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ELRCPartially AllowedELRC Cause, Kakamega (memorandum of claim dated 23rd July, 2024)· [2025] KEELRC 1752 (KLR)

Wanjala v Orijo Enterprises t/a Amazon Hotel (Cause E026 of 2024) [2025] KEELRC 1752 (KLR)

Employment and Labour Relations Court
13 June 2025
4,510 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, employed by the respondent from about 2014/2015 and rising from steward to manager, was sent on compulsory leave on 6th May 2024 and later informed his contract had expired in April 2024. He claimed unfair termination, pay in lieu of notice, maximum compensation of 12 months' salary, unpaid leave for nine years, and a certificate of service. The respondent contended he was on three-month term contracts which lapsed by effluxion of time, and alleged gross misconduct and fraud. The court framed three issues: nature and length of employment; fairness of termination; and appropriate orders. On the evidence, no 2024 contract was produced although the respondent was the custodian of employment records; the court held the claimant had reverted to regular/permanent employment protected by Section 35(1)(c) of the Employment Act. The respondent's pleadings and testimony were contradictory - pleading summary dismissal for gross misconduct while RW1 testified the contract merely lapsed. No show-cause letter, notice or disciplinary hearing was availed. The court held the termination wrongful, unfair and unlawful for want of valid reason and fair procedure under Sections 41, 43, 44 and 45. The claimant was awarded one month's salary in lieu of notice (Kshs26,070/=) and three months' salary as compensation (Kshs78,210/=), totalling Kshs104,280/= with interest, subject to statutory deductions. The unpaid leave claim failed as it was pleaded as a global figure without particulars of the varying salaries earned. A certificate of service was ordered to be issued within 30 days. Costs of the cause were awarded to the claimant.

Key legal issues

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01

Nature of the claimant's employment - casual, term contract or permanent

Holding

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)

Reasoning

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).

p. 6
02

Whether the termination was unfair and unlawful

Holding

The termination was wrongful, unfair and unlawful because no valid reason was established and no fair procedure under Section 41 was followed

Reasoning

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.

p. 7
03

Entitlement to pay in lieu of notice

Holding

The claimant was entitled to one month's gross salary in lieu of notice, computed at Kshs26,070/= as shown in bank statements

Reasoning

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.

p. 8
04

Entitlement to compensation under Section 49

Holding

Compensation of three months' gross salary (Kshs78,210/=) was fair, not the maximum 12 months claimed

Reasoning

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.

p. 8
05

Claim for unpaid leave

Holding

The claim failed for want of specific pleading and proof, as a global figure was used despite varying salaries

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.A declaration that the dismissal of the claimant by the respondent was wrongful, unfair, and unlawful
  2. 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. 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. 4.Costs of the cause to the claimant

Authorities

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Legislation

  • Employment ActSection 35(1)(c)
  • Employment ActSections 41, 44 and 45
  • Employment ActSection 47(5)
  • Employment ActSection 37(1)(a) & (b)
  • Employment ActSection 2 (definition of casual employee)
  • Employment ActSections 10 and 74
  • Employment ActSection 49 and 49(4)
  • Employment ActSection 28
  • Employment ActSection 51
  • Evidence ActSection 107
  • Constitution of KenyaArticles 47 & 50
  • Fair Administrative Action Actvarious provisions

Cases cited (4)

  • Onyango V Tribe Hotel
    (2024) KEELRC 114 KLR
  • Arthi Highway Developers Limited V West End Butchery Limited & 6 Others
    (2015) eKLR
  • Registered trustees of the Presbyterian Church of East Africa & another v Ruth Gathoni Ngotho - Kariuki
    (2017) eKLR
  • Krystalline Salt Limited V Kwekwe Mwakele & 67 Others
    (2017) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment cause)

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, "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.