Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in the judgment text provided· [2025] KEELRC 1183 (KLR)

Gitonga v Mariakani Cottage Hospital (Cause E503 of 2023) [2025] KEELRC 1183 (KLR)

Employment and Labour Relations Court
28 April 2025
787 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The Claimant, employed by the Respondent as an ambulance driver on a 3-year contract commencing 1st March 2018 and renewed for a further 3 years from 1st March 2021, was suspended on 12th September 2022 on allegations that he left the hospital in the Respondent's vehicle without permission. He claimed the suspension was a pretext to terminate his contract prematurely without paying his full salary, and pleaded arrears of salary, notice pay, compensation for unfair termination, service dues, costs and interest, totalling Kshs. 557,900. The Respondent was served but neither entered appearance nor filed a response; the claim proceeded undefended and was heard on 13th June 2024. The Claimant testified that he always signed a gate pass when driving the Respondent's vehicle, and that he was advised he would be recalled after suspension but never was. The Court, finding no pleadings, evidence or documents from the Respondent, had no reason to doubt the Claimant's case. It held that suspension, with no recall or further disciplinary process, was intended to be termination, and that the Respondent neither established a valid reason nor followed fair procedure under Sections 41, 43 and 45 of the Employment Act. The Court declared the termination unfair and unlawful and awarded arrears of salary and notice pay of Kshs. 345,400, gratuity of Kshs. 50,000 computed at 15 days' salary per completed year over 4 years, and compensation equivalent of 6 months' salary at Kshs. 150,000, totalling Kshs. 545,400, with costs to the Claimant and interest at court rate from the date of judgment until payment in full.

Key legal issues

#
01

Whether termination was unfair

Holding

Termination was unfair and unlawful; the Respondent neither established a valid reason nor followed fair procedure under Sections 41, 43 and 45 of the Employment Act.

Reasoning

The Claimant was suspended on 12th September 2022 on allegations of driving off in the Respondent's vehicle without permission, which he denied, showing gate passes as evidence of permission. He was never recalled, subjected to further disciplinary process, or formally dismissed. In an undefended claim, the Court found suspension was intended as termination, without valid reason or fair procedure.

p. 2
02

Entitlement to remedies

Holding

Claimant awarded salary arrears of Kshs. 345,400, gratuity of Kshs. 50,000 based on the contractual clause, and compensation equivalent of 6 months' salary at Kshs. 150,000.

Reasoning

Arrears and notice pay were proved at Kshs. 345,400. Gratuity was computed from the contractual clause of 15 days' salary per completed year over 4 years at Kshs. 25,000 monthly. Compensation of 6 months' salary was held reasonable given 4 years and 6 months of service, about 2 years to contract completion, and no contribution by the Claimant to the termination.

p. 2

Legal principles established

#
  • An employer must establish a valid reason and follow fair procedure in terminating employment under Sections 41, 43 and 45 of the Employment Act.
  • Suspension without recall or further disciplinary process may be treated by the employee as constructive of termination.
  • Where a Respondent files no pleadings, evidence or documents, the Court has no reason to doubt the uncontroverted claim of the Claimant.

Court orders

#
  1. 1.It is declared that termination was unfair and unlawful.
  2. 2.The Respondent shall pay to the Claimant arrears of salary at Kshs. 345,400; gratuity at Kshs. 50,000; and compensation for unfair termination equivalent of 6 months' salary at Kshs. 150,000 – total Kshs. 545,400.
  3. 3.Costs to the Claimant.
  4. 4.Interest allowed at court rate from the date of Judgment, till payment is made in full.
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, Sections 41, 43 and 45 applied)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Gitonga v Mariakani Cottage Hospital (Cause E503 of 2023) [2025] KEELRC 1183 (KLR)", Case Analysis (2025). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1183/eng@2025-04-28

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