2025 and informed him not the report back to work but he has not produced in court any evidence of that call. 26.He testified that he was paid his December 2024 salary. 27.The Respondent’s witness, Omar Mohamed (RW1), testified that he is the proprietor and director of the Respondent company. 28.He adopted his witness statement dated 7th August 2025 as his evidence in chief and produced the Respondent’s list of documents dated even date as his exhibits. 29.RW1 testified that the Respondent is willing to pay him one year leave. 30.Upon cross-examination, RW1 that the Claimant was its employee as a casual. He was first employed from 2021 to 2022 but he absconded duty and was re-employed on November 2023, however, he was not given any appointment letter. 31.RW1 testified that the Claimant was being housed by the Respondent. However, the Respondent did not pay NSSF or NHIF. 32.He testified that the Claimant was not subjected to any disciplinary process. Claimants’ Submissions 33.The Claimant submitted that he has proved his case to the required standard; as although there was no formal employment letter, the Respondent admitted that the Claimant was their staff. 34.The Claimant argued that the Respondent's witness, DW1, sought to characterize the period from April 2021 to May 2022 as casual employment, but this contention is untenable given that the said period spans over one year, during which the Claimant could not have remained a casual employee. He further submitted that the Respondent's satisfaction with his work is evidenced by the fact that it recalled him to continue working in November 2023. 35.On the mode of communication, the Claimant submitted that the evidence on record establishes that there were no proper channels of communication within the Respondent's establishment, with communication being conducted through phone calls and WhatsApp messages, a position that DW1 did not controvert. 36.He submitted that when he fell ill with ear problems around 20th December 2024, he duly communicated this to DW1, sought days off to seek treatment, and was paid his salary for December 2024. 37.It was further submitted that the Claimant did not rush to the Labour Office but returned to work in the first week of January 2025, only to be told not to continue, and that the first communication from the Labour Office was a letter dated 2nd April 2025 addressed to the Respondent, which the Respondent produced in its own list of documents. 38.On abscondment, the Claimant submitted that the Respondent's claim that he absconded duty is an afterthought. He argued that the Respondent is run single-handedly by DW1 and that nothing would have been easier than the Respondent notifying him in writing that he had absconded duty, however, no such letter exists. 39.It was submitted that the Defence's contention that the Claimant failed to exhaust internal grievance resolution mechanisms is equally unsustainable, as no evidence was tendered to establish that any such internal mechanism existed. 40.He further submitted that the Respondent's report to the Nairobi County Labour Office on 13th January 2025 alleging abscondment is self-serving, and that the response to the demand letter by Maiyo & Mbugua Law Advocates LLP claiming that the Claimant's case was dismissed by the Labour Office is unsupported by any communication from the Labour Office. 41.The Claimant submitted that the Respondent defied the communications from the Labour Office. He argued that DW1's own evidence discloses that he attended the Central Business District Labour Office instead of the Industrial Area Labour Office, and that there is no single letter from the Central Business District Labour Office on record. 42.The Claimant submitted that three letters were issued by the Labour Office dated 2nd April 2025, 9th April 2025, and 15th April 2025 calling upon the Respondent to compensate the Claimant and attend joint reconciliation meetings on 14th April 2025 and 23rd April 2025 respectively, all of which the Respondent ignored. 43.It is the Claimant’s submission that the Respondent's contention that the Industrial Area Labour Office lacked jurisdiction is self-serving. He argued that if the Respondent genuinely held that view, it ought to have raised it at the scheduled meetings rather than simply failing to attend. 44.He further submitted that the allegation that the Respondent left the Claimant's one-month salary in lieu of leave with the Ministry of Labour is entirely unsupported by any official receipt or documentary evidence. 45.On the nature and validity of the employment, it was submitted that the evidence establishes that the Respondent operated with no proper working procedures; there was no employment letter, terms of employment, and internal systems for managing staff. The Claimant placed reliance on Robai Musinzi V Safdar Mohamed Khan [2012] Eklr, where Mbaru J held that verbal contracts are enforceable under the Employment Act and that upon termination of a contract of employment, an employer is expected to compute accrued leave. 46.He submitted that the termination was effected without any written notice to him, whether by letter or otherwise, and that the absence of a termination letter, combined with the Respondent's unlawful labour practices, put the Claimant's livelihood at stake as he could be hired and discharged at will. 47.The Claimant submitted that he is entitled to compensation for leave days and public holidays for the entire period worked, having never proceeded on leave or taken any public holidays. He argued that the Respondent's own admission through DW1, that the final dues left with the Labour Office amounted to only one month's leave pay confirms that the Claimant worked continuously without any leave. He computed his entitlement as spanning four years: April 2021 to May 2022 being the first year; November 2022 to November 2023 being the second year; November 2023 to November 2024 being the third year; and his continued service through December 2024 constituting the fourth year. The Claimant submitted that he is accordingly entitled to four months' salary in lieu of leave. 