Edward Linganga Khabongo v Speed Eye Investments Limited T/A Salt Club and Restaurant

Mfangano Street Nairobi, earning a net sum of Kshs.35,000/=. (c) that the Claimant’s contract was oral, and that upon completion of probation, his employment became permanent. (d) that the Claimant’s employment was terminated by the Respondent on 4th October, 2016 without notice; and without payment of the salary for September 2016. (e) that the Claimant was not given/granted leave or paid in lieu thereof. DRAFT (f) that the Claimant was never issued with an itemised payslip during the period of his employment. (g) that prior to the Claimant’s termination, the Respondent hired 2 trainee managers to work under the Claimant, and whom the Claimant paid Kshs.50,000/= per month, which amounted to discrimination against the Claimant. (h) that the Claimant reported the matter [of his termination] to Nairobi Labour Office on 12th October, 2016, upon which a letter was written JUDGMENT Nairobi ELRC Cause No. 1917 of 2017Page 2 of 20

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to the Respondent. That the Respondent did not respond to the letter. (i) that termination of the Claimant’s employment was unlawful and unjustified, as no reason was offered. (j) that the Claimant was terminated without being accorded an opportunity to be heard; and without notice, contrary to the law. (k) 2. that the Claimant was not paid his terminal dues. The Claimant sought the following reliefs:DRAFT (a) A declaration that termination of the Claimant was unlawful, and hence null and void. (b) Re-engagement/Reinstatement of the Claimant in work comparable to that in which he had been employed prior to dismissal, at the same wages and without loss of benefits, salary and allowances. (c) In the alternative to reinstatement, monetary compensation as follows:(i) Compensation Kshs.420,000/=. JUDGMENT Nairobi ELRC Cause No. 1917 of 2017Page 3 of 20 (12 x 35,000) ……

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(ii) One month notice ……… Kshs.35,000/=. (iii) September 2016 salary …… Kshs.35,000/=. (iv) Leave days …………………… Kshs.36,473/=. (v) 28 days off …………………… Kshs.32,648/=. (vi) Compensation for discrimination …… Kshs.2,000,000/=. (vii) Service ……………………… Kshs.17,500/=. DRAFT (viii) 4 days October 2016 ……… Kshs.3,498/=. Total = Kshs.2,580,389/=. (d) Interest at Court rates from the date of termination until payment in full. (e) Certificate of service. (f) Costs of the suit. (g) Any other remedy the Court may deem fit to grant in the circumstance. JUDGMENT Nairobi ELRC Cause No. 1917 of 2017Page 4 of 20

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3. Documents filed alongside the Memorandum of Claim included an affidavit in verification of the claim, the Claimant’s written witness statement dated 12 th June, 2017 and a list of documents dated 13 th June, 2017, listing 3 letters written by the Ministry of Labour to the Respondent on 19th & 26th October, 2017 and 2nd November, 2016 respectively, and a demand letter (dated 21st November, 2016). The Claimant also filed a further list of documents dated 30th September, 2024, listing his work place Identity Card, NSSF Statement, a letter of commitment from the Managers, payment receipt for the Respondent’s Single DRAFT Business Permit (issued by Nairobi City County on 3 rd February, 2016), a letter to Nairobi City County dated 4 th August, 2016, the Respondent’s certificate of incorporation, CR 12 and PIN. 4. The Respondent defended the suit vide a Memorandum of Response dated 18th November, 2023 and denied the Claimant’s claim. The Respondent pleaded:(a) that there was no valid contract between itself and the Claimant, and that the Claimant was not earning the pleaded sum. JUDGMENT Nairobi ELRC Cause No. 1917 of 2017Page 5 of 20

