https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/158

Wekesa v Kilimanjaro Biscuits Ltd & another (Cause E581 of 2025) [2026] KEMC 158 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEMC 158 (KLR) Republic of Kenya In the Mombasa Law Courts Cause E581 of 2025 EM Mwamuye, SRM June 25, 2026 Between Nicholas Sifuna Wekesa Claimant and Kilimanjaro Biscuits Limited 1st Respondent Alvamon Limited 2nd Respondent Judgment Introduction 1.The Claimant commenced these proceedings through a Memorandum of Claim dated 2nd September 2025 seeking, inter alia, a declaration that his termination was unfair and unlawful, payment in lieu of notice, compensation for unfair termination, underpayments, house allowance arrears, costs and interest. 2.The 1st Respondent filed a Response denying that it was the Claimant's employer and contended that the Claimant was at all material times an employee of the 2nd Respondent under a manpower outsourcing arrangement. The 2nd Respondent similarly filed a Response disputing the Claimant's claim. 3.The hearing proceeded on 13th April 2026. The Claimant testified on oath and adopted his witness statement and documents. Upon conclusion of the Claimant's evidence, both Respondents elected to proceed pursuant to Rule 59 of the Employment and Labour Relations Court (Procedure) Rules, 2024 and relied on their filed witness statements and documentary evidence without calling oral witnesses. The Claimant consented to that mode of proceeding. Parties thereafter filed written submissions which I have carefully considered alongside the pleadings, evidence and authorities cited. The Claimant's Case 4.The Claimant testified that he was verbally employed on 8th January 2019 as a Bakery Assistant and worked continuously until 5th May 2025 when he was verbally informed that his services were no longer required. 5.He testified that he earned a monthly wage of Kshs.15,011/= and worked at the premises of the 1st Respondent. He stated that he was never issued with a written contract, was not subjected to any disciplinary hearing and was not given any reason for termination. 6.He further contended that he was paid below the prescribed minimum wage and was not paid house allowance. He produced a Certificate of Appreciation issued by the 1st Respondent in June 2022 in support of his contention that he worked for the 1st Respondent. The 1st Respondent's Case 7.The 1st Respondent's position is that no employment relationship ever existed between it and the Claimant. 8.Through its pleadings, witness statement and submissions, it maintained that the Claimant was at all times an employee of the 2nd Respondent, Alvamon Limited, which supplied manpower to the 1st Respondent pursuant to a manpower services agreement. 9.The 1st Respondent relied on the Claimant's payslip showing Alvamon Limited as employer, NSSF records showing Alvamon Limited as employer and the Manpower Services Supply Agreement which expressly provided that supplied manpower remained employees of Alvamon Limited and not Kilimanjaro Biscuits Limited. The 1st Respondent therefore urged the Court to dismiss the claim against it. The 2nd Respondent's Case 10.The 2nd Respondent admitted engaging the Claimant but contended that it employed him under renewable fixed-term contracts. It maintained that the Claimant was paid lawfully and denied unfair termination. 11.The 2nd Respondent further asserted that the Claimant's last contract was due to expire on 30th June 2025 and disputed liability for the reliefs sought. Issues for Determination 12.Having considered the pleadings, evidence and submissions, the following issues arise for determination:i.Whether the Claimant was an employee of the 1st Respondent, the 2nd Respondent or both.ii.Whether the termination of the Claimant's employment was unfair and unlawful.iii.Whether the Claimant is entitled to the remedies sought.iv.Who should bear costs. Whether the Claimant Was an Employee of the 1st Respondent, the 2nd Respondent or Both 13.The Claimant's position is that he was verbally employed by the 1st Respondent in January 2019 and continued working at its premises throughout. 14.The Court notes that the evidence establishes that the Claimant worked at the premises of the 1st Respondent. The Certificate of Appreciation issued in June 2022 by the 1st Respondent also demonstrates that the Claimant was recognized by the 1st Respondent as part of the workforce operating at its facility. 15.However, the Court must go beyond the physical location of work and determine who exercised the rights and obligations of an employer. 