Sagar & 2 others v Wardy Communications Ltd & another

The Claimants' Case 4. The 1st Claimant, Farah Abdullahi Sagar, states that he was employed on 5th January 2022 as a night guard and stationed at premises in Changamwe, Mombasa County. He states that his monthly salary was KShs 7,000. The 2nd Claimant, Khamis Adhan Dakane, states that he commenced employment on 10th January 2022, also as a night guard at the Changamwe premises, at a monthly salary of KShs 7,000. The 3rd Claimant, Yusuf Abdi Liban, states that he commenced employment on 15th January 2022, similarly as a night guard earning KShs 7,000 per month. 5. Their evidence is that they continued working until 3rd June 2023. At approximately 5.45 p.m. on that date, they reported for duty and the 2nd Respondent, Omar Adan, allegedly told them to go home and never report for work again because their services were no longer required. 6. They state that when they asked why their employment was being terminated without notice, the 2nd Respondent forced them out of the premises. They were given neither a written notice nor a hearing nor any reason for termination. 7. The Claimants further contend that throughout their employment they were not allowed annual leave and that the Respondents did not remit their NSSF and NHIF statutory contributions. 8. In their individual witness statements, the Claimants also alleged that although their monthly wage was KShs 7,000, payments were sometimes reduced to KShs 3,000, KShs 4,000 or KShs 5,000. 9. They produced M-Pesa statements containing transactions from Omar Adan. Their submissions expressly rely on those transactions as proof that their salaries were being paid by the 2nd Respondent. They further contend that Omar Adan acted as an agent of Wardy Communications Limited. 10. The reliefs claimed by each Claimant were pleaded as follows: Item Amount claimed One month's pay in lieu of notice KShs 7,000 House allowance KShs 18,900 Underpayment KShs 179,262 Unpaid leave KShs 9,786 Compensation for unlawful termination KShs 84,000 Unpaid NHIF KShs 9,000 Service pay KShs 7,000 Total KShs 314,948 The 1st Respondent's Case 11. Wardy Communications Limited completely denies employing the Claimants. It maintains that: there was never any contract of service or privity of contract between itself and the Claimants; the Claimants are complete strangers to it; the M-Pesa transactions relied upon by the Claimants are not transactions involving Wardy Communications Limited; it does not own the alleged premises in Changamwe where the Claimants say they worked; and Omar Adan was neither its director nor an authorised agent. 12. The 1st Respondent's witness, Abdifatah Adan Gedi, described himself as a director of Wardy Communications Limited. He stated that Wardy had never entered into any contract of employment https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/842/eng@2026-08-27 2

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with the Claimants, did not own premises in Changamwe, and did not have a director by the name of Omar Adan. 13. Wardy also produced corporate documentation. A Companies Registry record dated 13th June 2025 identies the directors/shareholders appearing therein as Mohamed Adan Geedi Boss and Abdifatah Adan Gedi. Omar Adan is not listed in that record. 14. Wardy consequently submits that even if Omar Adan personally transferred money to the Claimants, the Claimants failed to demonstrate a legal or factual nexus between him and Wardy Communications Limited sucient to bind the company. 15. The 1st Respondent further points out that its own name does not appear in the Claimants' M-Pesa statements as a sender, recipient or beneciary and that no employment contract, sta card, payslip, payroll record, duty roster or independent co-worker was produced connecting the Claimants to Wardy. Issues for determination 16. Having considered the pleadings, witness statements, documentary material and submissions, the issues for determination are: i. Whether an employer-employee relationship was proved between the Claimants and the 1st Respondent; ii. Whether an employer-employee relationship was proved between the Claimants and the 2nd Respondent; iii. If employment is established, whether the termination was unfair and unlawful; iv. Whether the Claimants are entitled to the monetary reliefs sought; and v. Who should bear costs. Whether Wardy Communications Limited employed the Claimants 17. The existence of an employment relationship is a question of fact. The fact that a person describes another as his employer does not, standing alone, establish the relationship. The Court must consider the totality of the evidence, including who engaged the worker, who exercised control, who paid wages, where the work was performed and whether the alleged employer accepted or beneted from the work. 18. The Claimants relied principally on their own statements and the M-Pesa transfers made by Omar Adan. Their diculty, as regards the 1st Respondent, is that the M-Pesa evidence does not itself connect the payments to Wardy Communications Limited. 19. The Claimants submit that Omar Adan was acting as Wardy's agent. That proposition, however, required proof. Agency cannot be established merely because one party alleges that the person making payments was an agent of a company. 20. The Claimants produced no document showing that Omar Adan was: a director of Wardy during the material period; an employee or manager of Wardy; authorised to recruit guards on Wardy's behalf; authorised to make salary payments on Wardy's behalf; or otherwise authorised to bind Wardy Communications Limited. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/842/eng@2026-08-27 3

