Nyakundi v Magnum Engineering & General Contractors (Cause E585 of 2023) [2025] KEELRC 911 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the termination was procedurally fair under Section 41 of the Employment Act
The termination was procedurally fair; the Claimant was issued a show cause letter, responded to it, and attended a disciplinary hearing with two representatives
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.
Whether the Respondent had a valid and fair reason for the termination
The reasons were fair and justified, rendering the dismissal substantively fair
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.
Entitlement to terminal dues despite a fair termination
Terminal dues such as notice pay and unutilized leave are payable irrespective of the manner of separation
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.
Legal principles established
#- 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
#- 1.A declaration that the Claimant's termination was fair and lawful
- 2.One month pay in lieu of notice at Kshs. 110,176/=
- 3.Pay for leave days not utilized at Kshs. 106,503.47/=
- 4.The Respondent will bear the costs of the suit plus interest from the date of this judgment until payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance claim for unfair termination)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.