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(b) that the Claimant was not entitled to any terminal dues as there was no valid contract between the parties herein. 5. The Claimant also filed a written witness statement of Albert Karakacha dated 4th November, 2023. 6. The Court’s record shows that an ex-parte Judgment delivered on 27th March, 2023 (Dr. Jacob Gakeri, J) was set aside and a fresh trial ordered pursuant to a written consent dated 30th October, 2023 and recorded by the Court on 16 th DRAFT November, 2023. 7. The ordered fresh trial commenced before me on 19 th February, 2025. The Claimant testified and adopted his filed witness statement as his testimony; and produced in evidence the documents referred to in paragraph 3 of this Judgment. The Claimant further testified:(a) that he (the Claimant) joined the Respondent on 10th February, 2015; and that the Respondent started paying his NSSF contributions in May 2015; and paid upto 2016. JUDGMENT Nairobi ELRC Cause No. 1917 of 2017Page 6 of 20

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(b) that the Respondent’s Claimant/employees to Managers made the sign letter of a commitment on meeting set targets. That the Claimant and another manager (Benjamin Oyoo) signed the undated letter of commitment. (c) that as a Manager, the Claimant was in charge of getting (obtaining) all permits and licences; and even wrote a letter to Nairobi Water and Sewerage Company Limited on 4th August, 2016 over a sewerage problem in the [Respondent’s] premises (exhibit 9). DRAFT (d) That the Respondent’s documents produced in evidence by the Claimant had been given to him for purposes of registering the Respondent for NHIF, NSSF and Tourism Trust Fund. (e) that the Claimant’s employment was terminated on 4th October, 2016 via a text message by the General Manager (Mr. Wanyama) telling him not to report to work, but to instead report to the Director’s office in Tumaini House. (f) that the Claimant reported to the Director’s office on 5th October, 2016, and that the Director JUDGMENT Nairobi ELRC Cause No. 1917 of 2017Page 7 of 20

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told him that he had sacked him as he needed someone who could take his business to the next level. (g) that the Claimant was not paid his salary for September 2016. That he complained to the Labour Office but the Respondent’s Director did not appear at the Labour Office. (h) that the Claimant used to report on duty at 6.00 a.m and leave at 10.00 p.m after meeting the targets set by the Director each day; never went on leave, and could be called to work even DRAFT on his off days. (i) that the Claimant earned Kshs.35,000/= per month while the other Manager, Benjamin Oyoo, earned Kshs.45,000/=. (j) that the Claimant was not paid anything upon termination. 8. Cross-examined, the Claimant testified that there were 32 other people working with him, and that he had not been given any contract. The Claimant further testified:- JUDGMENT Nairobi ELRC Cause No. 1917 of 2017Page 8 of 20

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(a) that he was being paid Kshs.35,000/=, and that he used to sign a voucher on payment, which he was not allowed to take. That he worked for 18 months. (b) that he had nothing to show that the other Manager, Benjamin Kshs.45,000/=; Oyoo, and was therefore being paid demonstrate discrimination. (c) that the undated letter of commitment (signed by the Managers) was signed sometimes in July 2015. DRAFT 9. The Respondent called 1 witness, Albert Karakacha (RW1), who adopted his filed witness statement as his testimony. 10. Cross-examined, RW-1 testified that he was one of the Directors of Speed Eye Investments Limited which was managing Salt Club & Restaurant. The witness denied having known the Claimant or having employed him. He maintained that the Claimant should produce documents to show that he worked for the Respondent. That the Respondent had almost 20 staff (employees) in 2015 – 2016, JUDGMENT Nairobi ELRC Cause No. 1917 of 2017Page 9 of 20

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and had a manager and a supervisor. That he was not able to mention the names of all the employees who had worked for him, and could not remember how he used to pay them in 2015 to 2016. That he (RW-1) issues job identity cards to his employees. That he had not issued the Job Card produced in evidence by the Claimant. 11. RW-1 further testified that he used to make NSSF remittances for his employees. That employment of the Respondent’s employees was done by the Manager, and that RW-1 did not know how much they were being paid. That DRAFT RW-1 only got a list of the employees employed by the Manager. 12. Re-examined, RW-1 testified that he was not authorised by the company (the Respondent) to share private data of employees. That records of employees’ leave days and offdays were there. 13. Having considered the pleadings filed herein by both parties and the evidence adduced in Court thereon, issues that fall for determination, in my view, are as follows:- JUDGMENT Nairobi ELRC Cause No. 1917 of 2017Page 10 of 20