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21. In contrast, Wardy produced a Companies Registry record identifying other persons as the directors/ shareholders appearing in the company's record as at 13TH June 2025. While that record does not necessarily prove the composition of the board at every point during 2022 and 2023, it materially weakens the Claimants' unsupported assertion that Omar Adan was Wardy's director. 22. There is also no evidence connecting Wardy Communications Limited to the alleged duty station at Mombasa Sewage in Changamwe. Wardy expressly denied owning, operating or managing that premises or any project there. The Claimants did not produce a contract, correspondence, signage, work roster, site record or independent testimony demonstrating that the site belonged to or was operated by Wardy. 23. I accept that absence of a written contract is not necessarily fatal to an employee's case. Employment may be oral. Equally, an employer generally bears statutory responsibilities for keeping employment records. 24. That principle, however, does not mean that any person who merely asserts employment automatically shifts the evidential burden to the alleged employer. Some prima facie evidential nexus must rst be established. 25. Here, the evidence establishes a nexus between the Claimants and Omar Adan. It does not satisfactorily establish a nexus between the Claimants and Wardy Communications Limited. 26. I consequently nd that the Claimants have not proved on a balance of probabilities that Wardy Communications Limited employed them. It follows that the claim against the 1st Respondent fails. Whether Omar Adan employed the Claimants 27. The position of the 2nd Respondent is materially dierent. Omar Adan was joined as the 2nd Respondent in the Amended Memorandum of Claim. According to the record before Court, he was served but neither entered appearance nor led a response. Failure to defend a claim does not automatically entitle a claimant to judgment. The Claimants must still prove their case on a balance of probabilities. In this case, however, there is evidence beyond mere assertion. 28. The Claimants' evidence is consistent that Omar Adan was the person who dealt with them in connection with their work. They produced M-Pesa records showing repeated transfers of money from Omar Adan. Their individual witness statements similarly state that Omar Adan dealt with them and ultimately dismissed them. 29. The Claimants' evidence that Omar Adan personally made payments to them is materially corroborated by the M-Pesa records. The 2nd Respondent provided no explanation for those repeated payments. 30. I am mindful that a transfer of money through M-Pesa does not invariably prove that the transfer was salary. Nevertheless, evidential material must be considered cumulatively rather than in isolation. 31. In the present case there is: the Claimants' consistent evidence that Omar Adan engaged them as guards; repeated payments from Omar Adan appearing in their M-Pesa statements; the Claimants' evidence that he supervised/dealt with them in relation to their work; the evidence that he personally communicated the termination; and no response whatsoever from Omar Adan contradicting that evidence. 32. Taken cumulatively, I am satised on a balance of probabilities that the Claimants established an employment relationship with Omar Adan, the 2nd Respondent. I therefore reject the Claimants' case https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/842/eng@2026-08-27 4

