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1. By a Memorandum of Claim dated 4th July 2024, the Claimant sued the Respondent seeking various reliefs cumulatively adding up to KShs. 1,551,044.
2. Satisfied that the summons to enter an appearance was properly served on the Respondent, this Court allowed the suit to proceed for formal proof. On 28th February 2025, the Claimant testified, adopted his witness statement filed herein as his evidence in chief, and produced the document he had placed on record as his documentary evidence.
3. The Claimant stated that on 10th November 2004, the Respondent employed him as a security officer. He served the Respondent diligently, with loyalty, dedication, and professionalism until 25th October 2023, when they terminated his employment without any justifiable reason.
4. He asserted that on 23rd October 2023, while having his meal at the Canteen, the Managing Director, one Ms. Sophia Abdulahi Chacha, approached him, claimed that he was drunk, an untrue claim. She asked him to write an apology and asked him to go home.
5. On 24 October 2023, he wrote a letter to the respondent''s management to inquire about the status of his employment. On 25 October 2023, he called and received a termination letter.
6. Contrary to the law, the Respondent didn’t afford him a hearing. They didn’t have a valid and fair reason for the summary dismissal against him.
7. The Claimant asserted that by reason of the premises, he is entitled to the following reliefs;
a. Three months’ salary in lieu of notice………………KShs. 54,714.
b. Pending public holidays for the period of 19 years…..KShs. 253,726.
c. Pending annual leave for a period of 19 years………….KShs. 539, 676.
d. Severance pay for the period of 19 years………………….KShs. 276,792.
e. Twelve months’ salary as compensation………………...KShs. 173,261.
f. Salary for October 2023………………………………………KShs. 15,781
Determination and Analysis
8. In a dispute regarding the termination of an employee’s employment, the Employment Act, under Section 47[5], places legal burdens on both the employee and the employer to discharge at various points of the proceedings. The initial burden lies on the employee, while the employer bears the evidential burden of rebuttal.
9. In Peter Otabong Ekisa vs The County Government of Busia, Cause No. 72 of 2017, the Court held;
“13. The standard of proof is set out under section 47[5] of the Act. In terms thereof, the employee shall adduce prima facie evidence that there was no valid reason to dismiss him from employment, and once that is done, the employer bears the burden of justifying the dismissal. In other words, the respondent bears the evidential burden of rebuttal. If the employer is unable to rebut the evidence by the Claimant, then the employee is said to have proven that there was no valid reason to dismiss him on a balance of probabilities.”
10. The Claimant’s employment was terminated via a letter dated 25th October 2023. Undoubtedly, the termination took effect on the same date. As such, the Claimant was summarily dismissed from employment. Considering his evidence, I am of the view that, prima facie, he was not accorded an opportunity to be heard, thus discharging his legal burden under the provision foretasted.
11. Elaborating on the legal burden on the employer, the Court of Appeal in the case Pius Machafu Isundu vs Lavington Security Guards Limited [2017] KECA 225 [eKLR], thus;
“There can be no doubt that the Act, which was enacted in 2007, places heavy legal obligations on the employer in matters of summary dismissal for breach of employment contract and unfair termination involving breach of statutory law. The employer must prove the reasons for termination/ dismissal [section 43]; prove the reasons are valid and fair [section 45]; prove that the grounds are justified [section 47[5], among other provisions. A mandatory and elaborate process is then set up under section 41, requiring notification and a hearing before termination. ……..”
12. Legal burdens are dischargeable by the production of sufficient evidence. Where the party is charged with the responsibility of discharging a legal burden, he has to adduce evidence to satisfy the burden, unless the Court takes judicial notice of the matter that he is supposed to prove, or there is an admission by the on the fact or matter, by the adversary.
13. The Respondent didn’t place forth any evidence to prove the reason for the summary dismissal against the Claimant, and that the reason was fair and valid. In the circumstances, they failed to discharge the legal burden under sections 43 and 45 of the Employment Act. As such, by dint of operation of the law [section 45], the termination was unfair.
