Njiriri v Zizu Investments Limited (Cause E404 of 2021) [2025] KEELRC 1313 (KLR)
The bottom line
#A Kenyan court dismissed both an accountant's unfair termination claim and the employer's counterclaim, showing COVID-19 job losses and weak evidence can leave everyone empty-handed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claimant was employed by the respondent as accountant and at what salary (including whether payments via Zulekha Nizar Samji formed part of his salary)
- 2.Whether this Court has jurisdiction to hear and determine the suit and the counterclaim
- 3.Whether the termination of the claimant's employment was unfair
- 4.Whether the remedies prayed for by the claimant are justified
- 5.Whether the respondent's counterclaim succeeds
Key legal issues
#Jurisdiction of the ELRC over the claim and counterclaim
The Court had jurisdiction; the respondent was estopped by approbation and reprobation from denying it while invoking the same Court on its counterclaim
The respondent argued the Court lacked pecuniary jurisdiction because the claimant earned Kshs. 40,000 monthly, yet simultaneously asked the Court to determine its counterclaim. The Court held this inconsistent position was 'trapped by the principle of approbation and reprobation'. It found that under section 12(1) of the ELRC Act, read with Article 162(2) of the Constitution, the Court had exclusive jurisdiction and the parties properly invoked it.
Whether termination was unfair
Termination was fair: a valid 30-day notice under section 35(1)(c) of the Employment Act was given for a fair reason (COVID-19 financial constraints)
The Court took judicial notice of the COVID-19 pandemic's financial impact on enterprises. The respondent elected to terminate by minimum notice under section 35(1)(c) rather than declare redundancy. The notice of 19.04.2020 expressly cited the pandemic and cost reduction. The claimant absconded instead of engaging on alternatives. A fair procedure and fair reason were established, and no redundancy remedies (severance or notice pay under section 40) were sought or contemplated.
Whether the salary was Kshs. 40,000 or Kshs. 160,000
Employment salary was Kshs. 40,000; the Kshs. 120,000 monthly fee notes were a separate consultancy engagement with Zulekha Samji, not salary
The Court found per the payslips and PAYE deductions that the employment salary was Kshs. 40,000. Payments routed through Zulekha Nizar Samji's account related to fee notes raised for consultancy work done for her, with withholding tax deducted accordingly. The Court held this consultancy was a separate engagement from the employment relationship, upholding the respondent's case.
Whether the counterclaim for damages succeeds
Counterclaim dismissed; claimant not shown culpable and recovery limited by statute
RW1 did not know whether the claimant or another person tampered with passwords or cabinet keys, so the claimant was not culpable on a balance of probabilities. Consultant fees after separation were the respondent's liability. Statutorily, recovery was limited to wages for absence, no disciplinary process was initiated, and the respondent was not pursuing notice pay for absconding. The parties' rights and obligations lapsed when the contract ended.
Legal principles established
#- A party cannot approbate and reprobate - it cannot simultaneously challenge and invoke the Court's jurisdiction
- Under section 12(1) of the Employment and Labour Relations Court Act, 2011, the ELRC has exclusive original and appellate jurisdiction over employment and labour relations disputes under Article 162(2) of the Constitution
- An employer may elect between termination by notice under section 35(1)(c) of the Employment Act and redundancy under section 40; where termination is by valid notice, redundancy-type remedies like severance pay do not arise
- Claims for special damages such as unpaid leave must be particularly pleaded and strictly proved
Court orders
#- 1.The claimant's suit is dismissed
- 2.The respondent's counterclaim is dismissed
- 3.Each party to bear own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 12(1) of the Employment and Labour Relations Court Act, 2011 and Article 162(2) of the Constitution
Relief refused
#Unpaid annual leave days (21 days) - Kshs. 112,000
Claim for special damages not particularised and not strictly proved
Unpaid salary for April 2020 - Kshs. 160,000
Claimant did not work in April after receiving the termination notice, so no pay could flow without demonstrated services
Compensation for unfair termination - Kshs. 1,920,000
Termination was not unfair; a fair procedure was adopted and a fair reason established
Counterclaim damages of Kshs. 556,000 and salary in lieu of notice Kshs. 40,000
Claimant not shown culpable on a balance of probabilities; relationship had ended; statutory recovery limited; respondent not pursuing notice pay
Costs
Each party to bear own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion, the claimant’s suit and the respondent’s counterclaim are both dismissed with orders each party to bear own costs.
the Court has exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and provisions of the Act
It appears to the Court that the respondent had an election to go for termination by giving notice or by invoking redundancy.
The Court has found that the respondent adopted a fair procedure and a fair reason was established to justify the termination.
Such special damages required particularised pleading and to be strictly proved. That was not done. The prayer must fail.
On a balance of probabilities, the claimant has not been shown culpable and cannot be held liable to meet the expenses of the claims for recovery of the keys or passwords.
Issues in the judgment
#Typographical errors in judgment text (e.g. 'efiectively', 'fiow', 'difiicult', 'hear at ago')
The judgment does not state the case number of the suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njiriri v Zizu Investments Limited (Cause E404 of 2021) [2025] KEELRC 1313 (KLR)", Case Analysis (2025). Not stated in judgment (memorandum of claim dated 12.05.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1313/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.