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ELRCPartially AllowedCause No E816 of 2021· [2025] KEELRC 3691 (KLR)

Maina v Yantai Welworth International Trade Company Limited & 2 others (Cause E816 of 2021) [2025] KEELRC 3691 (KLR)

Employment and Labour Relations Court
18 December 2025
3,869 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded an employee 12 months' salary after his employer sacked him without notice, a hearing, or proof of misconduct.

What this practically means

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Executive summary

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In this first-instance employment claim, the Claimant sought declarations that his summary dismissal was unlawful and unfair, special damages of Kshs.10,471,429 for unpaid salaries, a certificate of service, general damages and costs. He asserted he was appointed in November 2019 as financial manager and representative of the 1st Respondent (a Chinese investor company) and the 3rd Respondent (its director, Liu Zhigang), working 22 months without salary, while also employed by the 2nd Respondent (Careplus Limited). The Respondents denied any employment relationship beyond the 2nd Respondent and justified the termination as gross misconduct or abscondment. The court framed three issues: the identity of the employer, whether termination was unfair, and entitlement to reliefs. Applying a substance-over-form test, it found no employment relationship with the 1st and 3rd Respondents, as there was no proof of any contractual payment obligation by them. The Claimant was held to be an employee of the 2nd Respondent. The abscondment defence failed for want of evidence, and the termination was found both procedurally and substantively unfair - no notice, hearing, or proof of misconduct was adduced, breaching Section 41 of the Employment Act and Article 47 of the Constitution. The court awarded 12 months' salary as maximum compensation (Kshs.720,000), one month's salary in lieu of notice (Kshs.60,000), service pay (Kshs.30,000), and untaken leave pay (Kshs.120,000), ordered a certificate of service within 14 days, dismissed the claims against the 1st and 3rd Respondents, and awarded costs against the 2nd Respondent. Claims for house allowance and separate constitutional damages failed for want of proof.

Key legal issues

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01

Whether an employment relationship existed with the 1st and 3rd Respondents

Holding

No employment relationship established with the 1st and 3rd Respondents; the Claimant was employed only by the 2nd Respondent at Kshs.60,000 monthly pay

Reasoning

The court applied a substance-over-form test, noting the Claimant performed continuous duties for the 2nd Respondent but there was no direct evidence of a contractual obligation by the 1st Respondent to pay him salary. Reliance on Kenya Airways Ltd v Eric Ombongi on control, payment and authority. Claims against the 1st and 3rd Respondents therefore failed.

p. 6
02

Whether the termination was procedurally fair

Holding

Procedurally unfair - no notice, no hearing, in breach of Section 41 of the Employment Act and Article 47 of the Constitution

Reasoning

The abscondment defence was unsupported by evidence; the letter informing of termination was not produced. No notice of termination was issued and no hearing accorded, breaching the mandatory requirements of Section 41 and Article 47, following Mary Mutanu Mwendwa v Ayuda and Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited.

p. 7
03

Whether the termination was substantively justified

Holding

Substantively unfair - no evidence of the alleged gross misconduct

Reasoning

The Respondents alleged gross misconduct including threats, harassment and destruction of financial data, but led no evidence to prove these allegations. Applying Pius Machafu Isindu v Lavington Security Guards Limited, the employer must prove reasons for termination and their validity; this burden was not discharged.

p. 7
04

Entitlement to leave and service pay

Holding

Two years' untaken leave compensation and service pay of 15 days for one completed year awarded

Reasoning

Section 28 of the Employment Act entitles employees to 21 days' paid annual leave after 12 months' service. The 2nd Respondent adduced no evidence that leave was granted or paid for. Service pay was uncontroverted, with no proof of NSSF remittance, pension membership or gratuity.

p. 8

Legal principles established

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  • Substance over form governs determination of an employment relationship - actual control, payment and authority are critical
  • An employer alleging desertion must demonstrate efforts to reach the employee; mere assertion of desertion cannot justify termination
  • The employer bears the burden of proving reasons for termination, their validity and fairness

Court orders

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  1. 1.A declaration that the Claimant's termination by the 2nd Respondent is unlawful and unfair
  2. 2.An order that the 2nd Respondent shall pay the Claimant 12 months' salary as compensation for the unfair termination at Ksh.720,000/-
  3. 3.One month's salary in lieu of notice at Kshs.60,000/-
  4. 4.Service pay at Kshs.30,000/-
  5. 5.Payment on account of annual leave Kshs.120,000/-
  6. 6.That the 2nd Respondent shall issue the Claimant with a certificate of service within 14 days of this judgment
  7. 7.The claims against the 1st and 3rd Respondents are dismissed
  8. 8.The 2nd Respondent shall bear the costs of the suit

Authorities

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Legislation

  • Constitution of KenyaArticles 41 and 47
  • Employment ActSections 28, 35, 41, 43, 45, 46, 47(5)
  • Regulation of Wages and Conditions of Employment ActNot specified

Cases cited (6)

  • Kenya Airways Ltd v. Eric Ombongi
    [2005] eKLR
  • Ronald Nyambu Daudi v Tornado Carriers Limited
    [2019] eKLR
  • Mary Mutanu Mwendwa v Ayuda
    [2013] eKLR
  • Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited
    [2013] eKLR
  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
  • Peter Kamau v. Kenya Ports Authority
    [2011] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 41 of the Constitution and the Employment Act

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, "Maina v Yantai Welworth International Trade Company Limited & 2 others (Cause E816 of 2021) [2025] KEELRC 3691 (KLR)", Case Analysis (2025). Cause No E816 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3691/eng@2025-12-18

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