Wang’ombe v Jomo Kenyatta Foundation (Cause E737 of 2022) [2025] KEELRC 1188 (KLR)
The bottom line
#A Kenyan court upheld an employee's dismissal for absconding and poor performance, confirming that unauthorised leave amounts to gross misconduct.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of termination (Section 41)
Procedure was fair; no procedural flaws found
The Claimant was issued a show-cause letter, responded, was invited to and appeared before a disciplinary committee, was advised of her right to be accompanied, was heard, and had a right of appeal which she exercised. The disciplinary process culminated in board approval of dismissal.
Substantive validity of the reason for termination (Sections 43 and 45)
Valid reasons existed - absconding, poor performance, insubordination and neglect of duty
The Claimant conceded on cross-examination that she missed targets from 2017 to 2020, was placed on PIP, received warnings, absconded duty and proceeded on leave without approval. Her poor performance predated Covid-19 and was compounded by absconding.
Discrimination and sexual harassment
Not established; the allegations were unsubstantiated
The Claimant's claim of sexual harassment was not supported by evidence of what Ogillo said or did. Her claim that others performed worse did not show discriminatory treatment, as the employer was entitled to assess employees individually.
The Counterclaim for Kshs. 165,273
Not proved; dismissed
The Respondent's witness did not entrust books to the Claimant and did not know her arrears. The claim required specific proof of the exact sum, and the Claimant's evidence of unreconciled accounts and returned books was more persuasive.
Legal principles established
#- Leave must be taken with the authorisation of the employer; unauthorised absence is gross misconduct
- Absence from work without leave or lawful cause is gross misconduct under Section 44(4)(a)
- An employer may discipline employees separately, and one employee's relatively better performance does not justify that employee's misconduct
- A specific monetary counterclaim requires specific proof
Court orders
#- 1.The Claim is declined
- 2.The Counterclaim is declined
- 3.No order on the costs
- Jurisdiction invoked
- First-instance employment and labour relations dispute under the Employment Act, Sections 28, 41, 43, 44(4)(a) and 45
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wang’ombe v Jomo Kenyatta Foundation (Cause E737 of 2022) [2025] KEELRC 1188 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1188/eng@2025-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.