Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedMemorandum of Claim dated 11th December 2023 (ELRC, Nairobi)· [2025] KEELRC 33 (KLR)

Manyara v Phoenix Aviation Limited (Cause E1034 of 2023) [2025] KEELRC 33 (KLR)

Employment and Labour Relations Court
17 January 2025
SRStella Rutto
5,142 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

#

A Kenyan court ruled a security manager's firing was unfair because the employer couldn't prove harassment allegations or give him a fair hearing.

What this practically means

#

Executive summary

#
The Claimant, employed by the Respondent as Security Manager from 28th August 2017, was suspended on 13th July 2023 following anonymous complaints of sexual harassment, bullying and intimidation by five fellow employees. After a Notice to Show Cause dated 2nd August 2023 and a disciplinary hearing at which his advocate was not allowed to participate, his employment was terminated on 23rd August 2023. He sued for a declaration of unfair termination, reinstatement, general and exemplary damages, and special damages of Kshs 16,225,000.00 being 59 months' salary. The Respondent maintained that it conducted a fair investigation, engaged an external investigator, anonymised the complainants to protect them, and complied with Section 41 of the Employment Act. The Court framed three issues: justifiable reason, procedural fairness, and reliefs. On the first, it found the Respondent produced no evidence - no complainant statements, no investigation report, no call logs - to substantiate the allegations, and therefore failed to discharge its burden under Sections 43(1) and 45(2) of the Employment Act. On procedure, the Court held that withholding the complainants' identities from the accused, failing to avail them for cross-examination, and handing over the investigation report only at the start of the hearing breached the rules of natural justice; a show-cause notice and hearing are not of themselves a fair hearing. The Court declared the termination unfair and unlawful and awarded compensatory damages of Kshs 1,925,000.00 (seven months' salary) with interest and costs to the Claimant. Reinstatement and the special damages sought were not granted.

Key legal issues

#
01

Justifiable reason for termination

Holding

The Respondent failed to prove a valid and fair reason for terminating the Claimant's employment on allegations of sexual harassment, bullying and intimidation

Reasoning

Under Sections 43(1) and 45(2)(a) and (b) of the Employment Act, the employer had to prove on a balance of probabilities that the Claimant engaged in sexual harassment, bullying and intimidation. The allegations appeared only in the Notice to Show Cause as third-party narration; no witness statements, complainant testimony, investigation report or call logs were exhibited. Although the Respondent could have availed corroborating evidence (call logs, external investigator's report), it failed to do so, discharging neither the evidential nor the legal burden.

p. 7
02

Procedural fairness of the disciplinary process

Holding

The disciplinary process breached Section 41 of the Employment Act and the rules of natural justice, rendering the termination procedurally unfair

Reasoning

The identities of the five anonymous complainants were withheld from the Claimant, making it impossible for him to prepare an effective defence; the complainants did not attend the disciplinary hearing to be cross-examined; and the investigation report was handed to the Claimant only at the start of the hearing, leaving no time to prepare. The Court held that compliance with Section 41 is not a box-ticking formality but must embody full particulars, access to evidence and the right to cross-examine.

p. 9
03

Entitlement to reliefs

Holding

The Claimant was entitled to a declaration of unfair termination and compensatory damages of seven months' salary, but not reinstatement or the special damages claimed

Reasoning

Having found both substantive and procedural unfairness, the Court awarded compensatory damages equivalent to seven months' salary, factoring in the length of the employment relationship and the circumstances of the termination. The quantum of Kshs 1,925,000.00 corresponds to seven months at the pleaded monthly rate of Kshs 275,000. Reinstatement, exemplary damages and the claimed Kshs 16,225,000.00 special damages were not granted.

p. 10

Legal principles established

#
  • An employer must prove the reasons for termination on a balance of probabilities under Sections 43(1) and 45(2) of the Employment Act, failing which the termination is unfair
  • Allegations of sexual harassment, like any other ground of termination, must be proved by evidence and cannot rest on mere assertion
  • In disciplinary proceedings, the accused employee must be informed of the identity of his accusers and be allowed to face and cross-examine them; confidentiality of complainants cannot extend to the accused
  • Furnishing an investigation report to an employee immediately before a disciplinary hearing does not satisfy the requirement of a fair hearing; a notice to show cause and a hearing are not of themselves a fair hearing

Court orders

#
  1. 1.A declaration that the termination of the Claimant from employment was unfair and unlawful
  2. 2.Compensatory damages of Kshs 1,925,000.00 being equivalent to seven (7) months of the Claimant's salary
  3. 3.Interest on the award at court rates from the date of Judgment until payment in full
  4. 4.The Claimant to have the costs of the suit

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Employment ActSection 41(1)
  • Employment ActSection 43(1)
  • Employment ActSection 45(2)(a),(b),(c)
  • Employment ActSection 6 (as referenced in the Njihia case quote)
  • Fair Administrative Action ActSection 4
  • Evidence ActSections 106 and 107
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (8)

  • Ol Pejeta Ranching Limited vs David Wanjau Muhoro
    [2017] eKLR
  • Hawkins Ouma vs Microfinance Bank Ltd
    [2023] eKLR
  • Postal Corporation of Kenya vs Andrew K Tanui
    (2019) eKLR
  • Rebecca Ann Maina & 2 others vs Jomo Kenyatta University of Agriculture and Technology
    (2014) eKLR
  • CFC Stanbic Bank Limited vs Danson Mwashako Mwakuwona
    (Civil Appeal No.3 of 2013) (2015) eKLR
  • Kenya Revenue Authority vs Menginya Salim Murgani
    (2010) eKLR
  • Ouma vs Faulu Microfinance Bank Limited
    (Cause E015 of 2022) [2023] KEELRC 2809 (KLR) (9 November 2023)
  • Njihia vs Mathare Youth Sports Association & another
    (Cause 1048 of 2018) [2024] KEELRC 1435 (KLR) (14 June 2024)
Jurisdiction invoked
Original employment and labour relations jurisdiction under Article 162(2) of the Constitution of Kenya, 2010 (Employment and Labour Relations Court Act)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Manyara v Phoenix Aviation Limited (Cause E1034 of 2023) [2025] KEELRC 33 (KLR)", Case Analysis (2025). Memorandum of Claim dated 11th December 2023 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/33/eng@2025-01-17

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