Ndung’u v Ministry of Agriculture, Livestock and Fisheries & 2 others (Cause 1285 of 2018) [2025] KEELRC 1148 (KLR)
The bottom line
#A Kenyan court ruled a worker's dismissal was justified for absenteeism but unfair because he wasn't heard with a colleague or union representative present.
What this practically means
#Executive summary
#Key legal issues
#Whether the reason for termination (absenteeism) was valid and fair under Section 43(1) and 45(2)(a) and (b) of the Employment Act
Yes - the Claimant breached his contract by being absent without express permission from his immediate supervisor at the 2nd Respondent programme, giving the employer a fair and valid reason.
The Claimant held approvals from the Principal Secretary and other government offices, but the letter of 10th November 2017 was not addressed to the 2nd Respondent. His own response of 7th December 2017 did not claim supervisor permission, and he admitted in his appeal that he travelled before obtaining a release letter. The supervisor who allegedly granted permission reported his absence, showing she was unaware of his whereabouts. His absence for about 35 days without programme approval amounted to absenteeism.
Whether the termination followed fair procedure under Section 45(2)(c) and Section 41 of the Employment Act
No - although the Claimant responded to a show cause letter, he was not afforded an opportunity to make representations in the presence of a fellow employee or shop floor union representative as Section 41 requires.
The show cause letter was issued and answered, and the matter was referred to the Project Steering Committee, which decided on termination. However, no evidence showed the Claimant was heard in the presence of a colleague or union representative. The Respondents' reliance on the Civil Service Code of Conduct Revised 2006, which makes no provision for an oral hearing, cannot displace Section 41; the Court of Appeal in Kenya Revenue Authority v Reuwel Waithaka Gitahi held such a code inconsistent with the statute and must give way.
Whether the Claimant's redeployment to the parent Ministry amounted to a demotion
No - the Claimant was on secondment to the 2nd Respondent, and redeployment back to the parent Ministry after termination was logical and not a demotion.
A letter dated 9th February 2017 from the Principal Secretary confirmed the Ministry of Public Service approved the Claimant's secondment to the 2nd Respondent for one year effective 1st September 2016. His assertion that he was not on secondment was therefore not factual, and redeployment was the natural consequence of the end of the secondment regardless of the reason.
What relief flows from a procedurally flawed but substantively justified termination
Nominal compensatory damages equivalent to one month's salary, because the termination was for a fair and valid reason and did not result in total loss of employment.
The Court found the termination valid in substance but procedurally unfair. Exercising discretion, it awarded nominal damages of one month's last salary, taking into account the length of the contractual engagement and that the termination did not cause total loss of employment. All other heads of relief were declined.
Legal principles established
#- A code of conduct that does not require the presence of another employee or shop floor representative at disciplinary proceedings is inconsistent with Section 41 of the Employment Act and must give way to the statute
- An employee seconded to a programme must obtain express approval from the programme management to be absent, notwithstanding approvals from the parent Ministry
Court orders
#- 1.Award to the Claimant of Kshs 276,947/= being equivalent to one (1) month of his last salary as nominal compensatory damages for procedurally unfair termination
- 2.Each party to bear its own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (fair termination provisions, Sections 41, 43, 45)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndung’u v Ministry of Agriculture, Livestock and Fisheries & 2 others (Cause 1285 of 2018) [2025] KEELRC 1148 (KLR)", Case Analysis (2025). Employment and Labour Relations Court cause (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1148/eng@2025-04-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.