14. The Claimant’s employment was terminable under Section 35 of the Employment Act, by twenty-eight days’ notice. Undeniably, this notice was not issued. Having found that the summary dismissal against him was unfair and wrongful, I hold that he is entitled to notice pay, one month’s salary in lieu of notice, KShs. 15,781. There can be no justification for awarding the Claimant’s three months’ salary in lieu of notice.
15. The Claimant further sought “pending public holidays for the period 19 years, pending house allowance for the period 19 years, and pending annual leave for the period of 19 years.” These reliefs are sought with great respect in an unintelligible manner. They are not factually supported in the body of the Statement of Claim or by the evidence adduced by the Claimant. I am not persuaded to grant them.
16. Section 49[1][c] of the Employment Act grants the Court the authority to award compensatory damages in a claim where it is demonstrated that the termination of an employee’s employment or summary dismissal was unfair. Nevertheless, it is pertinent to note that this authority is discretionary and exercised on a case-by-case basis.
17. I have considered how the Claimant’s employment was terminated, without adherence to the dictates of procedural and substantive fairness, the length of service by the Claimant, and that the Claimant did not contribute to the termination in any proven manner, and find that he is entitled to the compensatory relief, nine [9] months’ gross salary.
18. Service pay is a legal benefit under Section 35 of the Employment Act. In the absence of evidence that the Claimant was a member of NSSF or any of those schemes identified under the section, I have no reason to hold that he isn’t entitled to service pay.
19. In the upshot, Judgment is hereby entered in favour of the Claimant for;
I. A declaration that the summary dismissal against him was both procedurally and substantively unfair.
II. Compensation pursuant to the provisions of section 49[1][c] of the Employment Act, nine [9] months’ gross salary, KShs. 94,686.
III. One month’s salary in lieu of notice, KShs. 15,781.
IV. Service pay…………………………………..15,781x 15/30x19= KShs. 149,919.50
V. Costs of this suit.
VI. Interest on the awarded sums at court rates from the date of this Judgment till full payment.
Read, Signed, and Delivered this 30th Day of September, 2025.
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1. By a Memorandum of Claim dated 4th July 2024, the Claimant sued the Respondent seeking various reliefs cumulatively adding up to KShs. 1,551,044.
2. Satisfied that the summons to enter an appearance was properly served on the Respondent, this Court allowed the suit to proceed for formal proof. On 28th February 2025, the Claimant testified, adopted his witness statement filed herein as his evidence in chief, and produced the document he had placed on record as his documentary evidence.
3. The Claimant stated that on 10th November 2004, the Respondent employed him as a security officer. He served the Respondent diligently, with loyalty, dedication, and professionalism until 25th October 2023, when they terminated his employment without any justifiable reason.
4. He asserted that on 23rd October 2023, while having his meal at the Canteen, the Managing Director, one Ms. Sophia Abdulahi Chacha, approached him, claimed that he was drunk, an untrue claim. She asked him to write an apology and asked him to go home.
5. On 24 October 2023, he wrote a letter to the respondent''s management to inquire about the status of his employment. On 25 October 2023, he called and received a termination letter.
6. Contrary to the law, the Respondent didn’t afford him a hearing. They didn’t have a valid and fair reason for the summary dismissal against him.
7. The Claimant asserted that by reason of the premises, he is entitled to the following reliefs;
a. Three months’ salary in lieu of notice………………KShs. 54,714.
b. Pending public holidays for the period of 19 years…..KShs. 253,726.
c. Pending annual leave for a period of 19 years………….KShs. 539, 676.
d. Severance pay for the period of 19 years………………….KShs. 276,792.
e. Twelve months’ salary as compensation………………...KShs. 173,261.
f. Salary for October 2023………………………………………KShs. 15,781
Determination and Analysis
8. In a dispute regarding the termination of an employee’s employment, the Employment Act, under Section 47[5], places legal burdens on both the employee and the employer to discharge at various points of the proceedings. The initial burden lies on the employee, while the employer bears the evidential burden of rebuttal.
