MAS Intimates Kenya (EPZ) Limited v Mwikali (Civil Appeal E006 of 2024) [2025] KEELRC 401 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the reasons for termination were proved
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
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.
Whether procedural fairness was complied with
No procedural fairness under section 41 of the Employment Act; the appellate court upheld the trial court's finding
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.
Whether the maximum compensation of twelve months' salary was justified
Trial court erred in awarding maximum compensation without applying section 49(4) factors; reduced to one month's salary
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.
Legal principles established
#- 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
#- 1.A declaration that the termination of employment of the claimant was unlawful and unfair
- 2.Notice pay of Kshs. 16,905
- 3.Compensation award equivalent of 1 month's gross salary Kshs. 16,905
- 4.Certificate of service to be issued under section 51 of the Employment Act
- 5.Costs to the claimant and interest at court rates from the date of judgment
- 6.The Respondent is awarded costs in the appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.