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ELRCDismissedMemorandum of Claim filed 23rd February 2024 (number not stated in judgment)· [2025] KEELRC 296 (KLR)

Masawa v Magdak Maternity Hospital Limited (Cause E014 of 2024) [2025] KEELRC 296 (KLR)

Employment and Labour Relations Court
4 February 2025
NMNzioki Wa Makau
624 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, Stephen Maswa, sued Magdak Maternity Hospital for unfair termination of employment. He averred he was employed as Operations Manager on 22nd December 2022 and verbally terminated on 12th June 2023 without notice, and sought reinstatement, damages for unlawful termination, Kshs 135,000/- in unpaid salary, costs and interest. Though served, the respondent neither entered appearance nor filed a response, and the matter proceeded undefended on 31st October 2024, with the claimant testifying and filing written submissions on 22nd January 2025. The claimant submitted that the respondent's non-response amounted to an admission, that his uncontroverted evidence proved the claim on a balance of probabilities, and relied on sections 45 and 49 of the Employment Act, Articles 41 and 47 of the Constitution, and the Court of Appeal decision in Kenya Broadcasting Corporation v Wakio [2019] eKLR in seeking either Kshs 1,000,000/- general damages or 12 months' salary as compensation. The court, however, found the claim fraught with paucity of information: the complaint to the Labour Office appeared to have been lodged outside the 3-month period under section 47 of the Employment Act; the sum of Kshs 135,000/- was unexplained and irreconcilable with the alleged monthly salary; the demand letter of 21st September 2023 was neither stamped received nor accompanied by a certificate of posting; and there was no bank statement or payment slip proving salary. Holding that an undefended claim must still be proved, the court dismissed the claim with no order as to costs.

Key legal issues

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01

Whether an undefended claim is automatically proved

Holding

No - the claimant must still plead and prove the claim on a balance of probabilities

Reasoning

The court noted the claim was fraught with paucity of information: the alleged salary figures were inconsistent (Kshs 135,000/- claimed vs Kshs 30,000/- per month in the demand letter vs Kshs 25,000/- monthly salary), there was no bank statement or payment slip, the demand letter was neither stamped received nor accompanied by a certificate of posting, and no demand for salary preceded the advocates' letter of 26th October 2023. Uncontroverted testimony therefore could not establish the claim.

p. 2
02

Compliance with the complaint procedure under section 47 of the Employment Act

Holding

The claimant's complaint to the Labour Office appeared to have been lodged after the 3-month limitation period and was unsupported by documentation

Reasoning

The court observed that under section 47 of the Employment Act an employee must lodge a complaint with the Labour Office within 3 months of the alleged unfair termination. The claimant, orally terminated in June 2023, apparently complained only in September 2023, and presented no documentation supporting the allegations of non-payment of salary to the Labour Officer.

p. 2

Legal principles established

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  • A claim proceeding undefended must still be proved; uncontroverted evidence does not relieve the claimant of the burden of proof

Court orders

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  1. 1.The claim, though undefended, was found unproved and dismissed
  2. 2.No order as to costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (sections 45, 47 and 49 cited) and Articles 41 and 47 of the Constitution as invoked by the claimant

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, "Masawa v Magdak Maternity Hospital Limited (Cause E014 of 2024) [2025] KEELRC 296 (KLR)", Case Analysis (2025). Memorandum of Claim filed 23rd February 2024 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/296/eng@2025-02-04

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