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ELRCPartially AllowedChief Magistrates' Court at Mavoko MCELRC No. E070 of 2021 (Appeal)· [2025] KEELRC 401 (KLR)

MAS Intimates Kenya (EPZ) Limited v Mwikali (Civil Appeal E006 of 2024) [2025] KEELRC 401 (KLR)

Employment and Labour Relations Court
12 February 2025
3,616 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan employer lost an unfair termination case because it couldn't prove absenteeism with properly certified electronic records, but the employee's compensation was slashed from twelve months' salary to one.

What this practically means

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Executive summary

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Mas Intimates Kenya (EPZ) Limited appealed against a judgment of the Chief Magistrates' Court at Mavoko (Derrick K. Kuto, SPM, 31st January 2024) which declared the claimant's termination unfair, awarded notice pay of Kshs. 16,905, twelve months' salary compensation of Kshs. 202,860, a certificate of service, costs and interest. The employer contended the claimant absconded duty from 12th April 2021 and had vacated post voluntarily. J.W. Keli, J, sitting as a first appellate court and applying Selle v Associated Motor Boat Co., re-evaluated the evidence. The court found the employer had not proved the reason for termination: the clock-in extracts were unaccompanied by the certificate required under section 65(8) of the Evidence Act and were contradicted by the claimant's testimony that she signed attendance sheets, and there was no evidence of service of the letters of 15th and 21st April 2021. There was also no compliance with the hearing and notification requirements of section 41 of the Employment Act, so both substantive and procedural fairness failed. On remedies, the court upheld notice pay but held the trial court erred in awarding maximum compensation without applying the section 49(4) factors, noting the fixed-term contract had about two months to run to 24th June 2021 and relying on Transparency International - Kenya v Omondi. The twelve months' compensation was set aside and substituted with one month's salary (Kshs. 16,905). The appeal partially succeeded; judgment was substituted accordingly, with costs to the claimant in the suit and to the respondent in the appeal.

Key legal issues

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01

Whether the reasons for termination were proved

Holding

The reasons for termination were not proved; the clock-in extracts lacked the statutory certificate and there was no evidence of postage of the letters

Reasoning

The employer relied on clock-in extracts to prove absence, but no certificate of electronic evidence under section 65(8) of the Evidence Act was produced, disqualifying them. The claimant said she signed attendance sheets. There was also no evidence the letters of 15th and 21st April 2021 were served. The employer therefore failed to discharge its burden under section 43 of the Employment Act.

p. 6
02

Whether procedural fairness was complied with

Holding

No procedural fairness under section 41 of the Employment Act; the appellate court upheld the trial court's finding

Reasoning

Section 41 requires an employer to explain the reasons and hear the employee's representations before termination on grounds of misconduct. The only notice produced was the letter of 15th April 2021, and there was no evidence it was served on the respondent. The appellate court found no basis to disturb the trial court's finding of no procedural fairness.

p. 6
03

Whether the maximum compensation of twelve months' salary was justified

Holding

Trial court erred in awarding maximum compensation without applying section 49(4) factors; reduced to one month's salary

Reasoning

The respondent's fixed-term contract was to expire on 24th June 2021, leaving about two months. The trial court did not state the section 49(4) factors it applied. Awarding twelve months' salary far beyond the remaining contract period was unreasonable, so the appellate court substituted one month's salary compensation.

p. 8

Legal principles established

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  • For a termination to pass the fairness test there must be both substantive justification and procedural fairness
  • A computer print-out is inadmissible without a certificate of electronic evidence under section 65(8) of the Evidence Act
  • A fixed-term contract terminates automatically when the termination date arrives, with no expectation of renewal

Court orders

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  1. 1.A declaration that the termination of employment of the claimant was unlawful and unfair
  2. 2.Notice pay of Kshs. 16,905
  3. 3.Compensation award equivalent of 1 month's gross salary Kshs. 16,905
  4. 4.Certificate of service to be issued under section 51 of the Employment Act
  5. 5.Costs to the claimant and interest at court rates from the date of judgment
  6. 6.The Respondent is awarded costs in the appeal

Authorities

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Legislation

  • Employment Act, 2007section 45(2)
  • Employment Act, 2007section 43
  • Employment Act, 2007section 41
  • Employment Act, 2007section 49(1)
  • Employment Act, 2007section 49(4)
  • Employment Act, 2007section 50
  • Employment Act, 2007section 51
  • Evidence Actsection 65(8)

Cases cited (3)

  • Selle v Associated Motor Boat Co.
    [1968] EA 123
  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Transparency International - Kenya v Omondi
    [2023] KECA 174 (KLR)
On appeal from
Chief Magistrates' Court at Mavoko
MCELRC No. E070 of 2021
Jurisdiction invoked
First appellate jurisdiction over appeals from the magistrates' court in employment and labour relations matters

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, "MAS Intimates Kenya (EPZ) Limited v Mwikali (Civil Appeal E006 of 2024) [2025] KEELRC 401 (KLR)", Case Analysis (2025). Chief Magistrates' Court at Mavoko MCELRC No. E070 of 2021 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/401/eng@2025-02-12

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