Standard Group Limited v Jenny Luesby [2018] KECA 353 (KLR)
The bottom line
#Kenya's Court of Appeal cut a media executive's Ksh.20 million award to about Ksh.4.6 million, confirming employers must hold a hearing before any dismissal, even for senior staff.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the summary dismissal of the respondent was unlawful, unprocedural and unjustified
- 2.If so, what reliefs is the respondent entitled to
- 3.Whether the compensation awarded exceeded the statutory cap of twelve months' gross salary
- 4.Whether general damages for emotional distress could be awarded in addition to compensation for unfair termination
- 5.Whether payments made to the respondent during the proceedings should have been deducted from the awards
Key legal issues
#Whether the summary dismissal was unlawful, unprocedural and unjustified
The termination was not wrongful but was procedurally unfair because the mandatory hearing under section 41 of the Employment Act was never granted; the HR Director admitted the appellant never notified the respondent of contemplated termination or called her for a hearing.
The court assessed the evidence as a first appeal, giving the appellant benefit of doubt on the alleged misconduct itself. However, section 41 requires the employer to explain the reasons and hear representations before termination, even for summary dismissal under section 44. No documentation or hearing existed; the seniority of the employee is no justification. Failure to hear the employee amounted to unfair termination under section 45.
Whether the Ksh.9 million compensation award was lawful
The award was excessive and set aside, substituted with Ksh.1,500,000 (equivalent of two months' salary).
Section 49(4) factors - length of service, employee's contribution to termination, expectation of continued employment - were not considered. The respondent had served one year and 18 days of a two-year fixed contract with only 11 months pending; an award exceeding the remaining contract period was wrong. She may have contributed to the termination; only procedural unfairness attached fully to the appellant.
Whether general damages for emotional distress are available in addition to statutory compensation
Such damages are available where a constitutional breach within the employment contract is pleaded and proved, but the award here was reduced to Ksh.100,000 nominal damages for the withholding of terminal dues.
Sonye v Siaya Teachers Sacco, resting on Addis v Gramaphone, predates the 2010 Constitution and the Employment Act and is of doubtful authority. The ELRC has jurisdiction under Article 162(2) and section 12 of ELRCA to award damages beyond unfair-termination compensation. However, the trial court exaggerated the distress; only the failure to settle terminal dues timeously caused compensable anxiety.
Whether amounts paid to the respondent during proceedings should be deducted
Yes - Ksh.552,000 (less pro rata tax) covering salary and leave due awarded doubly was to be deducted from the final decree.
The payment of Ksh.452,730 included salary due and leave due, which had also been awarded by the trial court, amounting to double payment. Those heads, less pro rata tax, were deductible from the decree.
Burden of proof in dismissal disputes
The employee proves that dismissal occurred; the employer bears the burden of justifying the grounds and proving fair procedure.
Section 47(5) of the Employment Act allocates the burden: the employee must show unfair termination or wrongful dismissal occurred, while the employer must justify the grounds and demonstrate that termination followed fair procedure. The appellant failed to discharge this burden because no hearing or notice was given and no records of the alleged misconduct were kept as required by section 74(1).
Legal principles established
#- Compliance with the hearing procedure in section 41 of the Employment Act is mandatory before any termination, including summary dismissal for gross misconduct, regardless of the seniority of the employee.
- An employer bears the burden of justifying the grounds of termination and of proving that termination followed fair procedure.
- Where an employer has a fair reason but terminates without conforming to statutory procedure, the termination is unfair; wrongful dismissal concerns breach of the employment contract.
- Judicial restraint must be exercised in exceeding the statutory cap of 12 months' salary in compensating employees; compensatory awards are not meant to punish the employer.
- The Sonye decision (which barred damages for distress in employment) is of doubtful authority post-2010 Constitution; an employee who pleads and proves breach of a constitutional right within the employment contract may be awarded reliefs over and above those for unlawful termination.
