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ELRCDismissedNot stated in the judgment· [2025] KEELRC 1188 (KLR)

Wang’ombe v Jomo Kenyatta Foundation (Cause E737 of 2022) [2025] KEELRC 1188 (KLR)

Employment and Labour Relations Court
28 April 2025
3,825 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 upheld an employee's dismissal for absconding and poor performance, confirming that unauthorised leave amounts to gross misconduct.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 2004 and last serving as a sales executive for the Central Rift Region, was dismissed effective 22nd December 2021 following a disciplinary process over poor performance, absconding and insubordination. She claimed unfair and unlawful termination, discrimination and sexual harassment, sought reinstatement or, alternatively, about Kshs. 12.3 million including 12 months' salary, Kshs. 10 million damages for discrimination, leave pay, refund of surcharges and notice pay. The Respondent maintained the dismissal was procedurally and substantively fair and counterclaimed Kshs. 165,273 for books not accounted for. The Court found the disciplinary procedure compliant with Section 41 of the Employment Act: show-cause letters, responses, a hearing before a disciplinary committee with the right to be accompanied, board approval and an unsuccessful appeal. On substantive fairness, the Claimant's cross-examination admissions - failure to meet targets from 2017 to 2020, placement on a PIP, warnings, proceeding on leave without approval, and absconding from 1st to 11th August 2021 - established valid reasons for termination under Sections 43 and 45. The sexual harassment and discrimination allegations were unsubstantiated. All prayers were declined, including reinstatement and the alternative monetary claims. The Counterclaim failed for lack of specific proof of the Kshs. 165,273 claimed. The Court declined the Claim and the Counterclaim and made no order on costs.

Key legal issues

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01

Procedural fairness of termination (Section 41)

Holding

Procedure was fair; no procedural flaws found

Reasoning

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.

p. 6
02

Substantive validity of the reason for termination (Sections 43 and 45)

Holding

Valid reasons existed - absconding, poor performance, insubordination and neglect of duty

Reasoning

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.

p. 7
03

Discrimination and sexual harassment

Holding

Not established; the allegations were unsubstantiated

Reasoning

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.

p. 7
04

The Counterclaim for Kshs. 165,273

Holding

Not proved; dismissed

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The Claim is declined
  2. 2.The Counterclaim is declined
  3. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.