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that the Respondents were proved to be joint employers. What has been proved is employment by the 2nd Respondent personally. Date of Termination 33. The pleadings, witness statements and the greater part of the Claimants' submissions consistently state that termination occurred on 3rd June 2023. Paragraph 15 of the written submissions, however, refers to 31st July 2023. Written submissions are not evidence. They cannot amend the factual case presented through pleadings and witness evidence. I therefore nd, on the evidence, that the relevant termination date was 3rd June 2023. Whether the Termination was Unfair 34. Once the Claimants established that they were employees of the 2nd Respondent and that their employment was terminated, the fairness of that termination falls to be considered under sections 41, 43, 45 and 47(5) of the Employment Act. 35. The Claimants' uncontroverted evidence is that they reported for duty at approximately 5.45 p.m. on 3rd June 2023 and were simply informed by Omar Adan that their services were no longer required and that they should never return to work. No written notice was issued. No reason for termination was established. No disciplinary accusation was put to the Claimants. No hearing was conducted. No opportunity to respond to any allegation was given. 36. Section 43 places upon an employer the burden of proving the reason for termination, while section 41 prescribes the minimum procedural safeguards to be observed in termination for misconduct, poor performance or physical incapacity. Section 45 requires both substantive justication and procedural fairness. 37. The principle was correctly captured in Walter Ogal Anuro v Teachers Service Commission [2013] eKLR, relied upon by the Claimants: a termination must satisfy both substantive and procedural fairness. The 2nd Respondent did not place before the Court any reason whatsoever for dismissing the Claimants. Neither did he demonstrate any procedure preceding the termination. I therefore nd that the termination of each Claimant's employment on 3rd June 2023 was substantively and procedurally unfair. Reliefs 38. One month's salary in lieu of notice- The Claimants were paid monthly and no notice was given. They are therefore entitled to one month's salary in lieu of notice under section 35 of the Employment Act. I award each Claimant: KShs 7,000. 39. House allowance- The Claimants state that their monthly salary of KShs 7,000 did not include house allowance and that housing was not provided. The claim presented, however, contains material inconsistencies. The table describes house allowance for 16 months, the accompanying formula uses 18 months, while the written submissions later refer to 12 months. The Court cannot ignore those inconsistencies, but neither do they extinguish a statutory entitlement where employment and the absence of housing have been proved. Each Claimant had completed at least 16 full months of service by 3rd June 2023. 40. On the pleaded rate of 15% of the KShs 7,000 basic wage: KShs 7,000 × 15% = KShs 1,050 per month. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/842/eng@2026-08-27 5

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For 16 complete months: KShs 1,050 × 16 = KShs 16,800. I consequently award KShs 16,800 to each Claimant under this head. 41. Underpayment of wages- The Claimants' contractual wage was KShs 7,000 per month. They relied upon Legal Notice No. 125 of 2022 and submitted that the prescribed minimum wage for a night guard in Mombasa was KShs 16,959 per month. The Claimants claimed underpayment for 18 months calculated as: KShs 16,959 – KShs 7,000 = KShs 9,959; KShs 9,959 × 18 = KShs 179,262. There is, however, a diculty with that computation. Legal Notice No. 125 of 2022 cannot simply be applied retrospectively to employment months predating its operative period. Further, none of the Claimants worked for a complete 18 months. Their employment commenced in January 2022 and ended on 3rd June 2023. The Court therefore cannot adopt the pleaded 18-month computation. Taking the statutory minimum relied upon by the Claimants and applying it only to the 13 complete months from May 2022 to May 2023, the monthly dierential is: KShs 16,959 – KShs 7,000 = KShs 9,959. For 13 months: KShs 9,959 × 13 = KShs 129,467. I award KShs 129,467 to each Claimant as underpayment. 42. Unpaid annual leave- The Claimants state that they never proceeded on annual leave. No evidence was produced by the 2nd Respondent showing that annual leave was granted or paid. The Claimants nevertheless calculated leave for two years, notwithstanding that none of them completed two years of service. Each Claimant completed at least one full year.Applying the Claimants' pleaded daily rate of KShs 233 to the statutory 21 days for one completed year gives: 21 × KShs 233 = KShs 4,893. No suciently precise computation was presented for accrued leave during the incomplete second year. I therefore award KShs 4,893 to each Claimant. 43. Unpaid NHIF- The Claimants seek KShs 9,000 each as "unpaid NHIF". Statutory NHIF contributions are ordinarily remittances to the statutory scheme and are not, without more, terminal cash benets payable directly into the employee's hands. The Court was also not supplied with an NHIF statement or other independent record demonstrating the precise arrears claimed. I therefore decline to make a direct monetary award of KShs 9,000 to each Claimant under this head. The claim for unpaid NHIF is dismissed. 44. Service pay- The Claimants seek service pay on the basis that NSSF contributions were allegedly not remitted. Section 35 of the Employment Act excludes from service pay employees who fall within the statutory exceptions, including qualifying social security arrangements. No NSSF statement, registration record or other independent material was placed before the Court to establish whether the Claimants were registered, whether contributions had been made at any stage, or the precise status of their accounts. The Court cannot infer entitlement to service pay merely from the allegation of nonremittance. The claim for service pay is therefore not proved and is declined. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/842/eng@2026-08-27 6

