Mungoma v Curries Bar & Restaurant (Cause 1784 of 2016) [2025] KEELRC 1400 (KLR)
The bottom line
#A Kenyan court refused a cashier's unfair dismissal claim for lack of proof, but awarded him Kshs 108,505 in unpaid wages and service pay.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was unfair
The Claimant failed to prove unfair termination; he did not produce the dismissal letter, did not identify who dismissed him, and his own letter of 19 April 2015 offered to relinquish employment while taking responsibility for lost monies
The Claimant alleged dismissal on 22 April 2014 but produced no dismissal letter, did not name the person who dismissed him, and his last gate pass was dated 11 April 2015. He had earlier written a letter taking responsibility for lost cash and offering to relinquish employment. Under the Employment Act the burden of proving unfair termination lay on him, and he failed to discharge it.
Entitlement to service pay
Allowed - no evidence of pension or NSSF contributions excluding service pay under section 35(5) & (6)
Service pay is excluded only where the employee is a member of a pension scheme or contributes to the NSSF. The Respondent produced no such evidence, so the claimed Kshs 8,654/- service pay was allowed as a contractual entitlement arising under section 35 of the Employment Act.
April 2015 salary
Allowed - the Respondent failed to produce pay records showing payment for days worked
The Respondent bore the evidential ability to produce wage records; failing to produce the Claimant's pay records for April 2015, the claim for Kshs 15,000/- salary for days worked succeeded.
Underpayments
Allowed - the Claimant's wage of Kshs 15,000/- was below the statutory minimum wage of Kshs 22,070/- for a cashier in Nairobi
Relying on the Regulation of Wages Amendment Order, 2013, the minimum monthly wage for a cashier in Nairobi was Kshs 22,070/- while the Claimant earned Kshs 15,000/-. The shortfall of Kshs 84,851/- was therefore payable.
Leave pay and overtime
Declined for want of evidential or legal foundation
The Claimant did not lay any evidential or legal basis for these heads, so the court declined them. A claimant must do more than assert these entitlements.
Legal principles established
#- Under the Employment Act, 2007, the employee bears the burden of proving that an unfair termination of employment occurred
- Service pay is payable where there is no evidence the employee was a member of a pension fund or contributing to the NSSF (section 35(5) & (6), Employment Act, 2007)
- A Certificate of Service is a statutory entitlement on separation
- A cashier earning below the prescribed minimum wage under the Regulation of Wages Order is deemed underpaid
Court orders
#- 1.Declaration that the Claimant did not prove that an unfair termination of employment occurred
- 2.Declaration that the Respondent was in breach of contract
- 3.Award to the Claimant of service pay Kshs 8,654/-
- 4.Award to the Claimant of April 2015 salary Kshs 15,000/-
- 5.Award to the Claimant of underpayments Kshs 84,851/-, totalling Kshs 108,505/-
- 6.Direction that the Respondent issue a Certificate of Service to the Claimant
- 7.Denial of costs to the Claimant for filing submissions outside the agreed timelines
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Cause for unfair termination and unpaid terminal dues)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mungoma v Curries Bar & Restaurant (Cause 1784 of 2016) [2025] KEELRC 1400 (KLR)", Case Analysis (2025). Not stated in judgment (Cause filed 7 September 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1400/eng@2025-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.