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ELRCPartially AllowedCause No E859 of 2021· [2025] KEELRC 432 (KLR)

Ndung’u v African Mission Health Care (K) (Cause E859 of 2021) [2025] KEELRC 432 (KLR)

Employment and Labour Relations Court
18 February 2025
7,241 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a Finance Manager's dismissal was fair in substance but unfair in procedure, awarding three months' salary.

What this practically means

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Executive summary

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The claimant, the respondent's first Finance Manager from June 2013 until 5th October 2020, sued alleging unfair termination. He asserted the dismissal was a witch-hunt orchestrated by his supervisor, that the disciplinary process was flawed, and sought declarations, twelve months' compensation, notice pay, overtime, costs and interest. The respondent maintained that the termination was substantively and procedurally fair, that seven allegations of misconduct were established, and that the claimant signed a discharge voucher after receiving terminal dues. The court found that the respondent had a substantively fair reason for termination: on a balance of probabilities, the allegations touching on insubordination, dishonesty, leadership, integrity and teamwork were made out, and the claimant's allegations of bias and victimisation were unsupported by evidence. However, the procedure was unfair: the three days given to respond to the notice to show cause, the four working days to prepare for a hearing on seven allegations (compounded by a hearing notice lacking venue, time and mode, and confusion over the hearing date), and the 48-hour appeal window were all unreasonably short and violated the claimant's right to be heard. The discharge voucher, though a binding contract, contained a disclaimer preserving further claims and did not state it was in full and final settlement. Judgment was entered for the claimant with a declaration of unfair termination, compensation of three months' gross salary (Kshs.452,336.40), and 50% of the costs. The constitutional declaration, notice pay and overtime claims were dismissed.

Key legal issues

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01

Whether the respondent had a valid and fair reason to terminate the claimant's employment

Holding

Yes - the respondent proved on a preponderance of probabilities that it had substantive and fair reason to terminate, applying Section 43(2) and the genuine-belief test

Reasoning

The court applied Section 45 and 43(2) of the Employment Act and the balance-of-probabilities standard from KRA v Reuwel Waithaka Gitahi, and the 'band of reasonable responses' test. The seven allegations touched on the claimant's role as Finance Manager, integrity and trust. The claimant gave general or no responses to several allegations. The witch-hunt and conflict-of-interest allegations were not evidenced. Substantive justification was therefore established.

p. 10
02

Whether the termination followed a fair procedure

Holding

No - the notice periods were unreasonably short (3 days to respond to the notice to show cause, 4 working days to prepare for the hearing, 48 hours to appeal), rendering the termination procedurally unfair under Sections 41 and 45(4) and (5)

Reasoning

While the notice to show cause, hearing and minutes existed and the committee's composition and the supervisor-as-accuser were not fatal, the court found the notice periods unreasonably short given the seven allegations and the complexity of records to be examined, the hearing notice lacked venue, time and mode, and the appeal window of 48 hours was patently too short, impacting the claimant's right to be heard.

p. 13
03

Whether the claimant waived his right to pursue other claims by signing the discharge voucher

Holding

No - the voucher did not state it was in full and final settlement and the claimant executed a disclaimer expressly preserving further claims

Reasoning

Applying Coastal Bottlers v Kimathi Mithika and related Court of Appeal decisions, a discharge voucher is binding if executed voluntarily with understanding of its import. Here the voucher acknowledged payment of specific dues, did not state full and final settlement, and contained a disclaimer that signing did not bar further claims. It therefore did not bar the instant suit.

p. 14
04

What reliefs flow from the finding of procedural unfairness

Holding

Declaration of unfair termination and three months' salary compensation under Section 49(1)(c); notice pay, overtime and the constitutional declaration refused

Reasoning

Compensation was scaled down to three months because the claimant served about 7 years, had no prior recorded misconduct and appealed, but his conduct substantially contributed to the termination. Notice pay failed because substantive justification existed; the overtime claim lacked particulars and the contract excluded overtime; the constitutional declaration lacked particulars.

p. 15

Legal principles established

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  • For a termination to pass the fairness test there must be both substantive justification and procedural fairness
  • The standard of proof in employment termination is on a balance of probability, not beyond reasonable doubt
  • Discharge vouchers and settlement agreements are binding contracts if executed voluntarily and with understanding of their import, but a voucher with a disclaimer barring further claims does not defeat subsequent claims
  • Procedural tenets in Section 41 of the Employment Act are mandatory and non-compliance renders termination procedurally unfair
  • Short notice to respond to allegations and prepare for a disciplinary hearing, and inadequate time to appeal, render the process procedurally unfair

Court orders

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  1. 1.Declaration that termination of the claimant's employment by the respondent was unfair
  2. 2.Equivalent of three (3) month's gross salary Kshs.452,336.40
  3. 3.The claimant is awarded 50% of the costs

Authorities

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Legislation

  • Employment ActSection 45
  • Employment ActSection 43(2)
  • Employment ActSection 44(4)(c) and (e)
  • Employment ActSection 41
  • Employment ActSection 45(4) and (5)
  • Employment ActSection 49(1)(c) and 49(4)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (11)

  • Kenya Revenue Authority V Reuwel Waithaka Gitahi & 2 Others
    [2019] eKLR
  • Kenya Revenue Authority V Menginya Salim Morgan
    [2010] eKLR
  • Shianzwi V Teachers Service Commission
    [2024] KEELRC 1965 (KLR)
  • Galgalo Jarro Jillo V Agricultural Finance Corporation
    [2021] eKLR
  • Walter Ogal Anuro V Teachers Service Commission
    [2013] eKLR
  • Naima Khamis V Oxford University Press EA Ltd
    [2017] eKLR
  • Pius Machafu Isindu V Lavington Security Guards Ltd
    [2017] eKLR
  • Thomas De La Rue (K) Ltd V David Opondo Omutelema
    [2016] eKLR
  • Trinity Prime Investment Ltd V Lion of Kenya Insurance Co. Ltd
    [2015] eKLR
  • Coastal Bottlers Ltd V Kimathi Mithika
    [2018] eKLR
  • British Leyland (UK) Ltd V Swift
    [1981] I.R.L.R 91
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment dispute)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ndung’u v African Mission Health Care (K) (Cause E859 of 2021) [2025] KEELRC 432 (KLR)", Case Analysis (2025). Cause No E859 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/432/eng@2025-02-18

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