Court orders
#- 1.Declaration that although the termination may not have been wrongful, it was procedurally unfair
- 2.Compensation of Ksh.9 million set aside and substituted with Ksh.1,500,000
- 3.General damages of Ksh.8,250,000 set aside and substituted with a nominal award of Ksh.100,000
- 4.Award of notice pay of 3 months at Ksh.2,250,000 not disturbed
- 5.Award of salary due for 18 days worked at Ksh.403,977 not disturbed
- 6.Award of accrued 10 days of leave at Ksh.359,090 not disturbed
- 7.Order for issuance of certificate of service not disturbed
- 8.Sum of Ksh.552,000, less pro rata tax on that sum, deducted from the final decree
- 9.Each party to bear its own costs of the appeal; appellant to bear the costs of the suit before the lower court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Industrial Court of Kenya (now Employment & Labour Relations Court) at Nairobi
- Industrial Cause No. 137 of 2014
- Jurisdiction invoked
- First appeal under Rule 29(1)(a) of the Court of Appeal Rules from the Employment & Labour Relations Court established under Article 162(2)(a) of the Constitution
Relief refused
#Restoration of the full Ksh.9 million compensation for unfair termination
The award exceeded the remaining contract period and ignored section 49(4) factors including the employee's contribution to the termination and length of service
General damages of Ksh.8,250,000 for emotional distress
The trial court took an exaggerated view of the tribulations undergone by the respondent; only the withholding of terminal dues justified any award
Finding that the dismissal was wrongful
The court was prepared to give the appellant the benefit of doubt on the alleged misconduct; only procedural unfairness was established
Costs
Each party shall bear its own costs of the appeal, but the appellant shall bear the costs of the suit before the lower court.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That hearing is as important as the law made it mandatory even in the worst case scenario where an employee grossly misconduct oneself.
It follows that the act of summarily dismissing the respondent without giving her an opportunity to be heard amounted to unfair termination as defined in section 45 of the Act.
judicial restraint must be exercised in exceeding the capping of 12 months' salary, in compensating Employees for the wrongful acts of their Employers.
in view of the express jurisdiction granted to the ELRC under Article 162 (2) of the Constitution as read with section 12 of the Act, the Sonye case (supra) is of doubtful authority.
(i) Each party shall bear its own costs of the appeal, but the appellant shall bear the costs of the suit before the lower court.
(b) We find and hold that the damages awarded in compensation for unfair termination in the sum of Ksh.9 million is excessive. The award is set aside and substituted with an award of Ksh.1,500,000.
Issues in the judgment
#The judgment's summary of the payment breakdown does not reconcile arithmetically: the listed items total Ksh.662,000 before deductions, but the net figure given is Ksh.452,730 and the court then uses Ksh.552,000 as the amount deducted from the decree.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (6)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ethics and Anti-Corruption Commission & another v Aboo[2026] KESC 44 (KLR)19 Jun 2026
- Okallo v Kenya Medical Research Institute & another (Cause 558 of 2019) [2025] KEELRC 2343 (KLR)[2025] KEELRC 2343 (KLR)30 Jul 2025
- Mangoli v Kenya Medical Research Institute & another (Cause 559 of 2019) [2025] KEELRC 2342 (KLR)[2025] KEELRC 2342 (KLR)30 Jul 2025
- Masire v Kenya Power & Lighting Company Limited (Cause 62 of 2022) [2025] KEELRC 2189 (KLR)[2025] KEELRC 2189 (KLR)24 Jul 2025applied
- Monda v Aga Khan University (Cause E152 of 2023) [2025] KEELRC 632 (KLR)[2025] KEELRC 632 (KLR)4 Mar 2025
- Ndzai v Century Micro Finance Bank Ltd (Employment and Labour Relations Cause 383 of 2016) [2023] KEELRC 435 (KLR)[2023] KEELRC 435 (KLR)16 Feb 2023followed
Cite this brief
#Cite this brief
Caselaw, "Standard Group Limited v Jenny Luesby [2018] KECA 353 (KLR)", Case Analysis (2018). Civil Appeal No. 291 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/353/eng@2018-08-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.