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ELRCDismissedNot stated in the judgment (appeal from Nairobi MCELRC No. 1627 of 2019)

Assen & another v Khamunya (Employment and Labour Relations Appeal E135 of 2021) [2025] KEELRC 369 (KLR)

Employment and Labour Relations Court
12 February 2025
4,206 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenyan employers who sack workers without a disciplinary hearing and valid reasons must pay damages, even years later on appeal.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Nairobi against the judgment of Honourable E.M. Kagoni in Nairobi MCELRC No. 1627 of 2019, delivered on 7th July 2022, in which Julius Amayi Khamunywa (now Respondent) successfully claimed against Johaness Assen and Bonnie Wendy Joy (now Appellants) for unlawful and unfair termination. The Respondent, employed as a driver from May 2017 to July 2019 at Kshs. 18,000 per month, was handed a termination letter on 16th July 2019 citing drunkenness, theft of USD 100 and Kshs. 40,000, dishonesty and disrespect, without notice or a disciplinary hearing. The trial court awarded him approximately Kshs. 1,085,529 with costs and interest, including overtime, public holiday pay, notice pay and damages. The Appellants raised ten grounds challenging the finding of employment, unfair termination, the overtime computation, public holiday and leave findings, the damages award, and the calculations generally. The Respondent countered that the grounds were either abandoned, not raised at trial, or unsupported by evidence, noting the Appellants admitted employment and kept no records. Justice Hellen Wasilwa held that on a first appeal the court must re-evaluate the evidence afresh. She found the termination letter conclusively established the employment relationship, that no disciplinary hearing was conducted as required by section 41 of the Employment Act, and that termination without a fair hearing and valid reason is unfair under section 45(2). Finding the remedies legally sound, she affirmed the trial court's findings and dismissed the appeal with costs to the Respondent for both courts. Dated and delivered virtually at Nairobi on 12th February 2025.

Questions the Court framed

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

  1. 1.Whether the Respondent was employed by the Appellants
  2. 2.Whether the termination of the Respondent was lawful and procedurally fair
  3. 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

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01

Whether the Respondent was employed by the Appellants

Holding

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.

Reasoning

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.

p. 7
02

Whether the termination was unfair

Holding

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.

Reasoning

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.

p. 8
03

Whether the remedies awarded by the trial court were warranted

Holding

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.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed
  2. 2.The trial Court's findings and remedies are affirmed
  3. 3.Costs to the Respondent for both the lower Court and this Court

The bench

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

majority

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

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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

p. 8

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

p. 8

Costs

Appeal dismissed with costs to the Respondents for both the lower Court and for this Court

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.

This being a 1st appeal to this court, this court is obligated to re-evaluate the evidence afresh and reach a determination.
p. 6Standard of hearing on first appeal
The letter was indeed a termination letter and you cannot terminate one who is not in your employment.
p. 7Existence of employment relationship
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
p. 8Procedural fairness before termination
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
p. 8Unfair termination under section 45(2)
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.
p. 8Final orders and costs

Issues in the judgment

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minor

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.

minor

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

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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, "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.