Waweru v Optimise Outsourcing Limited (Cause E760 of 2023) [2025] KEELRC 1191 (KLR)
The bottom line
#A Kenyan court cut an unfairly dismissed accountant's compensation because he leaked confidential information, showing both fair process and good conduct matter.
What this practically means
#Executive summary
#Key legal issues
#Whether termination was procedurally fair under Sections 41 and 45 of the Employment Act
Procedure was unfair: the hearing notice was about 20 minutes, no agenda was given, charges were raised on the floor of the hearing, and the right to be accompanied was not observed
Although there was a recorded hearing, the statutory standards under Sections 41 and 45 were not met. The first meeting was a routine weekly meeting, not a show-cause meeting. The disciplinary hearing was convened with roughly 20 minutes' email notice, no agenda, and the lateness charge introduced at the hearing itself. The employer conceded it had no documentation of the right of appeal and did not share its HR Policy. Basic justice and equity under Section 45(4)(b) were not availed.
Whether termination was founded on a valid reason under Section 43
Yes - the Claimant breached the confidentiality clause by sharing confidential information with Kat, a former employee and unauthorized third party
The summary dismissal letter advanced one ground only: breach of the confidentiality clause. The Claimant conceded contacting Kat, a former Head of Finance, and discussing the Respondent's confidential information with her. Kat was no longer an employee and was therefore an unauthorized recipient. The Respondent was alerted to the leakage by Kat herself, giving it genuine reason to believe the breach occurred. Lateness allegations fell away as they were not part of the stated reasons.
Whether the relationship was employment or consultancy
The parties were in an employment relationship, notwithstanding the Respondent's characterization of a consultancy agreement
The Statement of Response repeatedly described the Claimant as a Consultant and the contract as a consultancy agreement, and the dismissal letter described his salary as a consultancy fee. However, the signed contract was clear that it was an employment contract entered into pursuant to the Employment Act, 2007. The terms and conditions of employment were uncontested.
Whether constitutional remedies were warranted
No - the violations are adequately remedied under the Employment Act and do not rise to constitutional violations
The Court held that the procedural failures against the Claimant, though unfair, were within the scope of the Employment Act and the contract. Adequate remedies exist under the Employment Act, so the prayers for declarations of constitutional violations under Articles 28, 41 and 47 and for constitutional damages were declined.
What remedies flow from the finding of procedural unfairness
3½ months' salary compensation (reduced for contribution), certificate of service, interest; notice pay, pro-rata leave, general damages for anguish and other relief refused; each party to bear own costs
The Claimant served 1 year and 2 months under an open-ended contract but contributed immensely to his termination by breaching the duty of trust and confidence, justifying a reduction to 3½ months' gross salary. Summary dismissal was justified on valid reason, excluding notice pay. The certificate of service issues under Section 51. Pro-rata leave and damages for anguish lacked evidential or legal support. Interest runs at court rate from judgment.
Legal principles established
#- Procedural fairness under Section 41 of the Employment Act requires adequate notice of the hearing, clear communication of charges in advance, and the right to be accompanied and to make representations
- Procedural fairness under Section 45(4)(b) requires the employer to act in accordance with justice and equity
- A reason justifying termination under Section 43 is a matter the employer genuinely believed to exist at the time of termination
- The effective date of termination is the date the employee receives the termination decision; termination cannot be retrospective
- Where an employee contributes to the termination, compensation for unfair termination is reduced accordingly
Court orders
#- 1.It is declared that termination was unfair, on account of procedure
- 2.The Respondent shall pay to the Claimant equivalent of 3½ months' salary in compensation for unfair termination at Kshs. 350,000
- 3.Certificate of Service to issue
- 4.No order on the costs
- 5.Interest allowed at court rate, from the date of Judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43, 45, 51) and Articles 28, 41 and 47 of the Constitution as pleaded
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waweru v Optimise Outsourcing Limited (Cause E760 of 2023) [2025] KEELRC 1191 (KLR)", Case Analysis (2025). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1191/eng@2025-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.