Wanjala v Orijo Enterprises t/a Amazon Hotel (Cause E026 of 2024) [2025] KEELRC 1752 (KLR)
The bottom line
#A Kakamega court ruled a Kenyan employee's dismissal unfair, awarding him Kshs104,280 because his employer could not prove why or how he was terminated.
What this practically means
#Executive summary
#Key legal issues
#Nature of the claimant's employment - casual, term contract or permanent
The claimant was initially a permanent/regular employee; in 2024 no contract was produced, so the presumption was that he had again become a regular employee entitled to the protections of Section 35(1)(c)
The court found the claimant worked without a written contract from about 2014/2015 to 2017, a period exceeding three months, making the relationship permanent and pensionable rather than casual. Though short-term contracts were introduced in 2018, no 2024 contract was produced despite the respondent being the custodian of employment records. The court therefore presumed the relationship had reverted to regular employment, attracting the notice protections of Section 35(1)(c).
Whether the termination was unfair and unlawful
The termination was wrongful, unfair and unlawful because no valid reason was established and no fair procedure under Section 41 was followed
The respondent pleaded summary dismissal for gross misconduct but RW1 testified that the claimant was not terminated but his contract lapsed. Parties are bound by their pleadings. No warning, show-cause letter, notice or disciplinary hearing was availed. No contract for 2024 was produced. The respondent therefore failed to justify the reason for dismissal or demonstrate procedural fairness as required under Sections 41, 43, 44 and 45 of the Act and Articles 47 and 50 of the Constitution.
Entitlement to pay in lieu of notice
The claimant was entitled to one month's gross salary in lieu of notice, computed at Kshs26,070/= as shown in bank statements
Having found the claimant to be a regular employee, Section 35(1)(c) required 28 days' prior written notice before termination. Although the claimant pleaded a gross salary of Kshs28,000/=, his bank statements showed earnings of Kshs26,070/=, which the respondent did not dispute or rebut with contrary evidence. The court accordingly awarded pay in lieu of notice at the proven figure.
Entitlement to compensation under Section 49
Compensation of three months' gross salary (Kshs78,210/=) was fair, not the maximum 12 months claimed
The claimant sought maximum compensation of 12 months' gross salary. The court noted Section 49(4) factors, observing that the respondent provided no evidence of misconduct or due process. However, compensation is not punitive but compensatory for loss of earnings. In the whole circumstances three months' gross salary, calculated on the last salary of Kshs26,070/=, was considered fair.
Claim for unpaid leave
The claim failed for want of specific pleading and proof, as a global figure was used despite varying salaries
A leave claim is a continuing injury claimable within 12 months of dismissal and the claim was within time. However, the claimant did not plead the specific salary earned each year, which is the basis for computing leave pay. His own contracts showed varying salaries from Kshs18,000/= to Kshs25,000/=, and no evidence existed for 2020-2021. The global figure of Kshs132,957/= had no demonstrable basis and failed.
Legal principles established
#- The employer is the custodian of employment records and failure to avail an alleged expired contract means no evidence of termination by effluxion of time
- Procedural fairness is mandatory even where an employer contemplates summary dismissal for gross misconduct
- A casual employee engaged continuously beyond the statutory period converts to a regular employee protected by Section 35(1)(c) of the Employment Act
Court orders
#- 1.A declaration that the dismissal of the claimant by the respondent was wrongful, unfair, and unlawful
- 2.Award to the claimant of Kshs104,280/= with interest from the date of judgment till payment in full, subject to statutory deductions, made up of compensation for wrongful and unlawful dismissal of Kshs78,210/= and one month's gross salary in lieu of notice of Kshs26,070/=
- 3.Certificate of service to be issued by the respondent in the name of the claimant and delivered to his counsel on record within 30 days of the judgment
- 4.Costs of the cause to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanjala v Orijo Enterprises t/a Amazon Hotel (Cause E026 of 2024) [2025] KEELRC 1752 (KLR)", Case Analysis (2025). ELRC Cause, Kakamega (memorandum of claim dated 23rd July, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1752/eng@2025-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.