Onsarigo v Auditor General (Cause E674 of 2022) [2025] KEELRC 507 (KLR)
The bottom line
#Even when an employee clearly deserves dismissal, Kenyan employers must still follow a fair hearing process or the termination becomes unfair and compensable.
What this practically means
#Executive summary
#Key legal issues
#Whether there was a valid reason for termination
Yes - the claimant overstayed his 25-month unpaid study leave, failed to communicate his changed circumstances and never sought an extension, amounting to prolonged absence/desertion justifying dismissal.
The study leave granted on 26th August 2013 was for 25 months and expired around September 2015. The claimant's earliest written communication of his change of university and later health challenges was June 2015 and November 2016, and he never applied for extension of leave. The court therefore accepted the respondent's substantive justification for dismissal despite finding the process unfair.
Whether the termination followed fair procedure under sections 41 and 45 of the Employment Act
No - the claimant was dismissed without a hearing as envisaged under section 41, rendering the termination procedurally unfair.
After the claimant returned and sought reinstatement, the respondent dismissed him without affording him a hearing, explanation of reasons, or opportunity to be accompanied as required by section 41 of the Employment Act, 2007. Although valid reasons existed, unfairness speaks to process, and the failure to give any hearing offended section 45(2) on fair procedure.
What remedies flow from the unfair termination
One month's salary in lieu of notice, six months' salary as compensation for unfair termination, and terminal dues as per the employment contract, with costs and interest.
Having found the dismissal procedurally unfair despite valid reasons, the court exercised its discretion to award compensation equivalent to six months' gross salary rather than the twelve months sought, plus notice pay and contractual terminal dues, declining the claimant's broader heads of damages.
Legal principles established
#- A termination may be substantively justified yet procedurally unfair where the employee is not afforded a hearing under section 41 of the Employment Act.
- An employer who fails to adhere to the terms of a study leave as granted, and who does not communicate delays or seek an extension, gives the employer valid reason to dismiss for prolonged absence.
Court orders
#- 1.1 month's salary in lieu of notice of Kshs. 220,000/-
- 2.6 months' salary as compensation for the unfair termination, Kshs. 1,320,000/- (total with notice Kshs. 1,540,000/-)
- 3.Payment of the Claimant's terminal dues as per the employment contract
- 4.Respondent to pay costs of the suit plus interest at court rates with effect from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (admitted by the Respondent in its Statement of Defence)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Onsarigo v Auditor General (Cause E674 of 2022) [2025] KEELRC 507 (KLR)", Case Analysis (2025). ELRC Cause (Memorandum of Claim dated 14th September 2022; filed 23rd September 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/507/eng@2025-02-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.