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ELRCPartially AllowedMombasa ELRC Appeal from CMLRC No. 343 of 2022· [2025] KEELRC 2313 (KLR)

Kaikai v Ufanisi Freighters (K) Limited (Appeal E056 of 2025) [2025] KEELRC 2313 (KLR)

Employment and Labour Relations Court
31 July 2025
MMM. Mbarū
1,248 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court upheld a driver's summary dismissal for misconduct but ruled that paying below Kenya's minimum wage is unlawful, awarding limited back-pay.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Mombasa against the judgment of 14 March 2025 in Mombasa CMLRC No. 343 of 2022, in which the learned magistrate dismissed a former heavy commercial driver's claims for unpaid salary, notice pay, 12 months' compensation, underpayments, public holiday pay, unpaid leave and overtime following his summary dismissal for carrying an unauthorised passenger in vehicle KDE 145H. The appellant contended that no notice to show cause had been issued and that notice pay and compensation were wrongly denied. The court, per M. Mbarū J, applied section 44 of the Employment Act and the requirement of substantive justification and fair procedure, holding that the appellant admitted the misconduct in his reply to the show-cause notice and was still afforded a disciplinary hearing, so the summary dismissal was justified and notice pay and compensation were not payable. However, the court found the contractual wage of Ksh. 33,544 was below the applicable Wage Order minimum of Ksh. 35,221.50, rendering such terms unlawful, and awarded underpayment of Ksh. 1,677.50 per month, capped at 12 months under section 90 of the Employment Act, following Kenya Railways Corporation v Ododa, totalling Ksh. 20,130. The appeal otherwise failed; each party was ordered to bear its own costs and the magistrates' judgment was reviewed to that extent only.

Key legal issues

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01

Justification of summary dismissal for gross misconduct

Holding

The summary dismissal was justified; the appellant admitted carrying an unauthorised passenger contrary to an internal memo, and was given a chance to respond to the show-cause notice and attend a disciplinary hearing.

Reasoning

The court applied section 44 of the Employment Act and the requirement of substantive justification plus fair procedure. The appellant admitted in his reply to the notice to show cause that he carried his wife in the allocated vehicle KDE 145H and sought pardon. Despite the admission he was still invited to a disciplinary hearing, satisfying procedural fairness, and the misconduct warranted summary dismissal under the internal memo of 25 August 2021.

p. 3
02

Underpayment relative to Wage Orders

Holding

The contract wage of Ksh. 33,544 was below the applicable minimum (Ksh. 35,221.50 including house allowance), entitling the appellant to Ksh. 1,677.50 per month, but recovery was limited to 12 months under section 90.

Reasoning

The contract dated 28 July 2018 provided a consolidated wage of Ksh. 33,544, below the Wage Order minimum for a heavy commercial driver. Such terms are unlawful. However, under section 90 of the Employment Act, monthly-accruing benefits must be claimed within 12 months of cessation, so only 12 months of underpayment (Ksh. 20,130) was awarded, following Kenya Railways Corporation v Ododa.

p. 3

Legal principles established

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  • For a termination or summary dismissal to be fair, there must be both substantive justification and a fair procedure, including allowing the employee to make representations.
  • Under section 90 of the Employment Act, employment benefits accruing monthly, weekly or daily must be claimed within 12 months from the date of cessation of employment.
  • Contractual terms paying below the statutory minimum wage are unlawful and not justified.

Court orders

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  1. 1.The appeal succeeds only to the extent of an award of underpayments of Ksh. 20,130 (12 months at Ksh. 1,677.50)
  2. 2.Each party shall meet its own costs
  3. 3.The judgment in Mombasa CMELRC No. 343 of 2022 is reviewed accordingly
On appeal from
Magistrates' Court (CMELRC), Mombasa
Mombasa CMLRC No. 343 of 2022
Jurisdiction invoked
First appellate jurisdiction over magistrates' courts employment claims (Employment and Labour Relations Court)

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, "Kaikai v Ufanisi Freighters (K) Limited (Appeal E056 of 2025) [2025] KEELRC 2313 (KLR)", Case Analysis (2025). Mombasa ELRC Appeal from CMLRC No. 343 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2313/eng@2025-07-31

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