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ELRCPartially AllowedMombasa ELRC Appeal arising from Mombasa CMELRC E526 of 2023· [2025] KEELRC 1951 (KLR)

Mweni v Child Welfare Society of Kenya (Appeal E040 of 2024) [2025] KEELRC 1951 (KLR)

Employment and Labour Relations Court
30 June 2025
3,127 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a first-instance appellate judgment of the Employment and Labour Relations Court at Mombasa, delivered by M. Mbarũ, J, on 30 June 2025, in an appeal by a former caregiver against the judgment in Mombasa CMELRC E526 of 2023 (delivered 15 March 2024), which had dismissed her claims. The trial judgment had earlier been set aside ex parte on 27 February 2025 for want of service, but the respondent never filed a response or attended the trial court. The appellant was engaged on successive one-year fixed-term contracts from July 2012 until 30 June 2023. The contract contained a clause conditioning renewal on availability of funds, performance, conduct, productivity and prevailing human resource needs. The court held that this clause created a legitimate expectation that the employer would undertake that assessment before renewing or declining to renew the contract; the respondent having produced no material addressing clause (4), the failure to do so amounted to unfair termination. The court also held that a discharge voucher does not bar an employee from questioning the lawfulness and fairness of termination, and that requiring an unopposed claimant to prove the reasons for non-renewal under Section 47(5) of the Employment Act placed an unfair burden on her. The claim for June 2023 salary, pension contributions and house allowance failed, and leave pay was limited to 18 months under Section 28(4). The court set aside the trial judgment, declared the termination unfair, and awarded notice pay of Ksh 33,396, three months' compensation of Ksh 100,188 and leave pay of Ksh 36,735.60, less sums already received, with costs of the appeal and the trial court.

Key legal issues

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01

Legitimate expectation of renewal of a fixed-term contract

Holding

The contractual renewal clause created a legitimate expectation that the employer would assess funds, performance, conduct, productivity and human resource needs before non-renewal.

Reasoning

Clause (4) of the contract set out conditions for renewal. The court found that with a fixed-term contract containing such a clause, the respondent had a corresponding duty to assess those criteria before renewal or non-renewal. The respondent entered the appeal without responding before the trial court and produced no material addressing clause (4); therefore the failure to address non-renewal resulted in unfair termination.

p. 6
02

Effect of a discharge voucher on an employee's claim

Holding

A discharge voucher does not bar an employee from challenging the lawfulness and fairness of termination.

Reasoning

The court relied on authority that where lawfulness and fairness of termination are in question, an employee cannot be barred from court despite signing a discharge voucher. However, the dues paid and acknowledged by the appellant must be considered in processing the awards, and interrogation of the voucher documents is a matter for the trial court.

p. 6
03

Burden of proof where the employer files no response

Holding

With no response filed, the appellant's material stands; the burden under Section 47(5) cannot be shifted to require her to prove reasons for non-renewal.

Reasoning

The magistrate had held under Section 47(5) that the employee bears the burden of proving unfair dismissal. On appeal, the court held that since the respondent did not file a response and never attended the trial court to justify the non-renewal, there was nothing to justify the termination, and requiring the appellant to demonstrate the reasons placed an unfair burden on her.

p. 6
04

Terminal dues quantification

Holding

Notice pay of Ksh 33,396, three months' compensation of Ksh 100,188 and 18 months' leave pay of Ksh 36,735.60 awarded; June 2023 salary, pension and house allowance claims dismissed.

Reasoning

The wage of Ksh 33,396 was due for notice pay. Compensation was limited to three months because dues were promptly paid. Leave was limited to 33 days over 18 months under Section 28(4) for want of work records. June salary was covered by the cheque; pension deductions went to NSSF; the caregiver wage exceeded the applicable General Wage Orders minimum.

p. 6

Legal principles established

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  • A discharge voucher does not negate the employee's rights when the lawfulness and fairness of termination are in question; the employee cannot be barred from court.
  • Where a fixed-term contract contains a renewal clause conditioned on funds, performance, conduct, productivity and human resource needs, the employer must undertake that assessment before non-renewal; failure to do so renders the termination unfair.
  • Requiring an employee to prove reasons for non-renewal under Section 47(5) where the employer filed no response places an unfair burden on the employee.
  • In the absence of work records, accrued leave can only be claimed for 18 months under Section 28(4) of the Employment Act.

Court orders

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  1. 1.Judgment in Mombasa CMELRC E0526 of 2023 set aside and judgment entered for the appellant
  2. 2.Declaration that employment was terminated unfairly
  3. 3.Compensation of Ksh 100,188 (three months' wages)
  4. 4.Notice pay of Ksh 33,396
  5. 5.Leave pay of Ksh 36,735.60
  6. 6.Dues (b), (c) and (d) to be paid less what the appellant has received and acknowledged in terminal dues
  7. 7.Costs of the appeal and proceedings before the trial court awarded to the appellant
On appeal from
Mombasa CMELRC
E526 of 2023
Jurisdiction invoked
Appeal from the magistrates' court under sections 17 and 19 of the Employment Act (as framed by the court); first appellate jurisdiction over CMELRC 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, "Mweni v Child Welfare Society of Kenya (Appeal E040 of 2024) [2025] KEELRC 1951 (KLR)", Case Analysis (2025). Mombasa ELRC Appeal arising from Mombasa CMELRC E526 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1951/eng@2025-06-30

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