Stubbs v Fourth Generation Capital Ltd (Cause E272 of 2023) [2025] KEELRC 1123 (KLR)
The bottom line
#Kenya's Employment Court in Nakuru awarded a former executive Kshs 2.8 million after his employer failed to prove its reasons for firing him.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant's Statement of Claim was unchallenged
- 2.Whether the Claimant gave contradictory evidence during his testimony
- 3.Whether the termination of the Claimant's employment was procedurally fair
- 4.Whether the termination was for valid and fair reasons (substantive fairness)
- 5.Whether the Claimant is deserving of the reliefs sought
- 6.Costs of the suit
Key legal issues
#Whether the Claimant's case was unchallenged given the Respondent led no evidence
The case was not one of formal proof; the Respondent cross-examined the Claimant, so the claim was not unchallenged despite the Respondent not calling evidence.
The Respondent chose not to lead evidence but actively cross-examined the Claimant to discredit him. Cross-examination is a form of challenge, so the claim could not be treated as uncontroverted or proved by formal proof. The Respondent's failure to adduce evidence instead meant it could not discharge the statutory burden of justifying the termination.
Procedural fairness of the disciplinary process and termination
The process was tainted because the Claimant, who was on leave abroad, was given barely 3 days to return and prepare, was not furnished with the complaint emails in advance, and was refused his chosen companion.
Sections 35(1) and 41 of the Employment Act require written notice of allegations and adequate time and facilities to respond. The Claimant was on leave in the UK when summoned, was told he would only see the complaints on return, and was denied his chosen companion (the General Counsel) owing to a conflict of interest. Although a colleague accompanied him and he attended two hearings, these defects rendered the process unfair.
Substantive fairness and validity of reasons for termination
The termination was not for valid or fair reasons because the Respondent failed to lead evidence to prove the allegations.
Sections 43 and 45 of the Employment Act place the burden of proving valid and fair reasons for termination on the employer. The Respondent did not lead any evidence at the hearing, so the alleged complaints from Harleys and EABL were never proved. The Court also noted the Claimant was on leave when the emails he allegedly failed to respond to were sent.
Reliefs: pay in lieu of notice and compensation
The Claimant was awarded 3 months' pay in lieu of notice per the contract, and compensation of one month's gross salary (Kshs 700,000/-) considering his roughly one year of service.
The contract provided for 3 months' notice or pay in lieu, which was allowed on the unfairness findings. For compensation under section 49, the Court considered the short length of service of about a year and the fact that pay in lieu of notice had already been awarded, and settled on the equivalent of one month's gross salary.
Legal principles established
#- Pleadings are not evidence; facts must be proved through testimony and documents, and a respondent who fails to lead evidence cannot claim the claimant's case was unchallenged
- Sections 35(1) and 41 of the Employment Act require the employer to inform the employee of contemplated disciplinary action and the allegations, and to allow the employee adequate time and facilities to make representations
- Under sections 43 and 45 of the Employment Act the employer bears the burden of proving the validity and fairness of the reasons for termination, and failure to lead evidence means the termination is not for valid or fair reasons
Court orders
#- 1.Declaration that the termination of the Claimant's employment was unfair
- 2.Award of pay in lieu of notice of Kshs 2,100,000/-
- 3.Award of compensation equivalent to one month's gross salary of Kshs 700,000/-
- 4.Total award of Kshs 2,800,000/- with interest at court rates from the date of judgment
- 5.Claimant to have costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination claim)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Pleadings are not evidence and the facts stated therein must be tested and proved through oral testimony and production of evidence in the form of documents if available.
Perhaps the Claimant was privy to the complaints from the two partners (a copy of the email from EABL was not produced in Court), but fair process demanded that the Respondent set out clearly the allegations it had against the Claimant and give him suficient time and facilities to defend himself.
The Respondent failed to lead evidence to discharge the burden placed on it by the above provisions of the law, and the Court concludes that the termination was not for valid or fair reasons.
The Court finds and declares that the termination of the Claimant's employment was unfair and he is awarded: i. Pay in lieu of notice Kshs 2,100,000/- ii. (ii) Compensation Kshs 700,000/- Total Kshs 2,800,000/-
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stubbs v Fourth Generation Capital Ltd (Cause E272 of 2023) [2025] KEELRC 1123 (KLR)", Case Analysis (2025). Not stated in the judgment (Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1123/eng@2025-04-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.