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ELRCPartially AllowedCause No E585 of 2023· [2025] KEELRC 911 (KLR)

Nyakundi v Magnum Engineering & General Contractors (Cause E585 of 2023) [2025] KEELRC 911 (KLR)

Employment and Labour Relations Court
21 March 2025
2,535 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court upheld an HR Manager's dismissal as fair, but still ordered the employer to pay notice pay and unused leave dues plus costs.

What this practically means

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Executive summary

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The Claimant, engaged in May 2019 as a Human Resource Manager, sued the Respondent alleging unlawful termination in March/April 2023. He claimed that his invitation of a labour audit against the Respondent provoked his dismissal, and faulted the disciplinary process, including the fact that the show cause letter and hearing invitation were dated the same day. The Respondent maintained the dismissal was valid, citing insubordination, absence from duty without leave, and dishonesty about a court appearance. The court framed two issues: whether the termination was fair, and whether the Claimant was entitled to the reliefs sought. On procedure, the court held that the Claimant received a show cause letter, responded to it, and attended a disciplinary hearing with two representatives, satisfying Section 41 of the Employment Act; the same-day dating of letters did not offend the section. On substance, applying the burden under Section 47(5) and the range of reasonable responses test, the court held that an HR Manager inviting auditors against his own employer on matters within his docket was unreasonable and unjustified, and that the Claimant's absence from duty for over a week without leave justified dismissal. The termination was found procedurally and substantively fair. The declaration of illegality, 12 months' compensation and general damages failed; the April 2023 salary claim failed because a cheque was collected. The claim partly succeeded for one month's pay in lieu of notice (Kshs. 110,176) and unutilized leave (Kshs. 106,503.47), with costs and interest to the Claimant.

Key legal issues

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01

Whether the termination was procedurally fair under Section 41 of the Employment Act

Holding

The termination was procedurally fair; the Claimant was issued a show cause letter, responded to it, and attended a disciplinary hearing with two representatives

Reasoning

Section 41 requires the employer to inform the employee of the charges, allow preparation and hearing, and consider representations. The Claimant admitted receiving a show cause letter, responding to it, and appearing before the disciplinary committee accompanied by two representatives. Issuing the show cause and invitation letters on the same date did not violate Section 41. The court applied Chitavi and Philip Kimosop and found the requirements satisfied.

p. 4
02

Whether the Respondent had a valid and fair reason for the termination

Holding

The reasons were fair and justified, rendering the dismissal substantively fair

Reasoning

Under Sections 43, 45 and 47(5) the employer bears the burden of justifying termination. The HR Manager's act of inviting labour auditors against his own employer on matters within his docket was unreasonable and unjustified; he had nothing to show the employer's processes were illegal and had not reported malpractices to management. He was also absent from duty for over a week without official leave and his excuse of a court appearance was untrue.

p. 5
03

Entitlement to terminal dues despite a fair termination

Holding

Terminal dues such as notice pay and unutilized leave are payable irrespective of the manner of separation

Reasoning

Although the dismissal was fair, the Claimant was not issued a termination notice, so one month's pay in lieu of notice succeeded. Leave claims are terminal dues payable regardless of how employment ended, and the Respondent did not prove the unutilized leave days were paid. The April 2023 salary claim failed because a cheque of Kshs.108,334 was collected.

p. 6

Legal principles established

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  • Before terminating employment on grounds of misconduct, poor performance or incapacity, the employer must hear and consider the employee's representations in accordance with Section 41 of the Employment Act
  • The burden of proving unfair termination rests with the employee while the burden of justifying the grounds for termination rests with the employer
  • In assessing reasonableness of an employer's conduct, a tribunal applies the range of reasonable responses test and does not substitute its own views for those of the employer

Court orders

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  1. 1.A declaration that the Claimant's termination was fair and lawful
  2. 2.One month pay in lieu of notice at Kshs. 110,176/=
  3. 3.Pay for leave days not utilized at Kshs. 106,503.47/=
  4. 4.The Respondent will bear the costs of the suit plus interest from the date of this judgment until payment in full

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 41(2)
  • Employment ActSections 43, 45 and 47(5)
  • Employment ActSection 44(3) or (4)
  • Employment Act, 2007Section 41

Cases cited (3)

  • Philip Kimosop v Kingdom Bank Limited
    (2022) eKLR
  • Anthony Mkala Chitavi v. Malindi Water & Sewerage Company Ltd
    [2013] eKLR
  • Reuben Ikatwa & 17 others v Commanding Officer British Army Training Unit Kenya & another
    Nyeri Civil Appeal No.97 of 2016; [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance claim for unfair termination)

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, "Nyakundi v Magnum Engineering & General Contractors (Cause E585 of 2023) [2025] KEELRC 911 (KLR)", Case Analysis (2025). Cause No E585 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/911/eng@2025-03-21

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