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(a) Whether the Claimant was employed by the Respondent as pleaded by him. (b) Whether termination of the Claimant’s employment was unfair. (c) Whether the reliefs sought by the Claimant are merited. 14. On the first issue, I am satisfied that the Claimant proved, on a balance of probabilities, that he was employed by the Respondent as pleaded by him. Among the evidential documents produced by the Claimant is an NSSF statement DRAFT covering, inter-alia, the pleaded period of employment. The Respondent is named on the said statement as having been the Claimant’s employer. The Respondent did not dispute the validity of the said public document, which also bears the Respondent’s employer number (20393946). All that RW-1 told the Court was that the Claimant had not filed a certificate of electronic evidence regarding the said NSSF statement. 15. The substance and content of the aforesaid NSSF statement not having been disputed by the Respondent, the evidential JUDGMENT Nairobi ELRC Cause No. 1917 of 2017Page 11 of 20

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value of the said document cannot be ignored, and especially when there is on record other corroborative evidence on record such as the Claimant’s job card at the Respondent company, a letter written to a third party by the Respondent and signed by the Claimant in his capacity as the Respondent’s Manager, and other documents of the Respondent that could only have come to the Claimant’s possession as the Respondent’s manager/employee. 16. The Claimant testified that some of those documents were given to him by RW-1’s Personal Assistant (Ruth) in 2015 DRAFT for purposes of registering the Claimant for NSSF and NHIF. The Respondent did not rebut and/or challenge this evidence. How else could the Claimant have gained possession of the Respondent’s KRA PIN Certificate, Certificate of Incorporation, receipt on payment for issuance of a business permit and a copy of the Respondent’s Director’s (RW-1’s) National Identity Card? The Respondent did not offer an alternative explanation on how the Claimant may have obtained the said documents. JUDGMENT Nairobi ELRC Cause No. 1917 of 2017Page 12 of 20

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17. Section 20(1) of the Employment and Labour Relations Court Act provides as follows:“(1) In any proceedings to which this Act applies, the Court shall act without undue regard to technicalities”. 18. The absence of a written employment contract cannot invalidate the fact of the Claimant having been the Respondent’s employee. Under Section 8 of the Employment Act, a contract of employment may be oral or written; and the said Act applies to both. The Claimant DRAFT pleaded that his employment contract was oral, and that he was never issued with an itemised payslip. 19. Section 9(2) of the Employment Act obligates an employer to cause an employment contract to be drawn up, stating particulars of employment. The Respondent herein is shown to have abdicated that statutory obligation; and cannot be allowed to hide behind its own breach of the law. 20. Section 10(7) of the Employment Act provides as follows:- JUDGMENT Nairobi ELRC Cause No. 1917 of 2017Page 13 of 20

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“(7) If in any legal proceedings an employer fails to produce a written contract or the written particulars prescribed in sub-section (1), the burden of proving or disproving an alleged term of employment stipulated in the contract shall be on the employer”. 21. I return a finding, and declare, that the Claimant was employed by the Respondent as a Manager on 10 th February, 2015 upto 4th October, 2016 when his employment was terminated by the Respondent, and that he was earning DRAFT Kshs.35,000/= per month as per his (the Claimant’s) testimony/evidence. 22. On the second issue, I find and hold that termination of the Claimant’s employment was unlawful and unfair as he is not shown to have been given a termination notice pursuant to Section 35(1)(c) of the Employment Act, or to have been paid in lieu of notice. Further, the Respondent did not demonstrate that it had a valid reason for terminating the Claimant’s employment. The Respondent maintained that there had been no valid employment contract between itself JUDGMENT Nairobi ELRC Cause No. 1917 of 2017Page 14 of 20

