Ndeti v Goken Hardware Limited & another (Cause E066 of 2024) [2025] KEELRC 417 (KLR)
The bottom line
#A Kenyan employer that sacks a worker without evidence of misconduct and without a hearing must pay over Kshs 1 million in damages and costs.
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 Claimant's termination from employment was fair and lawful
- 2.Whether the Claimant is entitled to the reliefs sought
Key legal issues
#Whether the Respondents proved a valid and fair reason for the termination
They did not; the allegations of poor attitude and late reporting were unsubstantiated by any evidence such as attendance records, so the termination was unfair for want of substance.
The termination letter cited 'attitude towards work and reporting late' but the Respondents did not elaborate on the alleged attitude or specify instances of lateness. No attendance or login records were produced. The burden under Sections 43 and 45(2)(a) and (b) lay on the employer, and mere allegations without corroborating evidence cannot discharge that evidential burden.
Whether the termination complied with fair procedure under Section 41
It did not; there was no evidence the Claimant was notified of the allegations or given an opportunity to respond in the presence of a fellow employee, rendering the termination procedurally unfair.
Section 45(2)(c) read with Section 41(1) requires notification of the grounds of termination and an opportunity to make representations in the presence of a fellow employee or shop floor union representative. The Respondents led no evidence of any such process. The court adopted the four elements from Postal Corporation of Kenya v Andrew K. Tanui and found none was met.
Entitlement to reliefs
One month's notice pay, eight months' compensatory damages and unpaid leave pay were awarded; service pay and house allowance were refused.
Notice pay and compensatory damages followed from the finding of unfair termination, taking account of the length of employment (about 17 years) and the failure of the Respondents to prove substantive and procedural fairness. Leave pay was awarded because the employer did not produce leave records as required under Section 74(1)(f). Service pay was excluded by NSSF membership and house allowance appeared in the pay slips.
Legal principles established
#- An employer bears the burden of proving both the substantive validity of the reason for termination and the fairness of the procedure followed, and failure to adduce evidence of the reason renders the termination unfair
- Compliance with Section 41 of the Employment Act is mandatory; absence of the notification and hearing process renders a termination procedurally unfair
Court orders
#- 1.A declaration that the termination of the Claimant's employment was unfair and unlawful
- 2.Award of Kshs 102,021.00 being one month's salary in lieu of notice
- 3.Award of Kshs 816,168.00 being compensatory damages equivalent to eight months of gross salary
- 4.Award of Kshs 178,536.75 being unpaid leave
- 5.Total award of Kshs 1,096,725.75
- 6.Interest on the total award at court rates from the date of Judgment until payment in full
- 7.The Claimant to have the costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction under the Employment Act (Court determining an employment claim in the first instance)
Relief refused
#Service pay/gratuity
Claimant was a registered NSSF member, falling within the statutory exclusions
House allowance
Pay slips showed house allowance was paid in addition to basic salary and the Claimant led no evidence to the contrary
Costs
The Claimant shall have the costs of the suit.
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.
It is against this background that I enter Judgment in favour of the Claimant as follows: a. A declaration that the termination of the Claimant's employment was unfair and unlawful.
The total award is Kshs 1,096,725.75. f. Interest on the amount in (e) at court rates from the date of Judgment until payment in full. g. The Claimant shall also have the costs of the suit.
The Respondents did not present any evidence to substantiate the allegations against the Claimant. What the 1st Respondent did was to merely prefer the allegations against the Claimant and leave it that.
It is imperative to underscore that the provisions of Section 41 of the Employment Act are mandatory hence it follows that anything short of that process, is unprocedural and unfair.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndeti v Goken Hardware Limited & another (Cause E066 of 2024) [2025] KEELRC 417 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/417/eng@2025-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.