9. In Peter Otabong Ekisa vs The County Government of Busia, Cause No. 72 of 2017, the Court held;
“13. The standard of proof is set out under section 47[5] of the Act. In terms thereof, the employee shall adduce prima facie evidence that there was no valid reason to dismiss him from employment, and once that is done, the employer bears the burden of justifying the dismissal. In other words, the respondent bears the evidential burden of rebuttal. If the employer is unable to rebut the evidence by the Claimant, then the employee is said to have proven that there was no valid reason to dismiss him on a balance of probabilities.”
10. The Claimant’s employment was terminated via a letter dated 25th October 2023. Undoubtedly, the termination took effect on the same date. As such, the Claimant was summarily dismissed from employment. Considering his evidence, I am of the view that, prima facie, he was not accorded an opportunity to be heard, thus discharging his legal burden under the provision foretasted.
11. Elaborating on the legal burden on the employer, the Court of Appeal in the case Pius Machafu Isundu vs Lavington Security Guards Limited [2017] KECA 225 [eKLR], thus;
“There can be no doubt that the Act, which was enacted in 2007, places heavy legal obligations on the employer in matters of summary dismissal for breach of employment contract and unfair termination involving breach of statutory law. The employer must prove the reasons for termination/ dismissal [section 43]; prove the reasons are valid and fair [section 45]; prove that the grounds are justified [section 47[5], among other provisions. A mandatory and elaborate process is then set up under section 41, requiring notification and a hearing before termination. ……..”
12. Legal burdens are dischargeable by the production of sufficient evidence. Where the party is charged with the responsibility of discharging a legal burden, he has to adduce evidence to satisfy the burden, unless the Court takes judicial notice of the matter that he is supposed to prove, or there is an admission by the on the fact or matter, by the adversary.
13. The Respondent didn’t place forth any evidence to prove the reason for the summary dismissal against the Claimant, and that the reason was fair and valid. In the circumstances, they failed to discharge the legal burden under sections 43 and 45 of the Employment Act. As such, by dint of operation of the law [section 45], the termination was unfair.
14. The Claimant’s employment was terminable under Section 35 of the Employment Act, by twenty-eight days’ notice. Undeniably, this notice was not issued. Having found that the summary dismissal against him was unfair and wrongful, I hold that he is entitled to notice pay, one month’s salary in lieu of notice, KShs. 15,781. There can be no justification for awarding the Claimant’s three months’ salary in lieu of notice.
15. The Claimant further sought “pending public holidays for the period 19 years, pending house allowance for the period 19 years, and pending annual leave for the period of 19 years.” These reliefs are sought with great respect in an unintelligible manner. They are not factually supported in the body of the Statement of Claim or by the evidence adduced by the Claimant. I am not persuaded to grant them.
16. Section 49[1][c] of the Employment Act grants the Court the authority to award compensatory damages in a claim where it is demonstrated that the termination of an employee’s employment or summary dismissal was unfair. Nevertheless, it is pertinent to note that this authority is discretionary and exercised on a case-by-case basis.
17. I have considered how the Claimant’s employment was terminated, without adherence to the dictates of procedural and substantive fairness, the length of service by the Claimant, and that the Claimant did not contribute to the termination in any proven manner, and find that he is entitled to the compensatory relief, nine [9] months’ gross salary.
18. Service pay is a legal benefit under Section 35 of the Employment Act. In the absence of evidence that the Claimant was a member of NSSF or any of those schemes identified under the section, I have no reason to hold that he isn’t entitled to service pay.
19. In the upshot, Judgment is hereby entered in favour of the Claimant for;
I. A declaration that the summary dismissal against him was both procedurally and substantively unfair.
II. Compensation pursuant to the provisions of section 49[1][c] of the Employment Act, nine [9] months’ gross salary, KShs. 94,686.
III. One month’s salary in lieu of notice, KShs. 15,781.
IV. Service pay…………………………………..15,781x 15/30x19= KShs. 149,919.50
V. Costs of this suit.
VI. Interest on the awarded sums at court rates from the date of this Judgment till full payment.
Read, Signed, and Delivered this 30th Day of September, 2025.
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