Hakika Transport Services Limited v Juma (Appeal E268 of 2024) [2025] KEELRC 1954 (KLR)

Under section 47(5) of the Employment Act, the employee must establish a prima facie case of unfair termination; once fulfilled, the employer must justify the reasons. The appellant's response consisted solely of denials with no substantive evidence beyond the written contract, so it failed to discharge the burden that fell upon it.

Theft at work and unauthorised absence can justify summary dismissal under section 44, but section 30 permits absence due to illness with a medical certificate on return. The respondent's medical notes and certificate were unchallenged, and the appellant knew Bakari Kombo had stolen the tyre. The magistrate's findings could not be faulted.

The respondent testified he earned Ksh.30,789 and filed pay slips. The appellant never challenged them. Although a contract dated 5 May 2017 was filed, it was denied and never issued to the respondent; the pay slips were correct from that date until 16 January 2024, so the trial court used the correct figures.

The right to annual leave is secured under section 28 of the Act, but accumulation beyond 18 months requires employer approval under section 28(4). The appellant filed no work records showing leave taken, so the respondent was entitled to only 33 leave days, reducing the award from the trial court's figure.

The respondent's wage of Ksh.30,789 was not regulated under the Wage Orders and applying the general minimum wage for Mombasa placed him above it. Claiming house allowance on top of the generous wage paid would amount to unjust enrichment, so the trial court's award was set aside.

The appellant argued the 12-month award was excessive without reasons, citing Kenya Broadcasting Corporation v Geofirey Wakio. The court agreed 12 months should arise only in rare cases with reasons stated, but found the magistrate had in fact awarded 7 months, which stood.