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ELRCPartially AllowedNot stated in judgment

Kenya Union of Commercial Food and Allied Workers v Rene Superclean Services Ltd; Mulogoli (Grievant) (Cause E030 of 2024) [2025] KEELRC 86 (KLR)

Employment and Labour Relations Court
22 January 2025
NMNzioki Wa Makau
968 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that firing a sick employee without a hearing is unfair, awarding her pay and 10 months' compensation.

What this practically means

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Executive summary

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The Claimant sued on behalf of the Grievant, Susan Mulogoli, alleging unfair termination and seeking reinstatement or, alternatively, Kshs. 537,712.88 in unpaid dues and damages. The Respondent denied employing the Grievant and demanded strict proof. At the hearing on 12th November 2024 the Grievant testified that she worked as a cleaner, was hospitalised for five days, and on attempting to resume work was issued a suspension letter, her position having been filled. The Respondent called no witnesses. Relying on Kabucho v Kamuthi Housing Co-operative Society Ltd, the Claimant argued an untested defence is ineffective, and that the Respondent breached sections 30(1) and 34(1) & (2) of the Employment Act. The court held the Grievant was plainly an employee - she could not otherwise have been suspended or required to report to HR - and that treating illness-related absence as absence without cause, without a hearing, was inhumane and unjust, rendering the termination unfair and unlawful. However, the Claimant's computations were erroneous. The court awarded notice pay of Kshs. 14,025.40, Kshs. 10,249.33 for 19 days worked in June 2023, leave dues of Kshs. 14,025.40 (limited to one year under section 90), and 10 months' compensation of Kshs. 140,254 under section 49, with costs and interest as specified. The underpayment claim from 2016 was disallowed for lack of proof and delay. Judgment was entered accordingly on 22nd January 2025 at Kisumu.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Grievant was an employee of the Respondent
  2. 2.Whether the termination/suspension of the Grievant was unfair and unlawful
  3. 3.What sums, if any, are due to the Grievant

Key legal issues

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01

Employment relationship

Holding

The Grievant was an employee of the Respondent; denials of employment lacked merit

Reasoning

The court reasoned that the suspension letter and the requirement to report to human resources were inconsistent with the Respondent's denial of employment. Only an employee could be suspended and required to report to HR. The denials were therefore a feeble attempt to defeat the claim.

p. 2
02

Fairness of termination

Holding

Termination was unfair and unlawful

Reasoning

The Grievant's absence was due to illness of which the Respondent was aware, yet she was suspended without an opportunity to explain. The Respondent lacked a policy on illness-related absence, and failed to respond to the Labour Office. Terminating her in those circumstances was inhumane and unjust.

p. 2
03

Quantum of reliefs

Holding

Entitled to one month notice, June 2023 days worked, one year's leave dues and 10 months' compensation under section 49

Reasoning

The court recalculated the dues: monthly salary of Kshs. 14,025.40 yielded notice pay, 19 days worked in June 2023, and leave dues limited to one year by section 90 of the Employment Act. Compensation was fixed at 10 months' salary under section 49. The underpayment claim failed for lack of proof.

p. 2

Legal principles established

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  • An unchallenged claim, where the respondent calls no evidence, may be found proved
  • Terminating an employee absent on account of illness, without an opportunity to explain, is unfair and unlawful

Court orders

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  1. 1.Judgment for the Grievant of Kshs. 14,025.40 as notice
  2. 2.Kshs. 10,249.33 for days worked in June 2023
  3. 3.Leave dues of Kshs. 14,025.40
  4. 4.Compensation for wrongful termination equivalent to 10 months salary, Kshs. 140,254/-
  5. 5.Costs of the suit
  6. 6.Interest at court rates on the sums in (a), (b) and (c) from date of filing suit till payment in full
  7. 7.Interest at court rates on the sum in (d) from date of judgment till payment in full

The bench

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One judgment of the whole court — no separate or dissenting opinions.

NM
majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination claims (Employment Act)

Relief refused

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Reinstatement

Court awarded monetary reliefs instead

Claim for Kshs. 537,712.88 in unpaid dues and damages as computed by the Claimant

Claimant's computation was erroneous; court substituted its own lower computation

p. 2

Claim for underpayment from 2016

Not proved and unreasonably delayed

Costs

Costs of the suit awarded to the Claimant/Grievant

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The denials of employment are therefore found to have no merit and were a feeble attempt to deny the claim.
p. 2employment relationship
The determination by the Respondent that the Grievant was absent without cause was both inhumane and unjust.
p. 2unfair termination
The Claimant is correct in its surmise that the termination of the Grievant’s employ was unfair and unlawful.
p. 2unfair termination
She is also entitled to 10 months compensation in terms of section 49 of the Employment Act.
p. 2remedies
In the final analysis I enter judgment for the Grievant as follows:
p. 3final orders

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Union of Commercial Food and Allied Workers v Rene Superclean Services Ltd; Mulogoli (Grievant) (Cause E030 of 2024) [2025] KEELRC 86 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/86/eng@2025-01-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.