Otulia v Menengai Oil Reneries Ltd & another (Cause 252 of 2023) [2026] KEMC 1009 (KLR) (6 October 2026) (Judgment) Neutral citation: [2026] KEMC 1009 (KLR) REPUBLIC OF KENYA IN THE NAKURU LAW COURTS CAUSE 252 OF 2023 PA NDEGE, SPM OCTOBER 6, 2026 BETWEEN PATRICK OUPAT OTULIA .................................................................... CLAIMANT AND MENENGAI OIL REFINERIES LTD ........................................... 1ST RESPONDENT HANDYMAN STAFFING SOLUTIONS LIMITED .................. 2ND RESPONDENT JUDGMENT 1. The Claimant instituted this claim vide a Memorandum of Claim dated 01/09/2023 suing the Respondents for unfair dismissal. He avers that he was initially employed by the 1st respondent on or around 15/07/2021 as an artisan grade II (Mechanic) at a daily wage of Kshs. 850/- payable on a weekly basis of Kshs. 5,100/- through his Equity bank account. That on or around 12/10/2021, the 1st respondent herein brought on board the 2nd respondent and purported to transfer the claimant’s employment to the 2nd respondent in an outsourcing arrangement that was done without any consultation with the claimant and which was similarly not explained to the claimant. That during the pendency of the employment, he would initially be supervised and take directions from the 1st respondent and thereafter upon the entry of the 2nd respondent, he would be supervised and would take instructions from both the respondents herein. That he would work from 8.00am to 5.00pm, with a one-hour lunch break in between. That his employment was continuous till 2007/2023 when he was unfairly and unlawfully terminated vide a termination of contract notice in lieu of notice letter dated 20/07/2023. 2. The respondents herein denied having employed the claimant as at the time of the termination, each shifting the blame on each other. The 1st Respondent thus seemed to have handed the Claimant over to the 2nd respondent as employer in a classic case of outsourcing Kenyan style. In the case of Wrigley Company (East Africa) Limited v Attorney General & 2 Others & Another [2013] eKLR Petition No. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/1009/eng@2026-10-06 1
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22 of 2012 the Court (Nduma, Ndolo, Nzioki JJ.) dened the parameters for a credible outsourcing program as follows: i. Ordinarily employers are not expected to outsource their core functions; ii. An employer will not be permitted to use outsourcing as a means to escape from meeting accrued contractual obligations to its employees; iii. An employer will not be permitted to transfer the services of its employees to an outsourcing agency without the express acceptance of each aected employee and in all such cases, the employer must settle all outstanding obligations to its employees before any outsourcing arrangement takes eect; and iv. Outsourcing is unlawful if its eect is to introduce discrimination between employees doing equal work in an enterprise. 3. The 1st Respondent did not demonstrate the adherence to the best practice and it seems the Claimant was unaware of his services being outsourced. The alleged outsourcing did not absolve the 1st Respondent from obligations to the Claimant. The act of outsourcing without securing the Claimant’s terms and conditions as agreed with the company to whom he was outsourced was tantamount to a termination. The 1st Respondent was bound to ensure that the Claimant was notied and paid his terminal dues at the time. The long and short of the foregoing is that an unlawful termination took place at the time of transfer and the 1st Respondent is liable for it. 4. Whereas the 1st respondent was liable for the unlawful and unfair termination that happened just before the clamant transited to the 2nd respondent, I do nd that the prayers that have bee made herein do not relate to that termination. They all relate to the termination that happened on 20.07.2023, which relate to the termination by the 2nd respondent. 5. The 1st respondent cannot be held liable for the termination that occurred on 20/07/2023, when the claimant was no longer its employee. Th contract that was terminated was a xed term contract. As to compensation, I shall award the claimant 11 months gross salary, which brings the award to Kshs. 253,550/-. I also award him unpaid wages of Kshs. 23,050 for 20 days worked in the month of July, 2023, calculated at Kshs. 17,730.80. One-month salary in lieu of notice of Kshs. 23,050/- was paid vide Dexh. No. 1 and is therefore not claimable herein. 6. The claimants allege underpayment based on the minimum wage orders. As was submitted for the respondents, it was not enough to merely plead the special damages but they had to be strictly proved and the court has looked for but failed to nd the evidence establishing the underpayment based on minimum wage orders. Whereas the evidence on record will show, on a balance of probability, that the claimant was employed by the respondents, the same could not establish the underpayment as prayed for. The prayer will fail. 7. As to leave pay, Dexh. No. 1 conrms that the claimant was paid for leave balance. It therefore proves on a balance of probabilities that the claimant was paid for leave balance and therefore on a balance of probabilities, the claimant has failed to prove that he is still owed some amount in relation to unpaid leave. The same applies to o days. 8. Judgment is therefore entered against the 2nd respondent and in favour of the claimant in the following terms: i. Compensation for unlawful dismissal – 11 months Kshs. 253,550 ii. Unpaid wages – Kshs. 17,730.80 https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/1009/eng@2026-10-06 2
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iii. Costs of the suit iv. Interest at Court rates. It is so ordered. DATED AND DELIVERED VIRTUALLY AT NAKURU THIS…06TH …. DAY OF…OCTOBER. 2026 ALOYCE-PETER-NDEGE SENIOR RINCIPAL MAGISTRATE In the presence of; Claimant’s Counsel: N/A 1st Respondent’s Counsel: N/A 2nd Respondent’s Counsel: N/A Claimant: N/A https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/1009/eng@2026-10-06 3
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