Musembi v Cafesserie Ltd

f. Costs of the suit and interest; and g. Any other relief the Court may deem t to grant. Procedural History 4. According to the Claimant's submissions, the Respondent was physically served with the pleadings on 24th October 2025, and an adavit of service was led. 5. The Respondent did not enter appearance or le a response. On 24th February 2026, the Court therefore directed that the matter proceed by way of formal proof on 22nd June 2026. The matter consequently proceeded undefended. 6. It must nevertheless be stated from the outset that the absence of a defence does not automatically entitle a Claimant to judgment. The Claimant retains the legal burden of proving his claim on a balance of probabilities. 7. Section 47(5) of the Employment Act places upon an employee the initial burden of proving that an unfair termination or wrongful dismissal occurred, after which the burden shifts to the employer to justify the grounds of termination. The Court of Appeal reiterated this position in Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR, holding that an employee must establish not only that termination occurred but also lay the factual foundation showing that it was unfair or wrongful before the employer is called upon to justify the termination. The Claimant's Case 8. The Claimant testied that he commenced employment with the Respondent on 17th July 2011 as a waiter. He stated that he worked under several managers, including Ra Talia, Eve Njoroge and Angela Ndugi, and that he worked diligently for the growth of the Respondent's business. 9. He further stated that employees who joined the Respondent after him worked under him while he served as a junior or senior waiter, and that given his experience and skills, he expected to progress within the Respondent's establishment. 10. The Claimant's evidence was that while at home on his o day, he received a telephone call from one of the Respondent's managers, Shelly Nyangau, through telephone number 0720816779, instructing him not to report for duty the following day until he received a call from the Respondent's proprietor or boss, Mr. Isaac Shpak. 11. According to the Claimant, no reason was given for the instruction. He stated that after about two days, he contacted the General Manager, Angela Ndugi, who allegedly informed him that an audit concerning the waiters had been sent to Mr. Isaac Shpak through WhatsApp. 12. The Claimant further stated that he attempted to contact Mr. Shpak but received no communication and thereafter considered his employment to have been terminated. The Claimant's case is that he was not: informed of any wrongdoing; issued with a notice to show cause; given a warning; invited to any disciplinary hearing; aorded an opportunity to defend himself; issued with a termination letter; or given notice of termination. He therefore contends that the termination lacked both a substantive justication and procedural fairness. 13. George Waweru Chege stated that he had been employed by the Respondent from 2012 to 2023 as a waiter. He stated that the Claimant joined the Respondent in 2011, was one of its best employees, trained junior sta and had not had problems with the Respondent during his employment. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/843/eng@2026-08-27 2

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Signicantly, George referred to the Claimant's termination as having occurred in 2023 and expressed the opinion that the termination was unfair. 14. Boniface Wahome Karuiki similarly stated that he worked for the Respondent between 2013 and 2019 as a waiter. He stated that the Claimant joined the Respondent in 2011, trained junior members of sta, and had served for more than ten years. 15. Boniface stated that after he had left the Respondent’s employment, he remained in contact with management sta and was subsequently informed that the Claimant had been terminated without notice, hearing or proper procedure. Boniface likewise referred to the termination as having occurred in 2023. Documentary Evidence 16. The Claimant produced, inter alia, payslips and NSSF documents to demonstrate the existence and duration of the employment relationship. The bundle contains several payslips issued by Cafesserie Limited in the Claimant's name over a number of years, showing basic salary, house allowance and statutory deductions. The Claimant also produced an NSSF contribution statement reecting contributions made over several years. I therefore nd that the existence of an employer-employee relationship between the parties is suciently proved. 17. A particularly important document in the Claimant's bundle is his handwritten letter dated 15th June 2023, addressed to Mr. Isaac Shpak. In that letter, the Claimant stated that he had been called by Shelly Nyangau during his o day on 8th May 2023 and instructed not to report to work until he received a further call. He further stated that he had worked for the Respondent since 17th July 2011 and requested clarication as to whether he had been terminated and, if so, the reason for the termination. This document creates a signicant discrepancy with the Statement of Claim and written submissions, which place the termination in May 2024. Claimant’s Submissions 18. The Claimant's written submissions identify three issues: Whether the Claimant was unfairly and/or unprocedurally terminated; Whether the Claimant proved his case on a balance of probability; and whether the Claimant is entitled to the reliefs sought. 19. The Claimant submits that his evidence remains uncontroverted because the Respondent failed to participate in the proceedings. He relies principally upon sections 35, 36, 45 and 51 of the Employment Act. He submits that termination occurred orally without notice and seeks one month's salary in lieu of notice together with salary for May 2024. 20. He also seeks a Certicate of Service and the maximum compensation of twelve months' salary, principally on account of the manner in which his employment was terminated and the absence of controverting evidence. Issues For Determination 21. From the pleadings, evidence and submissions, the issues arising for determination are: a. Whether the suit is statute-barred; b. Whether the Claimant proved that his employment was terminated by the Respondent; c. Whether the termination was substantively and procedurally fair; https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/843/eng@2026-08-27 3

