Njehia & 2 others v Naivas Limited (Cause 282 of 2017) [2025] KEELRC 633 (KLR)
The bottom line
#A Kenyan employment court ruled three cashiers were unfairly fired, holding employers must prove both valid reasons and a fair procedure when dismissing staff.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal of the 1st Claimant was procedurally and substantially fair
The termination was unfair both substantively and procedurally; the reason (refusal to serve a customer) was not valid or evidenced, and no hearing was accorded
Section 43 requires the employer to prove the reasons for termination, failing which the termination is unfair under section 45. The reason given in the termination letter (refusal to serve a customer) was unrebutted by evidence and therefore not valid. Section 41(1) requires notification of allegations and an opportunity to make representations; the 1st Claimant was never accorded a hearing before termination.
Whether the 2nd and 3rd Claimants absconded duty or were unfairly dismissed
Their terminations were substantively and procedurally unfair; the Respondent produced no evidence of attempts to contact them or of a disciplinary process
An employer alleging desertion must show it took reasonable steps to contact the employee and issued a show cause letter. The Respondent adduced no such evidence, nor did it comply with sections 41 and 43(1) of the Employment Act. The Claimants testified they were orally suspended, wrote letters enquiring about their status, and received no response; the defence of abscondment therefore failed.
Whether the claims were time barred
The claims were filed within three years of the dates of termination and were not time barred
The Respondent argued that the overtime and leave dues claims were statute barred. The court held that the claims were filed within the three-year limitation period under the Employment Act measured from termination, and therefore the limitation objection failed. The court then went on to limit leave dues to the three years preceding termination in quantifying awards.
Entitlement to the reliefs sought
Notice pay, salary for April 2012 and underpayments awarded to the 1st Claimant; notice pay and leave dues awarded to the 2nd and 3rd Claimants; service pay and overtime refused
Having found unfair termination, the court awarded one month's pay in lieu of notice to each Claimant and unpaid salary to the 1st Claimant. Leave dues were limited to the three years before termination. Service pay was refused because all three were NSSF members, and the overtime and underpayment claims failed for lack of proof. Underpayment was computed against the statutory minimum wage for cashiers.
Legal principles established
#- The burden of proof in termination of employment is on the employer, who must prove both valid reasons and a fair procedure
- Where an employer alleges desertion, it must produce evidence that reasonable steps were taken to contact the employee
- Dismissal on account of absconding must be preceded by evidence of reasonable attempts to contact the employee and a show cause letter
- Members of NSSF are not entitled to service pay
Court orders
#- 1.Judgment entered in favour of the Claimants against the Respondent: 1st Claimant awarded one month salary in lieu of notice Kshs. 18,525, salary for April 2012 Kshs. 18,525, and underpayments Kshs. 188,337.80
- 2.2nd Claimant awarded one month salary in lieu of notice Kshs. 44,770 and leave dues Kshs. 108,481.15
- 3.3rd Claimant awarded one month pay in lieu of notice Kshs. 42,349.50 and leave dues Kshs. 102,616.09
- 4.Claimants awarded costs
- 5.Interest at court rates from the date of judgment
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court over claims of unfair termination of employment under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njehia & 2 others v Naivas Limited (Cause 282 of 2017) [2025] KEELRC 633 (KLR)", Case Analysis (2025). Not stated in the judgment (Memorandum of Claim dated 22nd October 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/633/eng@2025-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.