Olela v Maasai Bars & Restaurants Limited (Cause 78 of 2023) [2026] KEMC 477 (KLR)
The bottom line
#A Mombasa court ruled a restaurant unfairly sacked its worker of nearly five years, awarding him Kshs.168,000 because the employer produced no evidence at trial.
What this practically means
#Executive summary
#Key legal issues
#Duration of the employment relationship
The Claimant proved employment from 16th August 2015 to 5th March 2020 on a balance of probabilities
NHIF and NSSF statutory records showed contributions predating February 2020, undermining the Respondent's pleaded one-month fixed-term contract. The Respondent did not attend court, never produced the alleged contract through a witness, and offered no admissible rebuttal. Under Sections 10(7) and 74 of the Employment Act the burden shifted to the employer and an adverse inference was drawn.
Whether the termination was unfair and unlawful
The termination was both substantively and procedurally unfair
The unchallenged evidence was that no reason was given, no notice issued and no disciplinary hearing conducted. Under Section 43(1) the employer bears the burden of proving valid reasons; under Section 41 procedural fairness is mandatory. The Respondent adduced no admissible evidence, so neither substantive justification nor procedural fairness was demonstrated, violating Sections 35, 41, 43 and 45.
Notice pay
Claimant entitled to one month's salary in lieu of notice (Kshs.12,000)
Section 35(1)(c) requires twenty-eight days' notice for monthly-paid employees and Section 36 entitles the employee to payment in lieu. The Claimant testified he was dismissed without notice and the Respondent produced no evidence that notice was given.
Compensation for unfair termination
Eight months' gross salary (Kshs.96,000) awarded under Section 49(1)(c)
In exercising discretion under Section 49(4) the Court considered the five years of service, the Respondent's complete failure to comply with the Employment Act, the absence of valid reason and of any disciplinary process, and the absence of any evidence of misconduct by the Claimant, but declined the maximum twelve months.
Legal principles established
#- Pleadings, witness statements and documents filed but not produced through a witness do not amount to evidence
- Submissions are not evidence and cannot fill evidential gaps
- Where an employer fails to produce written particulars or employment records, the burden shifts to the employer and an adverse inference may be drawn
- Failure by a defendant to adduce evidence does not automatically entitle the plaintiff to judgment; the claimant must still prove the case on a balance of probabilities
- Membership of NSSF disentitles an employee from claiming service pay under Section 35(5) of the Employment Act
Court orders
#- 1.A declaration that the termination of the Claimant's employment was unfair and unlawful
- 2.Award of Kshs.12,000 being one month's salary in lieu of notice
- 3.Award of Kshs.96,000 as compensation for unfair termination (eight months' gross salary)
- 4.Dismissal of the claims for service pay and underpayments
- 5.The Respondent shall issue the Claimant with a Certificate of Service within thirty (30) days of the judgment
- 6.The Claimant shall have costs of the suit
- 7.The decretal sum shall attract interest at court rates from the date of judgment until payment in full
- Jurisdiction invoked
- Employment and Labour Relations jurisdiction of the magistrates' court under the Employment Act; claim brought under Sections 35, 41, 43, 45 and 49 of the Employment Act and Article 41 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Miti Limited & 2 others v Suleiman & 5 others (Environment and Land Case 134 of 2017 & 24 (MERU) of 2025 (Consolidated)) [2025] KEELC 5768 (KLR)[2025] KEELC 5768 (KLR)28 Jul 2025applied
Cite this brief
#Cite this brief
Caselaw, "Olela v Maasai Bars & Restaurants Limited (Cause 78 of 2023) [2026] KEMC 477 (KLR)", Case Analysis (2026). MCELRC Cause No. 78 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/477/eng@2026-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.