Chivuto v Ready Consultancy Ltd (Cause E487 of 2022) [2026] KEMC 446 (KLR)
The bottom line
#A Mombasa court ruled that firing an employee without a hearing or written reasons was unfair, awarding him Kshs.136,500 despite several claims failing for lack of proof.
What this practically means
#Executive summary
#Key legal issues
#Effect of inconsistent submissions vis-à-vis pleadings and evidence
The Respondent's submissions recasting the Claimant as a casual employee cannot supersede its pleaded defence and evidence; the dispute is determined on the pleadings and evidence on record, and Angeline Musali Mutua v Vegpro (K) Ltd is distinguishable on the facts.
The Statement of Response admitted employment from 2nd September 2018 to 7th March 2022 and defended termination for gross misconduct, while submissions introduced an entirely different case of casual employment never terminated. The Court held submissions are not evidence and cannot amend pleadings, and distinguished the Vegpro authority because the Respondent itself admitted an employment relationship and defended a termination.
Substantive fairness of the termination
The Respondent failed to discharge the burden under Section 43 to prove valid and fair reasons for termination.
The Respondent's evidence on alleged absenteeism consisted solely of the supervisor's statement describing two isolated incidents after which the Claimant apologised and continued working. No attendance registers, warning letters, disciplinary records or other documentary evidence corroborated persistent absenteeism or linked the earlier incidents to the termination. The statutory burden under Sections 43 and 45 was therefore not discharged.
Procedural fairness of the termination
The Respondent failed to comply with the mandatory procedure under Section 41 of the Employment Act.
There was no notice to show cause, no disciplinary proceedings or minutes, no invitation to a hearing, no notification of the right to be accompanied, and no written termination letter. The Claimant was simply told his services were no longer required. The procedural safeguards under Section 41 are mandatory and none was observed, rendering the termination procedurally unfair.
Remedies
One month's notice pay, five months' salary as compensation under Section 49(4), and accrued leave pay awarded; house allowance, overtime, service pay and NHIF claims dismissed for want of proof; certificate of service ordered.
Notice pay followed from the absence of notice or payment in lieu. Compensation was assessed at five months' gross salary considering the factors in Section 49(4), including the Respondent's failure to follow statutory procedure, absence of supporting evidence, the Claimant's three-and-a-half years of service and the Respondent's inconsistent position. Leave was awarded on the statutory entitlement proved. Other heads failed on the Claimant's own evidentiary burden.
Legal principles established
#- Parties are bound by their pleadings; submissions cannot introduce a new case or amend pleadings, and do not constitute evidence.
- Once an employee asserts leave was not granted, the evidential burden shifts to the employer to produce statutory leave records under Section 74 of the Employment Act.
- An employer alleging misconduct must produce employment records in its custody to substantiate the allegation under Sections 43 and 45.
Court orders
#- 1.A declaration that the termination of the Claimant's employment was unfair and unlawful within the meaning of Sections 41, 43 and 45 of the Employment Act, 2007
- 2.Judgment in favour of the Claimant against the Respondent in the sum of Kshs.136,500
- 3.The Respondent to issue the Claimant with a Certificate of Service within thirty (30) days pursuant to Section 51 of the Employment Act
- 4.Interest at court rates on the award from the date of judgment until payment in full
- 5.The Claimant to have the costs of the suit
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the magistrates' court (MCELRC Cause); Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chivuto v Ready Consultancy Ltd (Cause E487 of 2022) [2026] KEMC 446 (KLR)", Case Analysis (2026). MCELRC Cause No. E487 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/446/eng@2026-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.