Onyango v Africa International University (Employment and Labour Relations Cause E6570 of 2020) [2025] KEELRC 148 (KLR)
The bottom line
#A Kenyan employer cannot rely on a contract's notice clause to fire an employee without valid reasons and a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether termination by contractual notice without reasons was legitimate
Termination was unfair and unlawful; the notice clause did not relieve the employer of the duty to justify the termination and afford a hearing.
The court held that the pleasure doctrine and employment-at-will were abolished by the 2007 employment law regime. Section 35 of the Employment Act cannot be read in isolation; a holistic reading requires both notice and justification. Relying on the binding Kenfreight decision, where an identical argument was rejected, the court held that a notice clause does not excuse the employer from providing valid reasons and due process. Only mutual separation or effluxion of time permit termination without reasons.
Applicability of the Fair Administrative Action Act to private employment
The Act applies to non-state actors and private employment contracts; the termination violated sections 4 of the Act and Article 47 of the Constitution.
Section 3(c) of the FAA Act extends it to any person whose decision affects the legal rights of another. The termination affected the Claimant's legal rights and interests, so she was entitled to written reasons and to be heard before the decision. The Respondent afforded neither; hence the termination, though with notice, violated the law.
Whether the Covid-19 defence could sustain the termination
No - parties are bound by their pleadings; the Covid contention raised in oral testimony but not pleaded could not be relied upon.
The Respondent's witness blamed the Covid pandemic during oral testimony, but this ground appeared neither in the witness statement nor the Statement of Defence. The court held that parties cannot advance a cause or defence not pleaded, so the contention could not support the conclusion that reasons were provided for the termination.
Legal principles established
#- An employer can only terminate a contract of service with cause; a notice clause in the contract does not absolve the employer of the duty to give valid reasons and follow due process.
- The Fair Administrative Action Act applies to private contracts of employment, entitling an employee affected by a termination decision to written reasons and a hearing.
Court orders
#- 1.Declaration that the Respondent's decision to terminate the Claimant's contract of service was unfair and unlawful
- 2.Award of compensation equivalent to five months' gross salary, Ksh. 196,384.00 x 5 = Ksh. 981,920.00, subject to applicable statutory deductions
- 3.Interest on the amount awarded at court rates from the date of the decision
- 4.Costs of the case awarded to the Claimant
- 5.Respondent ordered to issue the Claimant with a Certificate of Service under section 51 of the Employment Act
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; ELRC Procedure Rules referenced)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Onyango v Africa International University (Employment and Labour Relations Cause E6570 of 2020) [2025] KEELRC 148 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/148/eng@2025-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.