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ELRCPartially AllowedNot stated in the judgment as provided

Ndoji v Questworks Limited (Cause 49 of 2020) [2023] KEELRC 2259 (KLR)

Employment and Labour Relations Court
29 September 2023
5,564 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded an engineer Kshs 1.425 million because his employer couldn't prove why it fired him, but rejected his bonus claim.

What this practically means

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Executive summary

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The claimant, employed as a project engineer from November 2014 at a salary that rose to Kshs 150,000, sued the respondent alleging abrupt termination in September 2019 without valid reason or procedure, coercion into signing a discharge voucher citing restructuring, and non-payment of dues including a claimed 4% finder's fee on three projects. The respondent denied the claim, asserting termination for absenteeism and poor performance after warnings and disciplinary hearings, and counterclaimed Kshs 158,000 for un-reconciled petty cash. The court framed four issues: fairness of reason and procedure, entitlement to finder's fee, reliefs, and the counterclaim. On substance, the respondent gave shifting reasons - absenteeism, poor performance, and restructuring - and failed to produce time sheets or proof of the alleged absences, discharging its evidentiary burden under sections 107/109 of the Evidence Act. On procedure, receipt of warning letters was unproven, no show cause letter was demonstrated, and the disciplinary hearing dates were internally inconsistent. Termination was held unfair both substantively and procedurally. The finder's fee claim failed: no legitimate expectation arose since only the claimant raised the issue and management communicated that finder's fees were for external consultants only. The court awarded 105 days' unpaid leave (Kshs 525,000), six months' salary as compensation (Kshs 900,000), costs, and a certificate of service, with interest and statutory deductions applicable. The counterclaim was disallowed as unproved special damages. Reinstatement was abandoned during hearing.

Questions the Court framed

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

  1. 1.Whether the termination of the claimant's service was fair in terms of reason and procedure followed
  2. 2.Whether the Claimant is entitled to a finder's fee
  3. 3.Whether the Claimant is entitled to the reliefs sought
  4. 4.Whether the Respondent is entitled to its counterclaim

Key legal issues

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01

Whether the reason for termination was fair and justified

Holding

Termination was not substantively justified; the respondent gave shifting reasons (absenteeism, poor performance, restructuring) and failed to prove absenteeism

Reasoning

The termination letter referenced restructuring, warnings referred to absence from work, and witnesses alleged absenteeism based on Facebook posts, but time sheets and complaints were not produced. Absenteeism is gross misconduct under section 44(4)(g), yet the evidentiary burden on the employer under sections 107/109 Evidence Act was not discharged. Poor performance claims also failed because clause 11 required a performance improvement plan after appraisal, which was not shown to have occurred.

p. 9
02

Whether the termination procedure was fair

Holding

Procedure was unfair; no show cause letter was demonstrated, receipt of warnings was unproven, and the disciplinary hearing invite was inconsistent

Reasoning

The respondent could not prove the claimant received the warning letters, which he denied. No show cause letter outlining charges was produced. The invitation to a hearing dated 14th September 2019 (a Saturday) for a hearing said to be Thursday 16th September 2019 (actually a Tuesday) was internally inconsistent. Section 41 of the Employment Act requires notification and hearing before termination, which was not satisfactorily demonstrated.

p. 9
03

Whether the claimant was entitled to a finder's fee

Holding

Not entitled; no legitimate expectation arose and evidence showed finder's fee was payable only to external consultants

Reasoning

The claimant's own emails were the only source of the finder's fee claim; his supervisor merely forwarded the requests to management, who communicated that the internal finder's fee was abolished in 2016 and that only consultants, not employees, were eligible. Applying the three-part legitimate expectation threshold, the claimant failed to show any practice or incident of employees being paid finder's fee, so no expectation arose.

p. 10
04

Whether the claimant was entitled to the reliefs sought

Holding

Reinstatement abandoned; awarded 105 leave days and six months' salary as compensation, plus certificate of service

Reasoning

The claimant worked about six years (2014-2019) and was involved in business, thus cushioned. Section 49 compensation of six months' salary was reasonable. Leave days were uncontested in substance because the respondent failed to produce records under section 74 of the Employment Act, leaving the claimant's 105 days unchallenged. A certificate of service was due under section 51.