16.The Claimant produced a payslip issued by Alvamon Limited. His NSSF records equally identify Alvamon Limited as the employer. The Manpower Services Supply Agreement between the Respondents expressly provides that supplied manpower remained employees of Alvamon Limited and not Kilimanjaro Biscuits Limited. 17.Notwithstanding the foregoing, the evidence on record reveals that the Claimant had been working at the 1st Respondent's premises long before the commencement of the 2025 outsourcing agreement. The Claimant testified that he commenced employment in January 2019. Significantly, the 2nd Respondent's own position as summarized in the submissions was that it engaged the Claimant on 8th January 2024. That position tends to support the Claimant's assertion that he was already working at the premises before the 2nd Respondent formally assumed responsibility for labour management. 18.The Court is persuaded that the 1st Respondent cannot completely distance itself from the employment relationship merely because labour administration was outsourced. The Claimant rendered services exclusively for the benefit of the 1st Respondent, worked at its premises and was acknowledged by it through the Certificate of Appreciation. 19.The Court therefore finds that while the 2nd Respondent was the immediate employer responsible for payroll and labour administration, the 1st Respondent remained the principal beneficiary of the Claimant's labour and cannot wholly escape responsibility arising from the employment relationship. 20.Accordingly, I find that the 2nd Respondent was the immediate employer and the 1st Respondent bears joint responsibility arising from the employment relationship. Whether the Termination Was Unfair and Unlawful 21.The Claimant testified that on 5th May 2025 he was verbally informed that his services were no longer required. Neither Respondent produced a termination letter. Neither Respondent produced a notice to show cause. Neither Respondent produced disciplinary proceedings. Neither Respondent produced minutes of a hearing. Neither Respondent produced evidence demonstrating compliance with Section 41 of the Employment Act. 22.Sections 43 and 45 of the Employment Act require an employer to prove valid and fair reasons for termination and demonstrate that fair procedure was followed. 23.The Respondents produced no evidence whatsoever explaining why the Claimant's employment came to an end on 5th May 2025. The Court therefore finds that the Respondents failed to discharge the statutory burden imposed by Sections 43 and 45 of the Employment Act. 24.The Court consequently finds that the termination of the Claimant's employment on 5th May 2025 was substantively unjustified and procedurally unfair. Whether the Claimant Is Entitled to the Reliefs Sought 25.One Month Salary In lieu of Notice- The Claimant was not given notice. He is therefore entitled to one month's salary in lieu of notice. Award: Kshs.22,618.50/=. 26.Underpayment Claim- The Claimant pleaded underpayment for the period between May 2023 and April 2025. Although the Claimant relied on wage orders and computations, no detailed evidence was tendered demonstrating the exact category applicable to him throughout the entire period claimed and how the alleged underpayment figures were arrived at. The Court is not satisfied that the claim for underpayments was strictly proved. This claim declined. 27.House Allowance- The pay slip produced by the Claimant reflects payment of house allowance. The claim for house allowance arrears is therefore not established. This claim dismissed. 28.Compensation for Unfair Termination- In assessing compensation, the Court has considered: The Claimant served for approximately six years. No misconduct was proved. No disciplinary process was undertaken. No reason was provided for termination. The Claimant had a legitimate expectation of continued employment. The Court finds an award equivalent to three months' gross salary appropriate. Kshs. 22,618.50 × 5 = Kshs. 113,092.50/=. 29.Certificate of Service- The Claimant is entitled to a Certificate of Service pursuant to Section 51 of the Employment Act. Disposition 30.Judgment is entered for the Claimant against the Respondents jointly and severally as follows:a.One month's salary in lieu of notice 22,618.50b.Compensation equivalent to 8 months' salary 113,092.50Total 135,711/=c.The claims for underpayments and house allowance arrears are dismissed. Orders 31.A declaration is hereby issued that the termination of the Claimant's employment on 5th May 2025 was unfair and unlawful. The Claimant is awarded Kshs.135,711/=. The award shall attract interest at court rates from the date of judgment until payment in full. The Respondents shall issue the Claimant with a Certificate of Service within thirty (30) days. The Claimant shall have the 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