48.On house allowance, the Claimant submitted that he was not paid house allowance and was instead housed together with other staff in a shared room. He argued that such accommodation cannot be equated to a specific house allowance and contravenes Section 31 of the Employment Act. He urged the Court to award house allowance at the rate of 25% of his monthly salary of Kshs. 30,000 for the entire period worked. 49.The Claimant submitted that his employment was unlawfully terminated without valid reason, without written notice, and without adherence to any fair procedure, and that the Respondent's conduct amounts to unlawful labour practice. He urged the Court to grant the claim as pleaded, including twelve (12) months' salary for unlawful termination, together with costs and interest. Respondent’s Submissions 50.The Respondent submitted on three issues: Was the Claimant’s employment terminated? If so, what was the cause of the termination; Is the Claimant entitled to any of the reliefs he is seeking in the claim; Who is to pay the costs? 51.On the first issue, the Respondent submitted that the Claimant was terminated on account of his unexplained absence from work. It was submitted that the Claimant failed to prove that he sought permission for his absence and failed to adduce any evidence of the alleged sickness, and that given that he was being accommodated by the Respondent, communication would have been easy. 52.The Respondent submitted that the Claimant absconded from work on 24th November 2024 without giving any notice, and that the Respondent, being unable to reach him, was prompted to report the matter to the Labour Office at Nyayo House on 13th January 2025 seeking advice. 53.The Respondent placed reliance on Section 44 of the Employment Act, which considers absenteeism from work a gross misconduct attracting dismissal, and submitted that since the Claimant admitted the absenteeism without permission, his termination was lawful. It cited Chemengich v Radar Limited [2025] KEELRC 638 (KLR), where the court stated that absenteeism without permission amounts to gross misconduct provided that the employer observes the rules of natural justice. The Respondent submitted that this case, while distinguished from the present claim, supports its position that the termination was lawful on the ground of absenteeism. 54.On the second issue, the Respondent submitted that the reliefs sought are premised on the assumption that the Claimant was wrongfully terminated, which allegation he failed to prove, thus, he is not entitled to any of the reliefs sought. It was however conceded that the Claimant is entitled to one month's salary in lieu of his annual leave not taken in the year 2024. 55.On costs, the Respondent submitted that the Claimant absconded his duties, thereby prompting his dismissal, and the Respondent duly reported the absence to the Labour Office at Nyayo House and communicated to the Claimant his sole entitlement of one month's salary in lieu of annual leave. 56.It was submitted that notwithstanding the Respondent's response to the demand letter setting out the Claimant's entitlement and denying any further liability, the Claimant elected to move this Court, therefore, it is logical that he should bear the costs of the suit. 57.I have examined all the evidence and submissions of the parties herein. The claimant contends that he was employed by the respondents for the period stated in the evidence herein and then dismissed unfairly. 58.The respondents admitted employing the claimants and aver that they terminated him fairly after subjecting him to a fair disciplinary process. In court however, the RW1 denied having the disciplinary process. He averred that the claimant absconded duty. 59.From the documents on record, there is no evidence of a written contract given to the claimant. It is however agreed that he served the respondents for over 3 months and the respondents would have been obligated under the law to issue him with a written contract of service as provided for under section 9(1) and (2) of the Employment Act 2007 which states as follows:(1)A contract of service—(a)for a period or a number of working days which amount in the aggregate to the equivalent, of three months or more; or(b)which provides for the performance of any specified work which could not reasonably be expected to be completed within a period or a number of working days amounting in the aggregate to the equivalent of three months, shall be in writing.(2)An employer who is a party to a written contract of service shall be responsible for causing the contract to be drawn up stating particulars of employment and that the contract is consented to by the employee in accordance with subsection (3). 60.The claimant was never issued with the said contract and so any disagreement on the nature of the contract between the respondents and claimant will be resolved in the claimant’s favour as provided for under section 10 (7) of the Employment Act which states as follows:(7)If in any legal proceedings an employer fails to produce a written contract or the written particulars, prescribed in subsection (1) the burden of proving or disproving an alleged term of employment stipulated in the contract shall be on the employer.1.It is therefore the onus of the respondent to prove that the salary of the claimant was all inclusive as averred and that the claimant absconded duty. The respondent has unfortunately not discharged this duty. There is no evidence that even if the claimant had absconded duty he was sought after and subjected to a disciplinary hearing on the ground of absconding. There being no such evidence, I find that the claimant was unfairly terminated and I find for him and given the fact the he was treated unfairly without a hearing, I find 6 months compensation as reasonable which I award him = 6 x 30,000 = 180,000. I also award him:2.1 month salary in lieu of notice = kshs 30,000/-3.Compensation for leave days not taken as admitted by the respondent = kshs 30,000/-.4.Salary for January 2025 not paid = kshs 30,000/-.5.Leave allowance not paid for 2 years (2022/2023 & 2023/2024= 21 days per year = 41 days = 41/30x30,000= Kshs 41,000/-.Total Awarded Kshs 311,000/-. Less statutory deductions 6.The respondents will pay costs of this suit plus interest at court rates with effect from the date of this judgment. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2ND DAY OF JULY, 2026.HELLEN WASILWAJUDGE