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ELRCPartially AllowedELRC Appeal (Mombasa) from CMELRC No. E266 of 2022· [2025] KEELRC 2975 (KLR)

Charo v Hemed (Appeal E009 of 2025) [2025] KEELRC 2975 (KLR)

Employment and Labour Relations Court
30 October 2025
MMM. Mbarũ
1,432 words in judgment
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The bottom line

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Kenya's Employment Court ruled that an employer who admits employing someone cannot later demand proof, and must still terminate employment procedurally and pay dues.

What this practically means

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Executive summary

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This first appeal to the Employment and Labour Relations Court at Mombasa, decided by M. Mbarũ J on 30 October 2025, challenged the trial court's judgment of 21 January 2025 in Mombasa CMELRC No. E266 of 2022, which had dismissed a former chef's claims for terminal dues on the ground that he failed to prove an employment relationship or a wage of KSh. 25,000. The court, exercising first appellate jurisdiction, reassessed the record and held that the trial court had erred: the respondent's amended response expressly admitted the employment relationship and the monthly wage, so no evidence was needed to prove employment. The court also found no evidence of the respondent's assertion that the appellant voluntarily left for another job; even had he wished to leave, the employer bore a legal duty to terminate procedurally, and failing to do so amounted to unfair termination contrary to sections 35, 41, 44, 45 and 49 of the Employment Act. The appeal was allowed. Judgment was entered for the appellant for: unfair termination; two months' compensation (KSh. 50,000); notice pay (KSh. 25,000); leave pay (KSh. 29,593.20); and service pay (KSh. 25,000), with costs of the trial court and the appeal awarded to the appellant. Claims for house allowance and overtime were refused, the appellant having been paid above the minimum wage and particulars of overtime being absent.

Key legal issues

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01

Proof of employment relationship

Holding

The trial court erred in requiring proof of the employment relationship where the respondent had admitted it in its (amended) response

Reasoning

The respondent's amended response admitted employment as a chef at KSh. 25,000 per month. Once admitted, no evidence was needed to prove the relationship, and the trial court erred by proceeding on the premise that no employment relationship existed and dismissing the claims.

p. 2
02

Unfair termination

Holding

Termination of the appellant's employment was unfair for want of procedural compliance; the claim of voluntary summary dismissal was unproved

Reasoning

There was no evidence of the appellant's wish to leave employment. Even if he had wished to leave, the employer was under a legal duty to terminate procedurally and issue notice under section 18(5) of the Employment Act, failing which the lapses under sections 35, 41, 44, 45 and 49 rendered the termination unfair.

p. 3
03

Terminal dues assessment

Holding

Notice pay, two months' compensation, leave pay and service pay awarded; house allowance and overtime refused

Reasoning

Notice pay of KSh. 25,000 was due under section 35. Given two years of service, two months' compensation (KSh. 50,000) was appropriate. Leave of KSh. 29,593.20 was fair as no records confirmed leave was granted, and service pay of KSh. 25,000 was justified under section 35(5) and (6) where statutory dues were not paid. House allowance and overtime failed for lack of justification and particulars.

p. 3

Legal principles established

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  • Once an employee files a claim to enforce employment rights, the employer bears the statutory duty to produce work records; failing that, the court is bound to believe the employee
  • An admission of the employment relationship in the employer's response dispenses with the need for evidence to prove it
  • Even where an employee wishes to leave employment, the employer has a legal duty to terminate employment procedurally and pay terminal dues

Court orders

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  1. 1.Judgment in Mombasa CMELRC No. E266 of 2022 set aside
  2. 2.Declaration that employment was terminated unfairly
  3. 3.Compensation awarded at KSh. 50,000
  4. 4.Notice pay KSh. 25,000
  5. 5.Leave pay KSh. 29,593.20
  6. 6.Service pay KSh. 25,000
  7. 7.Costs of the trial court and this appeal awarded to the appellant

Authorities

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Legislation

  • Employment Actsection 44(4)
  • Employment Actsections 10(6) and (7)
  • Employment Actsection 18(5)
  • Employment Actsection 51
  • Employment Actsections 35, 41, 44, 45 and 49
  • Employment Actsection 28
  • Employment Actsection 35(5) and (6)
  • Wage Orders2018 (minimum wage)

Cases cited (2)

  • Judith Atieno Owuor v Sameer Agriculture and Livestock Limited
    [2020] KEELRC 609 (KLR)
  • Galgalo Jarso Jillo v Agricultural Finance Corporation
    [2021] KEELRC 323 (KLR)
On appeal from
Mombasa CMELRC (trial court)
Mombasa CMELRC No. E266 of 2022
Jurisdiction invoked
First appellate jurisdiction over the Employment and Labour Relations Court subordinate court (CMELRC)

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, "Charo v Hemed (Appeal E009 of 2025) [2025] KEELRC 2975 (KLR)", Case Analysis (2025). ELRC Appeal (Mombasa) from CMELRC No. E266 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2975/eng@2025-10-30

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