Alex Musembi Mulili v Jacob Nzioki Kwesi & 3 others [2016] KEELRC 1510 (KLR)

The respondent's letter to Select Management Services confirmed the claimant was its employee as a Medical Laboratory Technician since 1st July 2008 earning Kshs 18,000 monthly. That documentary evidence directly contradicted the oral testimony of RW1 and RW2. Though the claimant may initially have been attached as a student on allowance, he obtained registration on 13th May 2009 and acquired legal capacity to be employed. The claimant was found credible; the respondent's witnesses were not.

The claimant was dismissed without notice, notice to show cause, disciplinary hearing or any reason assigned. He had served three years continuously with no adverse employment record, lost career prospects at an early age, received no terminal benefits or certificate of service, and was denied letters of employment and payslips. The court treated this as malicious treatment and awarded eight months' salary as compensation for dismissal contrary to section 45 of the Employment Act 2007.

The claimant proved he was summarily dismissed without notice or payment in lieu, so one month's salary in lieu of notice was awarded. In the absence of contrary documentary evidence, the court found the respondent deducted but failed to remit NHIF and NSSF. The Employment Act guarantees every permanent employee at least 21 days leave per completed year, yielding 63 days over three years. However, the house allowance claim failed because there was no written contract and the salary exceeded the general minimum wage.