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45. Compensation for unfair termination- The Claimants pleaded compensation of KShs 84,000 each, which is equivalent to 12 months at their KShs 7,000 monthly wage, notwithstanding that the formula in the pleading incorrectly records "(30,000 × 12)". Compensation under section 49(1)(c) is discretionary and is not automatically payable at the statutory maximum. In exercising that discretion I have considered: that the Claimants had worked for approximately 16 to 17 months; that the termination was abrupt; that no reason whatsoever was given; that no hearing was held; that there is no evidence that the Claimants contributed to the termination through misconduct; that there is no evidence of prior disciplinary infractions; and the relatively short duration of the employment relationship. I consider compensation equivalent to six months' salary fair and proportionate. Each Claimant is therefore awarded: 6 × KShs 7,000 = KShs 42,000. Summary of Awards 46. The amount due to each Claimant from the 2nd Respondent is therefore: Head of award Amount One month's salary in lieu of notice KShs 7,000 House allowance KShs 16,800 Underpayment KShs 129,467 Unpaid leave KShs 4,893 Compensation – 6 months KShs 42,000 Total KShs 200,160 47. Accordingly: 1st Claimant – Farah Abdullahi Sagar: KShs 200,160 2nd Claimant – Khamis Adhan Dakane: KShs 200,160 3rd Claimant – Yusuf Abdi Liban: KShs 200,160 Grand Total: KShs 600,480. 48. Certicate of service- The Claimants also stated in their witness statements that they were never issued certicates of service. A certicate of service is a statutory entitlement upon termination where the requirements of section 51 of the Employment Act are satised. The 2nd Respondent shall therefore issue each Claimant with a certicate of service within thirty (30) days from the date of this Judgment. 49. Costs and interest- The Claimants have substantially succeeded against the 2nd Respondent and are entitled to the costs of the claim as against him. The claim against the 1st Respondent has failed. Considering the circumstances in which the Claimants associated the 2nd Respondent with the 1st Respondent, and exercising the Court's discretion in an employment dispute, I direct that each party shall bear its own costs as between the Claimants and the 1st Respondent. The monetary awards shall attract interest at court rates from the date of this Judgment until payment in full. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/842/eng@2026-08-27 7

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Final Orders 50. In the result, Judgment is entered as follows: a. The claim against Wardy Communications Limited, the 1st Respondent, is dismissed. b. A declaration is hereby issued that the termination of the Claimants' employment by Omar Adan, the 2nd Respondent, on 3rd June 2023 was unfair and unlawful. c. Farah Abdullahi Sagar, the 1st Claimant, is awarded KShs 200,160 against the 2nd Respondent. Khamis Adhan Dakane, the 2nd Claimant, is awarded KShs 200,160 against the 2nd Respondent. Yusuf Abdi Liban, the 3rd Claimant, is awarded KShs 200,160 against the 2nd Respondent. The aggregate award against the 2nd Respondent is KShs 600,480. The claims for unpaid NHIF and service pay are dismissed. d. The 2nd Respondent shall issue each Claimant with a certicate of service within thirty (30) days. e. The Claimants shall have costs of the suit against the 2nd Respondent. f. As between the Claimants and the 1st Respondent, each party shall bear its own costs. g. The monetary awards shall attract interest at court rates from the date of Judgment until payment in full. Orders accordingly. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOSFT TEAMS AT MOMBASA THIS 27TH AUGUST 2026. ………………………………………………. EMILY M. MWAMUYE SENIOR RESIDENT MAGISTRATE https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/842/eng@2026-08-27 8

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