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and the Claimant, despite the evidence adduced by the Claimant. Further, the Respondent is not shown to have adhered to the mandatory procedure set out in Section 41 of the Employment Act. 23. Section 43(1) of the Employment Act, 2007 provides as follows: “(1) In any claim arising out of a termination of a contract, the employer shall be required to prove the reason or reasons for the termination, and where the employer fails DRAFT to do so, the termination shall be deemed to have been unfair within the meaning of Section 45.” 24. Termination of the Claimant’s employment by the Respondent was procedurally unfair for lack of termination notice, fair hearing before termination, and was substantively unfair for lack of a valid reason for termination as provided in Section 45(2) of the Employment Act. JUDGMENT Nairobi ELRC Cause No. 1917 of 2017Page 15 of 20

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25. On the third issue, and having made a finding that termination of the Claimant's employment was unfair, and having noted that the Claimant’s employment was terminated over 3 years ago, I disallow the principal prayer for reinstatement and/or re-engagement. 26. I allow the alternative relief/prayer in the manner stated herein below. 27. I award the Claimant the equivalent of five (5) months’ salary being compensation for unfair termination of DRAFT employment. That is, Kshs.35,000/= x 5 = Kshs.175,000/=, which I award to the Claimant. 28. I also award the Claimant Kshs.35,000/= being one month salary in lieu of notice, pursuant to Section 35(1)(c) of the Employment Act. 29. The Claimant is also awarded Kshs.35,000/= being unpaid salary for September 2016. The Respondent did not controvert and/or rebut the Claimant’s evidence that his salary for the said month was not paid. JUDGMENT Nairobi ELRC Cause No. 1917 of 2017Page 16 of 20 The claim for

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Kshs.3,498/= being unpaid salary for 4 days worked in October 2016 is allowed. 30. The claim for Kshs.36,473/= being payment for accrued leave days is allowed. Section 74(f) of the Employment Act obligates an employer to keep records on employee’s leave, days taken and days due. No such records were produced by the Respondent. Indeed, no employment records were produced by the Respondent despite RW-1’s testimony that the Respondent had about 20 employees at the material time. DRAFT 31. The claim based on the alleged 28 off days is declined. The Claimant testified that he used to take some off days, and pleaded that he worked 6 days [a week]. No evidence was adduced to demonstrate specific untaken and unpaid off days. 32. The claim for Kshs.2,000,000/= being compensation for discrimination is declined. Discrimination was not proved. JUDGMENT Nairobi ELRC Cause No. 1917 of 2017Page 17 of 20

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33. The claim for Kshs.17,500/= being service pay is declined. The Claimant of/contributor demonstrated to NSSF. that he Section was a 35(6)(d) member of the Employment Act disqualifies him from claiming service pay. 34. The claim for issuance of a certificate of service is allowed pursuant to Section 51 of the Employment Act. 35. In sum, and having considered written submissions filed on behalf of both parties herein, Judgment is hereby entered for DRAFT the Claimant against the Respondent as follows:(a) Compensation employment for unfair termination of …………………………………………………. Kshs.175,000/=. (b) Payment in lieu of notice ………………… Kshs.35,000/=. (c) Unpaid salary for September 2016 …… Kshs.35,000/=. (d) Unpaid salary for 4 days worked in October 2016 …………………………………………………… Kshs.3,498/=. JUDGMENT Nairobi ELRC Cause No. 1917 of 2017Page 18 of 20

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(e) Unpaid leave days ………………………… = …………………… Kshs.36,473/=. Total Kshs.284,971/= 36. The awarded sum shall be subject to PAYE (Pay As You Earn) tax pursuant to Section 49(2) of the Employment Act. 37. The awarded sum shall attract interest at Court rates, from the date of this Judgment until payment in full. DRAFT 38. The Respondent shall issue the Claimant with a certificate of service pursuant to Section 51 of the Employment Act within thirty days from the date of this Judgment. 39. The Claimant is awarded costs of the suit. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER 2026 AGNES KITIKU NZEI JUDGE JUDGMENT Nairobi ELRC Cause No. 1917 of 2017Page 19 of 20

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ORDER This Judgment has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court fees. AGNES KITIKU NZEI JUDGE Appearance: DRAFT Mr. Ogicho for the Claimant Mr. Gitonga for the Respondent JUDGMENT Nairobi ELRC Cause No. 1917 of 2017Page 20 of 20

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