p. 10
05

Whether the respondent was entitled to its counterclaim of Kshs 158,000/-

Holding

Counterclaim disallowed for lack of proof

Reasoning

The counterclaim was for special damages requiring strict proof. No formal demand was served before termination, the claimed figure shifted from about Kshs 273,000/287,000 to Kshs 158,000 without explanation, and the petty cash issue related to 2016-2018 yet was only raised at termination. The court found the claim unproved.

p. 11

Legal principles established

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  • For termination to be fair it must be both substantively justified and procedurally fair
  • The burden of proving the reason for termination, including absenteeism, lies on the employer under sections 107 and 109 of the Evidence Act
  • Where poor performance is the reason for termination, the employer bears a high level of proof and must show a policy or practice for measuring performance
  • An employer who keeps changing the stated reason for termination has no clear reason justifying dismissal
  • A counterclaim for special damages must be strictly proved
  • An employer who fails to produce employment records such as leave records under section 74 of the Employment Act cannot dispute the employee's claim

Court orders

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  1. 1.Unpaid leave days for 105 days @ 21 days pay per year (3.5 months) - Kshs 525,000/-
  2. 2.Six month's salary as compensation for unfair termination - Kshs 900,000/-
  3. 3.Total award of Kshs 1,425,000/-
  4. 4.Costs of the suit to the claimant
  5. 5.The respondent shall issue the claimant with a certificate of service
  6. 6.Items (i) and (ii) shall be subject to taxes and statutory deductions but shall earn interest at Court rates from the date of judgment until payment in full

The bench

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

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 44, 45, 47(5), 49, 51, 74, 90) and Evidence Act (sections 107, 109)

Relief refused

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Reinstatement to former position with back pay

The claimant abandoned this prayer during hearing

p. 10

Finder's fee at 4% of projects (KSMS, Kirubi and ICIPE)

No legitimate expectation arose; no practice of paying employees finder's fee was shown and management communicated that only consultants were entitled

p. 10

Declarations that termination was procedurally unfair, substantively unjustified and violated fair hearing/fair labour practices; damages for constitutional violation

Court framed issues as fairness of reason and procedure and awarded statutory compensation under section 49 instead; no separate constitutional damages awarded

p. 10

Severance pay at 15 days for each year worked (Kshs 375,000/-)

Not included in the final orders; the court awarded only leave days and six months' compensation

Respondent's counterclaim of Kshs 158,000/- for un-reconciled petty cash

Special damages not strictly proved; unexplained variation in amounts and unexplained delay in raising the claim

p. 11

Costs

Costs of the suit awarded to the claimant (listed in the concluding orders as 'Costs of the suit')

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.

From the foregoing the Court finds and holds that the termination of the claimant's service was unfair in terms of reason and procedure followed.
p. 10Finding of unfair termination
for termination to pass the fairness test, it must be shown that there was not only substantive justification for termination but also procedural fairness
p. 9Dual test for fair termination
no legitimate arose as the claimant failed to show any practice or incident where employees were paid finder's fee
p. 10Finder's fee / legitimate expectation
The Counterclaim is a special damaged which ought to be strictly proved.
p. 11Standard of proof for counterclaim
The Respondent did not produce any records as required of it under section 74 of the Employment Act to dispute that the Claimant claim for 105 leave days.
p. 10Employer's duty to keep and produce records
The respondent shall issue the claimant with a certificate of service
p. 11Final orders
Items (i) and (ii) shall be subject to taxes and statutory deductions but shall earn interest at Court rates from the date of this judgment until payment in full.
p. 11Final orders - interest and statutory deductions
Six month's salary as compensation for unfair termination………………………………….……… 900,000/-
p. 11Final orders - compensation award

Issues in the judgment

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minor

Inconsistent counterclaim figures within the judgment (Kshs 158,000 in pleadings, Kshs 273,000 in RW3's testimony, Kshs 287,000 in the court's analysis)

minor

Typographical/grammatical errors including an incomplete legitimate-expectation conclusion ('no legitimate arose')

minor

Respondent's counterclaim figure inconsistently rendered as 'Kshs 158, 0000/=' in the pleading summary

minor

Severance pay claimed in the alternative reliefs is not expressly addressed or refused in the determination

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Ndoji v Questworks Limited (Cause 49 of 2020) [2023] KEELRC 2259 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2259/eng@2023-09-29

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