Nyabuti v Omwaka & another (Environment and Land Appeal 8 of 2019) [2025] KEELC 4195 (KLR)
The bottom line
#A Kenyan court ruled that firing a disabled worker without a hearing or termination letter was unfair, awarding him pay and costs.
What this practically means
#Executive summary
#Key legal issues
#Employment status of the claimant
The claimant was an employee of the respondent engaged as a part-time Sign Language Interpreter from January 2023 until his summary dismissal on 20 June 2023, established by testimonial, oral and documentary evidence
The claimant testified that he was recruited, worked, and was paid by the respondent; OWITs corroborated payments received from the respondent. The respondent did not tender any evidence to controvert these exhibits or the claimant's testimony, so the employment relationship was proved on a balance of probabilities.
Discrimination on ground of hearing disability
Not proved. The respondent deployed a sign language interpreter for the claimant and paid hospital visits, demonstrating accommodation rather than discrimination
Discrimination must be demonstrated, not merely alleged. The claimant conceded under cross-examination that the respondent paid for hospital visits and that he had a personal car assigned to him. The court found no demonstration of discrimination and declined damages for it.
Compliance with Section 41 of the Employment Act in the summary dismissal
The respondent did not comply; the claimant was not notified of the reasons for termination, not given an opportunity to be heard, not allowed presence of a fellow employee or shop floor union representative, and the Labour Officer was not notified
None of the mandatory steps under Section 41(1) and the proviso to Section 41(2) were carried out, as confirmed by the claimant's uncontroverted testimony under cross-examination. Failure to accord an employee a hearing vitiates the dismissal, rendering it unfair within Section 45 of the Act.
Termination on account of incapacity under Section 43 read with Section 45(2)
The respondent failed to demonstrate the grounds for the termination to the required standards, and the procedure adopted was not fair
While the production target for June 2023 was three videos, the claimant produced four. Although he was previously dismissed on 30 April 2023 and reinstated, the respondent did not establish that the dismissal met the substantive and procedural criteria for termination on incapacity grounds.
Issuance of a letter of termination
No termination letter was issued, contrary to Section 35 of the Employment Act
The claimant was employed pursuant to no written contract and never received a termination letter. Section 35(1) requires notice of termination; the respondent did not issue the statutorily compliant notice, entitling the claimant to payment in lieu of notice.
Legal principles established
#- Where the reason for termination is founded on the grounds of misconduct, incapacity or poor performance, the mandatory procedural requirements under Section 41 of the Employment Act must be complied with, including notification and a hearing in the presence of a fellow employee or shop floor union representative
- An employee must be issued with a written letter of termination of employment under Section 35 of the Employment Act
- Compensation under Section 49(1)(c) of the Employment Act is discretionary and may be for a period up to twelve months of gross salary depending on the circumstances
- An employer may terminate employment on the ground of physical incapacity where it establishes the criteria under Section 43 read with Section 45(2) of the Employment Act
- He who alleges must prove, and in claims for unfair termination the employee first proves the existence and termination of the contract, upon which the employer must justify the grounds and procedure
Court orders
#- 1.The respondent be and is hereby directed to pay the claimant compensation of equivalent to six (6) months' gross salary of Kshs. 135,000.00
- 2.The respondent be and is hereby directed to pay the claimant three (3) months' salary in lieu of notice of termination of employment at Kshs. 67,500.00
- 3.The respondent be and is hereby directed to pay the claimant one (1) month salary as leave travelling allowance for 2023 being Kshs. 22,500.00
- 4.The decretal amount be and is hereby subjected to statutory deductions
- 5.Interest on the above at court rates from the date of this judgement until payment in full
- 6.The respondent be and is hereby directed to pay costs of the claim
- Jurisdiction invoked
- Articles 162(2)(a) and 165(5)(b) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kipkirwa v Mele alias Kibet A Meli alias Kibet Mell (Enviromental and Land Originating Summons E017 of 2026) [2026] KEELC 5375 (KLR)[2026] KEELC 5375 (KLR)31 Aug 2026
Cite this brief
#Cite this brief
Caselaw, "Nyabuti v Omwaka & another (Environment and Land Appeal 8 of 2019) [2025] KEELC 4195 (KLR)", Case Analysis (2025). E027 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4195/eng@2025-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.