Wangari v Simba Fresh Produce Limited (Employment and Labour Relations Cause E036 of 2023) [2024] KEELRC 2074 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the claimant's employment remained a fixed term contract or had become a contract of indefinite period
The parties mutually terminated the initial fixed term contract and entered a new indefinite-term engagement in January 2022 as Chief Operations Officer, per clause 2.4 providing for fresh engagement on a permanent basis
The claimant was competitively appointed Chief Operations Officer in January 2022, his payslips, clearance form and terminal dues computation reflected the new position, and the respondent called no witness to rebut this evidence. Clause 2.4 of the initial contract provided that upon expiry the employee would be engaged afresh on permanent contract basis, making the new appointment indefinite.
Whether the termination was unfair and unlawful
The termination was for no valid reason and without fair procedure, hence unfair and unlawful under section 45 of the Employment Act
The claimant was dismissed verbally via WhatsApp without notice, valid reasons or a hearing. The respondent adduced no evidence, having closed its case without calling any witness. Following sections 41, 43, 45 and 47(5) and precedent, the employer must prove valid reason and fair procedure, which it failed to do.
Whether the claimant's monthly salary at exit was Kshs. 25,000 or Kshs. 150,000
The claimant's monthly salary at the date of exit was Kshs. 150,000, based on payslips and the HR Manager's terminal dues computation which the respondent did not discredit
Under section 10(7), the employer bore the burden of producing the written contract for the Chief Operations Officer role, having returned the erroneous appointment letter to the employer. The respondent adduced no evidence, and the payslips and dues computation emanating from the respondent indicated a salary of Kshs. 150,000.
Whether the claimant was entitled to the unpaid June 2023 salary and leave dues
Yes; the respondent's HR computation acknowledged the June salary and 30.84 leave days as payable, and no evidence showed the June salary was ever paid
The respondent's General Manager declined to approve the HR Manager's computation only on the ground that salary in lieu of notice was not payable; the respondent did not prove payment of June salary or discredit the computation, which acknowledged the leave days and salary as due.
Legal principles established
#- Where an employer fails to produce a written contract or prescribed particulars in legal proceedings, the burden of proving or disproving an alleged term of employment falls on the employer
- Unfair termination of employment has two ingredients, namely a valid reason and fair procedure
- Under a contract clause providing for fresh engagement on a permanent basis upon expiry of a fixed term, fresh appointment after the fixed term is for an indefinite period
Court orders
#- 1.Notice pay of Kshs. 150,000.00
- 2.Unpaid salary for June and 3 days of July 2023 of Kshs. 165,000.00
- 3.Unpaid leave (150,000/30 x 30.84) of Kshs. 154,200.00
- 4.Compensation for unfair termination (150,000 x 2) of Kshs. 300,000.00; total award Kshs. 769,200.00
- 5.Issuance of a certificate of service
- 6.Costs of the suit to the claimant
- 7.Interest at court rate from the date of the judgment
- 8.The award of damages is subject to statutory deductions
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (ELRC Procedure Rules referenced); specific constitutional/statutory basis for jurisdiction not stated
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mitsumi v Q-Sourcing Limited & another (Cause E1004 of 2024) [2025] KEELRC 2400 (KLR)[2025] KEELRC 2400 (KLR)29 Aug 2025
Cite this brief
#Cite this brief
Caselaw, "Wangari v Simba Fresh Produce Limited (Employment and Labour Relations Cause E036 of 2023) [2024] KEELRC 2074 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2074/eng@2024-08-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.