Assen & another v Khamunya (Employment and Labour Relations Appeal E135 of 2021) [2025] KEELRC 369 (KLR)
The bottom line
#Kenyan employers who sack workers without a disciplinary hearing and valid reasons must pay damages, even years later on appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Respondent was employed by the Appellants
- 2.Whether the termination of the Respondent was lawful and procedurally fair
- 3.Whether the remedies awarded by the trial court (overtime, public holiday pay, damages, notice pay and other dues) were warranted and properly calculated
Key legal issues
#Whether the Respondent was employed by the Appellants
The finding of employment was affirmed; the termination letter signed by the 1st Appellant and the Appellants' own submissions before the lower court admitting employment conclusively establish the relationship.
The court observed that a termination letter dated 16th July 2019 was penned by the 1st Appellant, and one cannot terminate a person who is not in his employment. Further, in submissions before the lower court the Appellants jointly admitted they had employed the Claimant and dismissed him in July 2019 after two years of service. The denial of employment on appeal was therefore disregarded as unmerited.
Whether the termination was unfair
The trial court's finding of unfair termination was merited and affirmed; no disciplinary hearing was held as required by section 41 of the Employment Act.
The letter of termination cited drunkenness, disorderly behaviour, theft, lack of transparency and disrespect, yet there was no indication the Respondent was subjected to any disciplinary hearing before dismissal. Under section 45(2) of the Employment Act, termination without a fair disciplinary hearing and valid reason is unfair, so the trial magistrate's determination was upheld.
Whether the remedies awarded by the trial court were warranted
The remedies were affirmed as based on sound legal reasoning; the Respondent was underpaid relative to the Regulation of Wages (General) Amendment Order 2018 and there was no evidence he was paid for holidays.
The court reviewed the trial court's analysis and found the Respondent's salary of Kshs. 18,000 fell below the prescribed wage of Kshs. 18,319.50, with underpayments each month. The Appellants' own witness (RW1) admitted no holiday pay was made. In the circumstances the court found no reason to vary the awards of notice pay, damages and other remedies and affirmed the trial court's findings.
Legal principles established
#- An employer must, before terminating employment on grounds of misconduct, explain the reasons to the employee and afford the employee an opportunity to be heard as provided under section 41 of the Employment Act.
- Any termination not supported by a fair disciplinary hearing and a valid reason constitutes unfair dismissal under section 45(2) of the Employment Act.
- In a first appeal, the appellate court is obliged to re-evaluate the evidence afresh and reach its own determination.
- A party cannot deny an employment relationship where a termination letter signed by that party shows the employee was in its employment.
Court orders
#- 1.The appeal is dismissed
- 2.The trial Court's findings and remedies are affirmed
- 3.Costs to the Respondent for both the lower Court and this Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (Employment and Labour Relations Court, Nairobi)
- Nairobi MCELRC No. 1627 of 2019 (Julius Amayi Khamunywa v Johaness Assen and Bonnie Wendy Joy)
- Jurisdiction invoked
- First appeal to the Employment and Labour Relations Court from the magistrates' court (MCELRC)
Relief refused
#The Appellants' prayer that the Respondent was lawfully terminated and not entitled to the reliefs granted by the lower court
The court found the termination unfair as no disciplinary hearing was conducted under section 41 of the Employment Act
The Appellants' challenge to the overtime award of Kshs. 1,085,529.60
The court found the trial court's remedies were based on sound legal reasoning
Costs
Appeal dismissed with costs to the Respondents for both the lower Court and for this Court
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This being a 1st appeal to this court, this court is obligated to re-evaluate the evidence afresh and reach a determination.
The letter was indeed a termination letter and you cannot terminate one who is not in your employment.
There is no indication that the respondent was subjected to any disciplinary hearing before the dismissal as provided for under section 41 of the Employment Act
under section 45(2) of the Employment Act 2007, any termination not backed with a fair disciplinary hearing and establishing of valid reason is an unfair dismissal
I therefore afirm the trial Court's findings and dismiss this appeal accordingly with costs to the respondents for both the lower Court and for this Court.
Issues in the judgment
#The judgment inconsistently dates the termination letter, stating '16/7/2017' in paragraph 21 while the facts and the quoted letter itself show 16 July 2019.
The case number of the appeal itself is never stated in the judgment; only the lower court case number (MCELRC No. 1627 of 2019) appears.
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.
- Zizi v Sifa Investment Limited (Cause E098 of 2023) [2025] KEELRC 972 (KLR)[2025] KEELRC 972 (KLR)27 Mar 2025applied
Cite this brief
#Cite this brief
Caselaw, "Assen & another v Khamunya (Employment and Labour Relations Appeal E135 of 2021) [2025] KEELRC 369 (KLR)", Case Analysis (2025). Not stated in the judgment (appeal from Nairobi MCELRC No. 1627 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/369/eng@2025-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.