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d. Whether the discrepancy concerning the date of termination is fatal to the claim; and e. Whether the Claimant is entitled to the reliefs sought. Whether the claim is statute-barred 22. Although neither party raised limitation, jurisdictional and statutory limitation questions may be considered by the Court where they arise from the material on record. Section 90 of the Employment Act prescribes a limitation period of three years for causes of action founded upon the Act. 23. The Claimant led the present suit in May 2025. If the termination occurred in May 2024, as pleaded, the action was plainly brought within three years. Even if, as the contemporaneous letter and supporting witnesses suggest, the actual separation occurred on or about 8th May 2023, the action instituted in May 2025 was still brought within the three-year statutory period. Accordingly, whichever of the two dates is taken, the claim is not statute-barred. Whether termination of employment was proved 24. The next question is whether the Claimant established that his employment was in fact brought to an end by the Respondent. The evidence does not disclose a formal written termination letter. 25. Indeed, the Claimant's contemporaneous letter of 15th June 2023 was framed as a request for conrmation as to whether he had been terminated. Nevertheless, termination of an employment relationship need not invariably be communicated through a formal letter if the employer's conduct objectively demonstrates that the employee is no longer to be permitted to render services. 26. The Claimant testied that he was instructed not to report to work and was thereafter not recalled. His eorts to obtain clarication from management did not result in his resumption of work. 27. His evidence is corroborated to some extent by the handwritten letter prepared approximately a month after the material events. That letter demonstrates that he had in fact been excluded from work and had sought clarication from the Respondent. 28. The Respondent, despite service, placed no evidence before Court showing that the Claimant had absconded, resigned, abandoned employment, been suspended pending investigations, or otherwise ceased attending work of his own volition. 29. On the evidence available, I am satised on a balance of probabilities that the Respondent's instruction that the Claimant stay away from work, followed by its failure to recall him or clarify his status, eectively brought the employment relationship to an end. I therefore nd that termination by the Respondent has been suciently established. Whether the termination was fair Substantive fairness 30. Section 43(1) of the Employment Act places an obligation upon an employer, in a claim arising out of termination, to prove the reason or reasons for termination. Section 45(2) further provides that termination is unfair where the employer fails to prove that the reason was valid and fair and that the employment was terminated in accordance with a fair procedure. 31. In Walter Ogal Anuro v Teachers Service Commission [2013] eKLR, the Court stated that for termination to pass the fairness test, there must be both substantive justication and procedural fairness. In the present matter, no reason for termination was communicated to the Claimant. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/843/eng@2026-08-27 4

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32. The Claimant refers to having been informed of an "audit" concerning waiters, but there is no evidence identifying what the audit disclosed, what allegation, if any, was directed at the Claimant, or how any such matter constituted a valid reason for termination. 33. The Respondent led no defence and called no witness to place before Court the reason that caused it to terminate the employment relationship. Accordingly, no valid or fair reason for termination has been demonstrated. I therefore nd that the termination failed the test of substantive fairness. Procedural fairness 34. Section 41 of the Employment Act requires an employer, before terminating employment on grounds relating to misconduct, poor performance or physical incapacity, to explain to the employee the reason for which termination is contemplated and to hear and consider the employee's representations. 35. The requirement for a meaningful hearing before termination has been consistently armed by the superior courts. In Kenfreight (EA) Limited v Benson K. Nguti, the courts emphasised that an employer cannot avoid the procedural requirements imposed by the Employment Act merely by relying upon a contractual power to terminate employment. 36. In the present case there is no evidence that: the Claimant was informed of any specic accusation; he was issued with a notice to show cause; he was summoned to a disciplinary hearing; he was informed of his right to be accompanied by another employee or representative where applicable; his representations were sought or considered; or any written decision followed a disciplinary process. 37. The uncontested evidence is instead that he was telephoned on his o day and told not to return to work pending further communication, which communication did not materialise. I therefore nd that the termination failed the requirements of procedural fairness. The termination was consequently unfair within the meaning of sections 41, 43 and 45 of the Employment Act. The discrepancy concerning the year of termination 38. The Court cannot overlook the substantial discrepancy in the Claimant's own material. The Statement of Claim and submissions place the termination in May 2024. 39. However: the handwritten letter dated 15th June 2023 states that the relevant telephone call occurred on 8th May 2023; George Waweru Chege refers to termination in 2023; and Boniface Wahome Karuiki likewise refers to termination in 2023. The Claimant's written witness statement also states that the material call occurred on "8th May" and describes that date as a Monday. 40. The contemporaneous letter carries considerable evidential weight because it was generated close to the events complained of and long before institution of these proceedings. I therefore consider the reference to May 2024 in the pleading to be inconsistent with the Claimant's contemporaneous documentary evidence. 41. That discrepancy does not, however, defeat the existence of the employment relationship or the fact that the Claimant was directed to stay away from work and was not recalled. Neither does it render the action time-barred. It is nevertheless relevant when considering particular monetary prayers, especially the claim specically framed as May 2024 salary, and when exercising discretion on compensation. Reliefs 42. Declaration of unfair termination- Having found that the Respondent did not demonstrate any valid reason for termination and did not subject the Claimant to a fair disciplinary process, I nd that https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/843/eng@2026-08-27 5

