Shuga v Registered Trustees of the Salvation Army Likoni Corps (Cause E143 of 2025) [2026] KEMC 476 (KLR)
The bottom line
#A Mombasa court ruled a security guard's firing was unfair because his employer had no records or solid proof, awarding him over Kshs. 380,000.
What this practically means
#Executive summary
#Key legal issues
#Date of commencement of employment
Employment commenced on 2nd May 2016 as the Claimant asserted, since the Respondent produced no employment records.
The Respondent asserted employment began in July 2019 but produced no appointment letter, payroll, NSSF or NHIF records. Under sections 10(6) and 10(7) of the Employment Act the burden shifted to the employer to disprove the employee's assertion, and having failed to do so the court accepted the Claimant's evidence of 2nd May 2016.
Valid and fair reason for termination
The Respondent failed to prove the alleged gross misconduct of sleeping on duty causing thefts.
Although the Respondent produced committee minutes, a show cause letter and a termination letter, the alleged thefts were never independently investigated: no inventory, police abstract, investigation report, or witness to the sleeping was produced. Suspicion alone does not discharge the section 43 burden of proving reasons for termination.
Procedural fairness under section 41
Service of the show cause letter and attendance at disciplinary hearings were not proved; termination was procedurally unfair.
There was no acknowledgment of receipt of the show cause or termination letters, no affidavit of service, certificate of posting, email, WhatsApp or SMS. The disciplinary minutes were unsigned and uncorroborated, and no member of the disciplinary committee apart from RW1 testified. Compliance with the mandatory requirements of section 41 was therefore not proved on a balance of probabilities.
Remedies and computation of terminal dues
Notice pay, house allowance, leave pay, service pay and compensation awarded, computed on the statutory minimum wage of Kshs. 16,959.90 rather than the unlawfully depressed actual wage; NHIF refund declined.
Having found the Claimant was paid below the prescribed minimum wage, the court held an employer cannot benefit from an unlawful wage when computing terminal dues. House allowance at 15%, leave at 21 days, service pay at 15 days per year for 8 years, and 8 months' compensation under section 49(1)(c) were awarded, with continuing-injury claims limited to 12 months under section 90.
Legal principles established
#- Where an employer fails to produce employment records, the burden shifts to the employer to disprove the employee's assertions as to terms and commencement of employment.
- Both substantive justification and procedural fairness must be proved; failure on either limb renders termination unfair.
- An employer cannot benefit from an unlawfully depressed wage when computing terminal dues; the lawful statutory minimum wage is used instead.
- Claims for house allowance, underpayment and leave pay are continuing injuries limited to twelve months under section 90 of the Employment Act.
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.One month's salary in lieu of notice of Kshs. 16,959.90.
- 3.Underpayments for twelve months of Kshs. 107,518.80.
- 4.House allowance for twelve months of Kshs. 30,527.88.
- 5.Payment in lieu of accrued annual leave of Kshs. 13,698.30.
- 6.Service pay equivalent to fifteen days' wages per completed year of service, Kshs. 78,276.00.
- 7.Compensation for unfair termination equivalent to eight months' gross salary on the statutory minimum wage, Kshs. 135,679.20.
- 8.The claim for refund of NHIF contributions is declined.
- 9.Respondent to issue a Certificate of Service within thirty days.
- 10.Claimant to have costs of the suit.
- 11.Decretal sum to attract interest at court rates from date of judgment until payment in full.
- Jurisdiction invoked
- Employment and Labour Relations jurisdiction of the Magistrates Court (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shuga v Registered Trustees of the Salvation Army Likoni Corps (Cause E143 of 2025) [2026] KEMC 476 (KLR)", Case Analysis (2026). MCELRC Cause No. E143 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/476/eng@2026-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.