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ELRCPartially AllowedCause No E435 of 2020· [2025] KEELRC 928 (KLR)

Macharia v Cobra Security Co Ltd (Cause E435 of 2020) [2025] KEELRC 928 (KLR)

Employment and Labour Relations Court
21 March 2025
CBC. N. BAARI
1,621 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer that fires an employee without a hearing or stated grounds must pay compensation, even if the employment contract says otherwise.

What this practically means

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Executive summary

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The Claimant, employed as General Manager on 1st November 2018 and confirmed on 9th August 2019, sued for wrongful termination following a letter of 24th October 2019 issued after he resumed from forced annual leave. He sought a declaration of wrongful termination, general damages of Kshs. 3,300,000 (12 months' salary), a certificate of service and costs. The Respondent admitted the employment and termination but justified it on grounds of neglect of duty and poor performance, contending it followed contractual procedures and paid final dues; its preliminary objection had earlier been dismissed. The court framed a single issue: whether the Claimant was unfairly terminated. Applying the twin requirements of substantive justification and procedural fairness from Walter Ogal Anuro v Teachers Service Commission, the court found the Respondent admitted in cross-examination that no show-cause notice was issued and no disciplinary proceedings conducted, and that it never purported to comply with Sections 41, 43 and 45 of the Employment Act. The termination was therefore both procedurally and substantively unfair. On quantum, guided by Alphonce Maghanga Mwachanya v Operation 680 Limited and Section 49(4), the court held the Claimant contributed to his own termination, citing lost business opportunities and an extended probation, and awarded six months' salary of Kshs. 1,650,000 instead of the 12 months claimed. Judgment was entered with a declaration of unfair termination, compensation, and costs and interest against the Respondent. The claim for a certificate of service was not addressed.

Key legal issues

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01

Whether the termination was procedurally and substantively unfair

Holding

The termination was both procedurally and substantively unfair because no show-cause notice or disciplinary hearing was conducted and no valid grounds were notified.

Reasoning

The court applied the twin-test from Walter Ogal Anuro v Teachers Service Commission. The Respondent admitted on cross-examination that no notice to show cause was issued and no disciplinary proceedings were conducted. It relied solely on contractual termination procedures and did not purport to comply with Sections 41, 43 and 45 of the Employment Act. It also failed to notify the grounds for termination, defeating substantive justification.

p. 4
02

What compensation is appropriate for the unfair termination

Holding

Six months' salary (Kshs. 1,650,000) rather than the 12 months claimed, because the Claimant contributed to his own termination.

Reasoning

Guided by Alphonce Maghanga Mwachanya v Operation 680 Limited, the court considered the Section 49(4) factors. It noted lost business opportunities during the Claimant's tenure and the extension of his probation period as evidence of poor performance, concluding he contributed to his own termination, justifying a reduced award.

p. 4

Legal principles established

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  • For a termination to be fair there must be both substantive justification and procedural fairness under Sections 41, 43 and 45 of the Employment Act.
  • An employer who terminates without a hearing and without notifying grounds fails the fairness test even where the contract provides its own termination procedure.
  • In determining compensation the court considers the 13 factors set out under Section 49(4) of the Employment Act.

Court orders

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  1. 1.A declaration that the Claimant was unfairly terminated.
  2. 2.An order that the Respondent pays the Claimant 6 months' salary as compensation for the unfair termination at Kshs. 1,650,000/-
  3. 3.The Respondent shall bear the costs of the suit and interest until payment in full.

Authorities

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Legislation

  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45(7)
  • Employment Act, 2007Section 49(4)

Cases cited (3)

  • Barasa Paul Isaac V X For Security Solutions (Ke) L.T.D.
    [2015] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Alphonce Maghanga Mwachanya v Operation 680 Limited
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court original jurisdiction under the Employment Act, 2007

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, "Macharia v Cobra Security Co Ltd (Cause E435 of 2020) [2025] KEELRC 928 (KLR)", Case Analysis (2025). Cause No E435 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/928/eng@2025-03-21

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