Mwasi v Njima Mombasa Phamaceuticals Ltd (Appeal E129 of 2024) [2025] KEELRC 3027 (KLR)
The bottom line
#A Kenyan court confirmed that employers who cannot prove why they fired someone, or that housing was covered, must pay—but trimmed the compensation award slightly.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent's employment was unfairly terminated
Yes - the termination was both substantively and procedurally unfair
The Appellant pleaded desertion, but its witness testified the Respondent was asked to step aside for investigations and then 'terminated herself'. This evidence was at variance with the pleadings, so the reason of absconding was not proved under section 43. Further, the Appellant failed to comply with section 41's procedural requirements of notification, hearing and consideration.
Whether the compensation award of eight months' gross salary was excessive
Yes - reduced to six months' gross salary (KShs 76,200)
The court exercised its discretion under section 49(1)(c) of the Employment Act, finding the trial magistrate did not consider the Respondent's length of service of approximately three and a half years, making eight months' gross salary excessive.
Whether the house allowance award was justified
Yes - house allowance is a statutory right under Section 31 of the Employment Act
Once the employee claims house allowance, the employer bears the duty to demonstrate that the salary earned included house allowance or that accommodation was consistently provided. The Appellant produced no such evidence, as the trial magistrate correctly found.
Whether the Appellant's Counterclaim was correctly dismissed
Yes - the counterclaim remained unproven
The trial magistrate dismissed the counterclaim as unproven, and the appellant's evidence on the alleged theft, fraud and desertion was sketchy and unsupported by documentary evidence; the appellate court did not disturb that finding.
Legal principles established
#- House allowance is a statutory right for an employee under Section 31 of the Employment Act, and where disputed, the employer must demonstrate that salary included house allowance or that accommodation was provided
- Section 47(5) of the Employment Act imposes a reverse burden of proof: the employee must prima facie prove unfair termination, whereupon the burden shifts to the employer to justify it
- Procedural fairness under section 41 of the Employment Act comprises notification, hearing and consideration; the absence of any or all renders termination unfair
- A first appellate court must subject the evidence to fresh scrutiny and come to its own independent findings
Court orders
#- 1.Appeal allowed to a limited extent: the Trial Magistrate's award of eight months' gross salary as compensation for unfair termination is set aside and replaced with six months' gross salary, KShs 76,200
- 2.The remainder of the Trial Court's judgment (unfair termination, notice pay, leave pay, service pay, house allowance, dismissal of the counterclaim) is upheld
- 3.The Appellant shall bear 60% of the costs
- On appeal from
- Principal Magistrate's Court
- not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court (Employment and Labour Relations Court hearing appeal from the Learned Principal Magistrate's judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwasi v Njima Mombasa Phamaceuticals Ltd (Appeal E129 of 2024) [2025] KEELRC 3027 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 10th November 2024 (trial cause number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3027/eng@2025-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.