Gogni Rajope Construction Company Limited & 1 other v Cornel Otieno Omondi
The bottom line
#Kenya's Court of Appeal confirmed that even a fired employee with only six months' service can win an unfair termination claim if the employer skipped fair procedure.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was fair in procedure despite valid reasons
Although the 1st appellant proved valid and justifiable reasons for termination under section 43, the procedure was flawed: no proper hearing under section 41, unproved service of the show cause letter, and a termination letter with irreconcilable dates. Termination was therefore unfair under section 45(2)(c).
The court found the respondent's conduct amounted to gross misconduct, satisfying section 43. But reasons alone are insufficient: the impromptu 23rd July 2012 meeting was not the hearing contemplated by section 41; the show cause letter's service was unproved and its dates incoherent with the termination effective 24th July 2012; and no month's notice or payment in lieu was given. The trial court's finding was affirmed.
Whether section 45(3) of the Employment Act bars an employee with less than thirteen months' service from claiming unfair termination
Section 45(3) is inapplicable to defeat the claim: it is inconsistent with Articles 22, 24, 27 and 48 of the Constitution and was declared unconstitutional by the High Court in the Momanyi case; the Kenfreight reference to it was obiter dictum.
The appellants' reliance on Kenfreight failed because the reference to section 45(3) there was obiter, the point not having arisen. The court reasoned that the Employment Act is a reformist statute, that section 45(3) discriminates on the basis of period served, closing the doors of justice to deserving litigants, and is void to the extent of inconsistency under Article 2(4).
The award payable to the respondent
The trial court's award of Kshs. 1,222,146.42 (one month's salary in lieu of notice, salary for days worked in July 2012, leave allowance, and four months' salary for unfair termination) stands, the appeal having been dismissed.
The appellants conceded the notice pay, salary for days worked and leave allowance, but contested the Kshs. 800,000 compensation for unfair termination under section 45(3). Having found the termination procedurally unfair and section 45(3) inapplicable, the court saw no basis to interfere with the trial court's award.
Legal principles established
#- Valid reasons for termination alone are insufficient; an employer must also follow fair procedures under sections 41 and 45(2)(c) of the Employment Act, including proper notice and an opportunity to be heard.
- An impromptu, casual meeting does not satisfy the hearing requirement of section 41 of the Employment Act; proper notice is required to enable the employee to prepare a defence.
- Section 45(3) of the Employment Act, restricting unfair-termination claims to employees with thirteen months' continuous service, is inconsistent with the Constitution and affords employers no refuge.
- On a first appeal, the Court of Appeal must reconsider and re-evaluate the evidence and reach its own conclusions, while making allowance for the fact that it neither saw nor heard the witnesses.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the respondent
- On appeal from
- Employment and Labour Relations Court (claim originally filed at the defunct Industrial Court)
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal from the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gogni Rajope Construction Company Limited & 1 other v Cornel Otieno Omondi", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/161/eng@2025-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.