Wekesa v Mombasa (Cause E015 of 2024) [2024] KEELRC 2295 (KLR)
The bottom line
#Kenya's Employment Court ruled that a school unfairly fired a doctor because it couldn't produce the workplace policies it said he broke.
What this practically means
#Executive summary
#Key legal issues
#Substantive justification for summary dismissal
The respondent failed to prove gross misconduct because the alleged breaches (safeguarding and use of the guest house) were not grounded in any policy document issued to the claimant; termination was unfair.
The court held that an employer may set its own terms under Section 12 of the Employment Act, but policies relied on in disciplinary action must be known and made available to the employee. The safeguarding policy testified to was never produced, and no policy regulated use of the guest house or who accompanies students to hospital. Reliance on such rules ad hoc falls outside Section 44 of the Employment Act and the contract.
Discrimination and risk allowance
The discrimination claim failed because the claimant's salary was negotiated and consolidated; no evidence showed discriminatory allocation of risk allowances.
While discrimination at work is prohibited under Section 5 of the Employment Act and the employer bears an evidential burden under Section 5(7), the claimant admitted his salary was negotiated, starting at Ksh.250,000 and rising to Ksh.262,500. This increase insulated the respondent from a claim for a risk allowance outside the agreed salary.
Defamation in employment
No defamation was established; the claimant gave general averments without linking publication to the respondent.
Applying Naqvi Syed Omar v Paramount Bank Limited, the court acknowledged employment-related defamation exists, but the claimant did not identify the students, security personnel or social media publishers, nor connect them to the respondent. Raising the fact of gross misconduct alone did not constitute actionable publication.
Remedies for unfair termination
The claimant was entitled to notice pay of Ksh.262,500 and compensation of six months' gross salary (Ksh.1,575,000/1,575,500) plus certificate of service.
Having worked under two years with a promising career, and having been punished for raising legitimate workplace misconduct under Section 46 of the Employment Act, the court found an award of six months' gross salary justified compensation. Notice pay followed from his last earnings, and a certificate of service is mandatory under Section 51.
Legal principles established
#- An employer bears the burden of justifying that the reasons for termination were valid and justified, and must rely on policy documents communicated to the employee; without such a policy, dismissal is unfair.
- Defamation in employment requires particulars of publication linked to the employer.
Court orders
#- 1.A declaration that the respondent terminated the claimant in his employment unfairly
- 2.Compensation awarded at ksh.1,575,500
- 3.Notice pay Ksh.262,500
- 4.Costs of the suit to the claimant
- 5.Certificate of service to issue
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim; no specific constitutional provision cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wekesa v Mombasa (Cause E015 of 2024) [2024] KEELRC 2295 (KLR)", Case Analysis (2024). Cause No E015 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2295/eng@2024-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.