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ELRCPartially AllowedCause No E084 of 2024· [2025] KEELRC 1290 (KLR)

Okoth v Water Bus Globology Limited (Cause E084 of 2024) [2025] KEELRC 1290 (KLR)

Employment and Labour Relations Court
7 May 2025
5,050 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 found an employer's dismissal unfair because it withheld the investigation report and charges from the employee before the disciplinary hearing.

What this practically means

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Executive summary

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The claimant, employed from May 2018 and rising to Operations Manager at a salary of Kshs.109,726, sued the respondent alleging unlawful and unfair termination of his employment on 16th July 2024, seeking a declaration of unfair termination, 12 months' salary as general damages, salary in lieu of notice, costs and interest. The respondent admitted the employment and the disciplinary process but contended that the termination was justified on grounds of gross misconduct, violation of company policies and insubordination, and that the claimant's dues, including one month's salary and severance of Kshs.315,219.23, were paid in full. The court found that the respondent had reasonable grounds to genuinely believe termination was justified, citing the unaccounted 100 litres of fuel, the disrepair of Asembo Bay landing site and the claimant's failure to deliver the fuel tender document, applying the genuine-belief standard under Section 43 of the Employment Act and the band of reasonable responses test. However, on procedure, the court held the process unfair: the claimant was suspended without disclosure of the allegations, denied a copy of the investigation report forming the basis of the charges, and the charges were not read out to him at the hearing. The termination was declared unfair and unlawful. The court declined salary in lieu of notice and awarded compensation equivalent to two months' gross salary (Kshs.219,452.00) under Section 49(1)(c), with 50% costs of the suit. Judgment was delivered virtually at Kisumu on 7th May 2025 by Dr. Jacob Gakeri, Judge.

Key legal issues

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01

Whether the respondent had justifiable reasons to terminate the claimant's employment

Holding

The court found the respondent had reasonable grounds to genuinely believe termination was justifiable, based on unexplained excess fuel, disrepair of Asembo Bay and the undelivered tender document

Reasoning

Applying Section 43(2) and the genuine-belief test, the court found the excess fuel utilization documented in the notice to show cause, the Asembo Bay disrepair and the outstanding tender document informed the respondent's genuine belief. The claimant failed to account for 100 litres of fuel, did not avail the tender document and left the insubordination charge unanswered, which could be construed as an admission.

p. 8
02

Whether the disciplinary procedure was fair

Holding

The procedure failed the fairness threshold because the claimant was denied the investigation report forming the basis of the suspension and the charges were not read out at the hearing

Reasoning

Relying on Postal Corporation of Kenya v Andrew K. Tanui and Ol Pejeta Ranching, the court held that the employer must supply the employee with the allegations and supporting documents to prepare a defence. The claimant was suspended 'pending investigations' without disclosure of the allegations, denied the investigation report he was accused on the basis of, and the minutes show charges were not read out to him. This vitiated the process under Section 41 and 45 of the Employment Act.

p. 10
03

What compensation was appropriate for the unfair termination

Holding

Compensation equivalent of 2 months' gross salary (Kshs.219,452.00) was fair under Section 49(1)(c)

Reasoning

The court weighed the respondent's justified reason for termination, the claimant's approximately 6 years of service, his failure to appeal or express a wish to remain in employment, the severance pay of Kshs.315,219.23 already received, and his prior disciplinary hearing and warning, concluding 2 months' gross salary was fair.

p. 10

Legal principles established

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  • The employer need only prove reasons it genuinely believed to exist at the time of termination, on a balance of probability
  • An employer must avail to the employee all documents and evidence relied upon in formulating the notice to show cause and used during the disciplinary hearing; failure vitiates the process
  • The reasonableness of dismissal is tested by the band of reasonable responses test

Court orders

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  1. 1.Declaration that termination of employment was unfair and unlawful
  2. 2.Equivalent of two (2) month's gross salary Kshs.219,452.00
  3. 3.50% costs of this suit

Authorities

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Legislation

  • Employment ActSection 43(1), 43(2), 45, 45(2), 45(4) and (5), 41, 44(1), 47(5), 49(1)(c)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d), Article 48
  • Halsbury's Laws of England 4th EditionVol. 16(1B) paragraph 642

Cases cited (13)

  • Mary Chemweno V Kenya Pipeline Co. Ltd
    [2014] eKLR
  • Walter Ogal Anuro V Teachers Service Commission
    [2013] eKLR
  • Janet Nyandiko V Kenya Commercial Bank Ltd
    [2017] eKLR
  • Kenfreight East Africa Ltd V Benson K. Nguti
    [2019] eKLR
  • Gregory Musamali V G4S Security Services Ltd
    [2016] eKLR
  • Anthony Mkala Chitavi V Malindi Water & Sewerage Co. Ltd
    [2013] eKLR
  • British Leyland (UK) V Swift
    [1981] I.R.L.R. 91
  • Naima Khamis V Oxford University Press (EA) Ltd
    [2017] eKLR
  • Galgalo Jarso Jillo V Agricultural Finance Corporation
    [2021] eKLR
  • Kenya Revenue Authority V Reuwel Waithaka Gitahi and 2 others
    [2019] eKLR
  • Postal Corporation of Kenya V Andrew K. Tanui
    [2019] eKLR
  • Ol Pejeta Ranching Co. Ltd V David Wanjau Muhoro
    [2017] eKLR
  • Regent Management Ltd V. Wilberforce Ojiambo Oando
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 41, 43, 45, 49)

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, "Okoth v Water Bus Globology Limited (Cause E084 of 2024) [2025] KEELRC 1290 (KLR)", Case Analysis (2025). Cause No E084 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1290/eng@2025-05-07

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