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Court of AppealDismissedMemorandum of Appeal dated 27th November 2019

Ratemo & 2 others v Dufourg (Civil Appeal 586 of 2019) [2025] KECA 1359 (KLR)

Court of Appeal of Kenya
25 July 2025
PKP. O. KiageJMJamila MohammedWKW. Korir
5,221 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed employers must give proper notice, charges, and a fair hearing before dismissal, even for difficult employees.

What this practically means

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Executive summary

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The Court of Appeal (Kiage, Mohammed and Korir, JJ.A) dismissed this first appeal against a judgment of M. Onyango, J. dated 4th February 2019, which had awarded a former Executive Director of FC Talanta (a foreign national) damages arising from the termination of his one-year employment contract. The appellants, the Club's Chairman, Secretary and Treasurer, contended that the claim was barred by section 45(3) of the Employment Act because the respondent had served only nine months, that the dismissal was procedurally sound, and that the Kshs. 1 million general damages for harassment were unsupported. The Court framed three issues: the applicability of section 45(3), whether the claim was established, and whether the appellate court should interfere with the awards. Holding that the claim, as pleaded, was one of wrongful dismissal founded on breach of contract rather than unfair termination, the Court held section 45(3) did not oust jurisdiction, aligning itself with Nation Media Group vs. Kilonzo and CMC Aviation vs. Mohammed Noor. On the merits, it agreed with the trial Judge that the disciplinary process breached section 41: the hearing notice came hours before the hearing, did not set out the charges, and did not inform the respondent of his right to be accompanied. Applying the United India Insurance test for interfering with discretionary awards, the Court found the Judge had explained each award and detected no fault; the Kshs. 1 million was for uncontroverted harassment, assault and threatened deportation at the appellants' behest. The appeal was dismissed in its entirety with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the claim was barred by section 45(3) of the Employment Act
  2. 2.If not, whether the respondent established his claim against the appellants
  3. 3.Whether the appellants established a case for the Court's interference with the awards made by the trial court

Key legal issues

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01

Whether section 45(3) of the Employment Act barred the respondent's claim

Holding

No. The claim, as pleaded, was one of wrongful dismissal founded on the contract, not unfair termination under section 45; section 45(3) only bars claims of unfair termination by employees with less than 13 months' service.

Reasoning

The Court distinguished unfair termination (breach of statute) from wrongful dismissal (breach of contract), drawing on Nation Media Group vs. Kilonzo and CMC Aviation vs. Mohammed Noor. It held that examining the memorandum of claim shows the claim concerned notice and breach of the contract of 21st January 2013. Parliament could not have intended to deny every wrong a remedy; the maxims ubi jus ibi remedium and equity's refusal to suffer a wrong without remedy support this reading.

p. 6
02

Whether the respondent's dismissal met the procedural fairness threshold of section 41 of the Employment Act

Holding

No. The hearing notice was issued hours before the hearing, did not set out the charges, and did not inform the respondent of his right to be accompanied, failing section 41.

Reasoning

The suspension letter did not require a response to the charges; the email summons arrived at 10.01 pm for a hearing the following afternoon, gave no indication of the charges, and did not tell the respondent he faced disciplinary proceedings. Following Postal Corporation of Kenya vs. Andrew K. Tanui, such a process is irregular and short of a fair one. Even an unpleasant employee is entitled to the statutory procedure.

p. 8
03

Whether the Court should interfere with the trial court's awards

Holding

No. The awards fell within the judge's discretion under section 49 of the Employment Act and none of the grounds for interference was established.

Reasoning

Applying the United India Insurance test, the Court found the learned Judge explained the purpose of each award: the return air ticket and pro-rated leave were contractual/statutory entitlements; salary was awarded because dismissal was communicated on 29th January 2014; the Kshs. 1 million was for uncontroverted harassment, assault and arrest, not wrongful dismissal; and pay in lieu of notice was correctly fixed at one month's salary.

p. 9

Legal principles established

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  • Section 45(3) of the Employment Act restricts claims of unfair termination to employees with over 13 months' continuous service, but a claim based on wrongful dismissal is not barred by that provision; courts must examine the pleadings to determine which claim is pleaded.
  • Unfair termination involves breach of statutory law while wrongful dismissal involves breach of the employment contract; for unfair termination the primary reference is to statute, whereas for wrongful dismissal it is the actual contract between the parties.
  • Whatever the reason for termination, an employee must be taken through the mandatory procedure in section 41 of the Employment Act, applicable to termination as well as summary dismissal.
  • The Court of Appeal may interfere with a discretionary award only on the established grounds: misdirection in law, misapprehension of facts, taking into account wrong considerations, failing to take account of relevant considerations, or a decision plainly wrong.

Court orders

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  1. 1.Appeal dismissed in its entirety
  2. 2.Respondent to have the costs of the appeal from the appellants

The bench

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One judgment of the whole court — no separate or dissenting opinions.

PK
majority
JM
majority
WK
majority
On appeal from
Employment and Labour Relations Court (learned Judge M. Onyango)
Not stated
Jurisdiction invoked
First appeal under rule 31(1)(a) of the Court of Appeal Rules

Relief refused

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Setting aside the award of Kshs. 1,000,000 general damages for harassment

The award was for harassment through assault and arrest at the behest of the 1st appellant, and did not fall within the parameters for appellate interference

p. 9

Impeaching the respondent's claim for want of jurisdiction under section 45(3) of the Employment Act

The claim was one of wrongful dismissal, not unfair termination, and section 45(3) only bars the latter

p. 6

Costs

As costs generally follow the event, the respondent shall have the costs of the appeal from the appellants.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

whereas section 45(3) of the Employment Act restricts a claim of “unfair termination” to those who have served for over 13 months, a claim based on “wrongful dismissal” is not disbarred by the provision.
p. 5Distinction between unfair termination and wrongful dismissal; jurisdiction
Unfair termination involves breach of statutory law. Where there is a fair reason for terminating an employee's service, but the employer does it in a procedure that does not conform with the provisions of a statute, that still amounts to unfair termination. On the other hand, wrongful dismissal involves breach of employment contract
p. 5Definitions adopted from CMC Aviation
Unpleasant a character as the respondent may have been, as gleaned from the record, he was entitled to be taken through the procedure provided by the law. He was not, and the learned Judge was therefore correct in finding in his favour.
p. 8Mandatory procedural fairness under section 41
Flowing from the foregoing, it follows that this appeal lacks merit and is for dismissal. We therefore dismiss the appeal in its entirety. As costs generally follow the event, the respondent shall have the costs of the appeal from the appellants.
p. 10Disposition and costs

Issues in the judgment

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minor

The judgment states the hearing notice email was 'sent by email at 10.01 pm on 21st October 2013 for a hearing to be held at 2.00 pm on 21st October 2013 (sic)' but later states the review was slated for 22nd October 2013 at 2.00 pm; the dates are inconsistent within the judgment (the trial court marked it 'sic').

minor

The judgment's opening narrative states the respondent was harassed on 26th October 2013, while the reproduced trial court determination refers to 29th January 2014 at 5.28 pm; the dates of the alleged assault are inconsistent.

minor

The case number of the appeal and of the decision appealed from are not stated in the judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ratemo & 2 others v Dufourg (Civil Appeal 586 of 2019) [2025] KECA 1359 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 27th November 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1359/eng@2025-07-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.