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ELRCPartially AllowedCause No E270 of 2021· [2025] KEELRC 931 (KLR)

Nzilu v Inter-Religious Council of Kenya & another (Cause E270 of 2021) [2025] KEELRC 931 (KLR)

Employment and Labour Relations Court
19 March 2025
6,070 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 ruled an employee's termination unfair, awarding her over KShs 4.9 million because her employer skipped basic fairness steps.

What this practically means

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Executive summary

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The Claimant, employed by the 1st Respondent from August 2011 and promoted over the years to Programs Manager, sued the 1st Respondent and its Director (2nd Respondent) alleging an unexplained reduction of her salary, compulsory unpaid leave, workplace violence and harassment, and unfair termination. The Respondents contended she served under annually renewable fixed-term contracts, was insubordinate, refused redeployment to Maralal, requested two months' unpaid leave and later absconded, so her contract lapsed on 31 December 2018. The Court framed four issues: the nature of the contract, how separation occurred, whether there was workplace harassment and breach of fair labour practices, and entitlement to reliefs. It held that after the initial fixed-term contract lapsed without written renewal, the employment morphed into a month-to-month contract terminable by one month's notice. The email of 12 February 2019 and the letter of 5 July 2019 enclosing final dues were overt acts of termination at the employer's initiative. No section 41 procedure was followed and no valid reason for the alleged desertion was proved, since the employer never attempted to contact the claimant, who had written seeking resumption of duty. The compulsory unpaid leave was oppressive, arbitrary and retaliatory, amounting to an unfair labour practice, and workplace violence and harassment were established, aggravated by the 2nd Respondent's silence and the Board's inaction. Service pay was refused due to NSSF deductions. The Court declared the termination unfair and awarded general damages of KShs. 350,000, seven months' compensation under section 49(1)(c) (KShs. 1,155,000), one month's notice pay, unpaid leave, compulsory-leave salary, deducted salary and unpaid salary for August 2018 to February 2019, with costs and interest.

Key legal issues

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01

Nature of the Claimant's contract at separation

Holding

The initial one-year fixed-term contract lapsed by effluxion of time; no renewal contracts were executed, so employment continued on a month-to-month basis terminable by one month's notice

Reasoning

The claimant was engaged under a one-year renewable contract effective 29 August 2011. She worked a further seven years after its lapse, but no written renewal was executed. Promotions did not convert her employment into permanent and pensionable terms. In the absence of renewal contracts, the law implies a month-to-month contract under section 35(1)(c) of the Employment Act, with the attendant statutory protections.

p. 7
02

How the separation occurred and whether termination was at the employer's initiative

Holding

The employer's email of 12 February 2019 and letter of 5 July 2019 were overt acts terminating employment at the employer's initiative; the effective date was 12 February 2019

Reasoning

The Respondents' account shifted between desertion and effluxion of time. Relying on Rebecca N. Nyangolo v Prashant Raval, the Court held that dismissal is ultimately caused by the employer through overt action. The 12 February 2019 email marking her absence as absconding and stating the contract had ended, and the final-dues cheque of 5 July 2019, signified termination by the employer.

p. 8
03

Procedural and substantive fairness of the termination

Holding

The termination was procedurally flawed under section 41 and substantively unjustified under sections 43 and 45; the desertion allegation failed because the employer never attempted to contact the claimant

Reasoning

Section 41 requires notice of grounds, a hearing and consideration of representations; none occurred. The employer bore the burden of proving valid and fair reasons. The claimant wrote seeking resumption of duty, showing willingness to serve, while the employer admitted it never reached out to her. Submissions on insubordination were irrelevant as that was not the ground advanced. The termination was therefore unfair under section 45.

p. 10
04

Workplace harassment and unfair labour practice

Holding

The compulsory unpaid leave, forced handover of tools and the 2nd Respondent's conduct amounted to workplace violence, harassment and an unfair labour practice

Reasoning

The compulsory two-month unpaid leave was not anchored on the HR policy, nor explained as investigatory or administrative, and followed the claimant's objection to her transfer; it was oppressive, arbitrary and retaliatory. The 2nd Respondent ignored her accusations and the Board failed to act, permitting the Court to infer the conduct complained of. Applying ILO Convention No. 190's definition, the acts were intended to cause psychological and economic harm.

p. 11
05

Reliefs

Holding

The Claimant was awarded a declaration of unfair termination, general damages, seven months' compensation under section 49(1)(c), notice pay, unpaid leave, unpaid compulsory-leave salary, deducted salary and unpaid salary for August 2018 to February 2019, with costs and interest

Reasoning

The Court exercised its discretion under section 49(1)(c), considering the oppressive and bad-faith conduct, length of service and total failure to conform to procedural and substantive fairness requirements. Salary deductions were evidenced by payslips and unchallenged. Service pay was refused because NSSF deductions appeared on her payslip under section 35 of the Act.

p. 12

Legal principles established

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  • Where an initial fixed-term contract lapses and no renewal contract is executed, continued employment is on a month-to-month contract terminable by notice under section 35(1)(c) of the Employment Act
  • An employer alleging desertion must show it made efforts to contact the employee and apprise them of the consequences of unauthorised absence
  • Suspension without pay is inappropriate and unlawful unless administrative and provided for by the employer's HR policy
  • Failure to report workplace violence or harassment to the police does not sanitise the violence or harassment

Court orders

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  1. 1.A declaration that the termination of the Claimant's employment was unfair
  2. 2.General damages for workplace violence and harassment, and breach of her right to fair labour practices, KShs. 350,000
  3. 3.Compensation under section 49(1)(c) of the Employment Act of seven months' gross salary, KShs. 1,155,000
  4. 4.One month's salary in lieu of notice, KShs. 165,000
  5. 5.Compensation for leave days earned but not taken, KShs. 154,687.50
  6. 6.Unpaid salary for the two months the Claimant was on compulsory leave, KShs. 330,000
  7. 7.Cumulative salary deducted during the period July 2016 - February 2019, KShs. 1,258,000
  8. 8.Unpaid salary for the months between August 2018 and February 2019, KShs. 1,555,000
  9. 9.Costs of the suit to the Claimant
  10. 10.Interest on the awarded sums at court rates from the date of filing the suit until full payment

Authorities

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Legislation

  • Employment Actsection 6
  • Employment Actsection 35(1)(c)
  • Employment Act, 2007sections 41, 43, 45, 45(2), 45(7), 47(5)
  • Employment Act, 2007section 49(1)(c)
  • Constitution of KenyaArticle 41

Cases cited (4)

  • Rebecca N. Nyangolo v Prashant Raval
    [2021] KEELRC 898 (KLR)
  • Schmahnn v Concept Communications Natal (Pty) Ltd
    [1997] 8 BLLR 1092 (LC)
  • Pius Isindu Machafu v Lavington Security Guards Limited
    [2017] eKLR
  • Kenfrieght (E.A) Ltd v Benson K. Nguti
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 35, 41, 43, 45, 47(5), 49(1)(c)) and Article 41 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nzilu v Inter-Religious Council of Kenya & another (Cause E270 of 2021) [2025] KEELRC 931 (KLR)", Case Analysis (2025). Cause No E270 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/931/eng@2025-03-19

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