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the Claimant's termination was substantively and procedurally unfair. A declaration to that eect is therefore merited. 43. One month's salary in lieu of notice- The Claimant seeks KShs. 18,240 as one month's salary in lieu of notice. Section 35 of the Employment Act requires notice before termination in circumstances falling within the provision, while section 36 permits termination without notice upon payment of the remuneration which would have been earned during the notice period. There is no evidence that the Claimant was given notice. The Respondent did not challenge the pleaded monthly rate of KShs. 18,240, and the Claimant also relied upon his wage documentation and applicable wage regulation in support of the sum claimed. I accordingly award the Claimant KShs. 18,240 being one month's salary in lieu of notice. 44. Salary for May- The Claimant seeks KShs. 18,240 described in the submissions as salary for May 2024. The diculty with this prayer is that the Claimant's own contemporaneous evidence points to the employment relationship having come to an end in May 2023, not May 2024. The handwritten letter dated 15th June 2023 demonstrates that by that date the Claimant was already complaining that he had been prevented from returning to work since 8th May 2023. The Court cannot therefore award salary for May 2024 when the Claimant's own contemporaneous evidence does not demonstrate that he was employed and rendering service in May 2024. Furthermore, no particular evidence was placed before Court showing work performed during May 2024 for which salary remained unpaid. The prayer for May 2024 salary is therefore declined. 45. Compensation for unfair termination- The Claimant seeks the maximum compensation equivalent to twelve months' salary, amounting to KShs. 218,880. An award under section 49(1)(c) of the Employment Act is discretionary and is subject to the factors set out in section 49(4). The maximum twelve-month award is not automatic merely because termination has been found unfair. In Kenfreight (E.A) Limited v Benson K. Nguti, the Court of Appeal cautioned that the discretion to award compensation must be exercised with reference to the statutory factors and that reasons should be given for the level of compensation selected. 46. In the present matter, I have considered the following factors: a. The Claimant had rendered a lengthy period of service of approximately twelve years; b. There is no evidence before Court of disciplinary infractions during that period; c. His employment was brought to an end abruptly; d. No valid reason for termination was proved; e. No disciplinary procedure was followed; f. No evidence has been placed before Court showing that the Claimant contributed to his termination; g. The Respondent did not participate in these proceedings to explain the termination; h. On the other hand, the Claimant did not lead substantive evidence concerning his attempts to obtain alternative employment, the period he remained unemployed, or the extent of the nancial loss owing from the termination; and i. The Claimant's evidence contains a material inconsistency concerning the year of termination, which the Court cannot disregard. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/843/eng@2026-08-27 6

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47. Balancing those considerations, I am not persuaded that the maximum award of twelve months' salary is justied. In my view, compensation equivalent to eight months' salary is fair and proportionate in the circumstances. At the pleaded monthly rate of KShs. 18,240, eight months' salary amounts to: KShs. 18,240 × 8 = KShs. 145,920. 48. Certicate of Service- Section 51 of the Employment Act requires an employer to issue an employee with a Certicate of Service upon termination, except in circumstances not applicable herein. Having served the Respondent for well over four consecutive weeks, the Claimant is entitled to a Certicate of Service. The Respondent shall therefore issue the Claimant with a Certicate of Service within thirty (30) days from the date of this Judgment. 49. Costs and interest- Costs follow the event unless the Court for good reason orders otherwise. The Claimant has substantially succeeded in the claim. I therefore award him the costs of the suit. The monetary award shall attract interest at court rates from the date of this Judgment until payment in full. 50. In the result, judgment is hereby entered in favour of the Claimant against the Respondent as follows: Item Award One month's salary in lieu of notice KShs. 18,240 Compensation equivalent to eight months' salary KShs. 145,920 Total monetary award KShs. 164,160 51. For the avoidance of doubt, I make the following nal orders: a. A declaration is hereby issued that the termination of the Claimant's employment by the Respondent was unfair and unlawful for want of substantive justication and procedural fairness. b. The Claimant is awarded KShs. 18,240 being one month's salary in lieu of notice. c. The Claimant is awarded KShs. 145,920 being compensation equivalent to eight months' salary for unfair termination. d. The claim for May 2024 salary of KShs. 18,240 is declined for want of sucient proof and in view of the material discrepancy concerning the actual year of termination. e. The Respondent shall issue the Claimant with a Certicate of Service within thirty (30) days. f. The total monetary award is therefore KShs. 164,160. g. The Claimant shall have the costs of the suit. h. The monetary award 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/2026/843/eng@2026-08-27 7

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