Mwende v Interstrat Limited t/a Big Square (Employment and Labour Relations Cause 616 of 2018) [2023] KEELRC 1153 (KLR)
The bottom line
#A Kenyan restaurant was ordered to pay a cashier over Kshs 500,000 after unfairly firing her without a hearing and paying below legal minimum wages.
What this practically means
#Executive summary
#Key legal issues
#Effect of the Respondent's failure to call evidence
The Respondent's statement of response had no evidential value; its legal burdens under sections 43 and 45(2) were undischarged, rendering the summary dismissal unfair by operation of law
The Respondent entered appearance and filed a response but closed its case without calling a witness. The court held the response remains a mere statement without evidential value. Submissions by counsel cannot substitute for evidence. The employer's statutory legal burdens under sections 43 and 45(2) of the Employment Act must be discharged by evidence, and failure to do so meant the dismissal was deemed unfair by operation of law.
Procedural fairness of the termination
The summary dismissal was procedurally unfair
The uncontroverted evidence showed the Claimant was not given an adequate chance to defend herself against accusations and no right of accompaniment under section 41. The section 41 procedure is mandatory; notification, hearing and consideration components were absent. The duty to prove procedural fairness lies on the employer, who adduced no evidence.
Substantive fairness of the termination
The dismissal was substantively unfair; the alleged receipt endorsement did not justify summary dismissal
Section 43 requires the employer to prove the reasons for termination and section 45(2) that they are valid and fair. The Claimant's explanation of the endorsed receipt was reasonable and required but received no controversion. Without evidence demonstrating a valid and fair reason, the court concluded the dismissal was substantively unfair and declined to find justification under section 44.
Maternity leave payment
Awarded Kshs 74,158
The Respondent expressly admitted in pleadings that the Claimant took maternity leave but asserted she was remunerated. Counsel's submissions could not contradict an express admission in pleadings. The Respondent bore the burden to prove payment by payroll or cheque evidence and adduced none, so the full amount claimed was awarded.
Underpayment under the Regulation of Wages (General) Order
Awarded Kshs 301,782 under section 48 of the Labour Institutions Act
The Claimant, a cashier, was subject to the Wage Orders. Section 48 of the Labour Institutions Act inserts statutory minimum terms into contracts paying less. The court held minimum wages cannot be contracted out and the post-2007 regime is a countervailing force to inequality of bargaining power. It computed underpayments for June 2015 to December 2017 at Kshs 301,782.
Compensation for unfair termination
Awarded 6 months' gross salary (Kshs 99,000) rather than the 12 months sought
The discretion under section 49(1)(c) is exercised on the circumstances of each case. Considering the breach of statutory procedure, fair hearing and natural justice, the Respondent's non-compliance on maternity and annual leave payment, and the length of service, the court concluded the Claimant was entitled to compensation capped at six months' gross salary.
Legal principles established
#- A respondent who files a response but calls no evidence leaves the response without evidential value, though the claimant's burden of proof remains
- Submissions are not a substitute for evidence
- Under section 47(5) of the Employment Act the employee must first make a prima facie case of unfair termination, whereafter the burden shifts to the employer to justify the termination
- Minimum wages prescribed by statute cannot be contracted out; the court applies the law over contractual terms inconsistent with a wages order
Court orders
#- 1.Declaration that the Claimant's termination was both procedurally and substantively unlawful and unfair
- 2.Annual leave payment of Kshs 16,500
- 3.Compensation at 6 months' gross salary of Kshs 99,000
- 4.One month salary in lieu of notice of Kshs 16,500
- 5.Payment for 10 days worked in December 2017 of Kshs 5,323
- 6.Compensation for unpaid maternity leave of Kshs 74,158
- 7.Leave pay for the annual leave for 2016 of Kshs 16,500
- 8.Interest on sums awarded at court rates from date of judgment until full payment
- 9.Underpaid salary of Kshs 301,782
- 10.Costs of the suit to the Claimant
- 11.Respondent to issue certificate of service to the Claimant within 30 days
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment Act; Labour Institutions Act)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ithelu v Proto Energy Limited (Cause E529 of 2020) [2025] KEELRC 2744 (KLR)[2025] KEELRC 2744 (KLR)8 Oct 2025
- Omundi v Judicial Service Commission & another (Cause E046 of 2023) [2025] KEELRC 1886 (KLR)[2025] KEELRC 1886 (KLR)27 Jun 2025
- Maina v Judicial Service Commission & 3 others (Employment and Labour Relations Petition E009 of 2023) [2025] KEELRC 686 (KLR)[2025] KEELRC 686 (KLR)6 Mar 2025
Cite this brief
#Cite this brief
Caselaw, "Mwende v Interstrat Limited t/a Big Square (Employment and Labour Relations Cause 616 of 2018) [2023] KEELRC 1153 (KLR)", Case Analysis (2023). Statement of Claim dated April 26, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1153/eng@2023-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.