Ahuta v Associated Construction Co (K) Ltd (Cause 1311 of 2018) [2025] KEELRC 1373 (KLR)
The bottom line
#A Kenyan employer who fires without a valid reason and a fair hearing must pay notice, refunds, three months' compensation, costs and interest.
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 an employee of the Respondent
- 2.Whether the termination of the Claimant was lawful, substantively fair and procedurally fair
- 3.Whether the Claimant is entitled to the reliefs sought
Key legal issues
#Whether the termination was substantively and procedurally fair
The dismissal was unlawful both substantively and procedurally: no valid and fair reason was proved and the mandatory notification and hearing requirements of section 41 of the Employment Act were not complied with.
The Respondent alleged a reluctant approach to duties amounting to poor performance but adduced no evidence of misconduct, poor performance or operational reasons, no warning letters, no show-cause letter and no disciplinary hearing. Citing poor performance alone is insufficient; the employer must show it helped the employee meet expectations. Sending the employee on compulsory leave while treating that letter as one month's notice cannot substitute for the mandatory section 41 process of notification and hearing before termination.
Whether the Claimant was entitled to the reliefs claimed
The claim was allowed in full: notice pay, refund of unlawful deductions, three months' compensation, certificate of service, costs and interest.
Under section 49 the court exercises discretion considering section 49(4) factors, noting one year of service and the nature of the termination, and awarded three months' salary. Notice pay was unpaid and awarded under sections 35 and 36. Unproved deductions breached section 19's prohibition on unauthorised deductions and were ordered refunded. A certificate of service issues as of right under section 51.
Legal principles established
#- For a termination to pass the fairness test there must be both substantive and procedural fairness.
- An employer cannot send an employee on compulsory leave and simultaneously treat that act as notice of termination without following the mandatory process under section 41 of the Employment Act.
- In cases of alleged poor performance leading to termination, the employer must prove the employee was aware of performance standards, efforts were made to support improvement, and time was given for improvement.
- In an undefended claim the court must still interrogate the Claimant's evidence on merit rather than automatically accept it.
Court orders
#- 1.Notice pay of Kshs 80,000/= awarded under sections 35 and 36 of the Employment Act
- 2.Refund of unlawful deductions of Kshs 168,163/= as prayed
- 3.Three months' salary as compensation for unlawful termination, Kshs 240,000/=, under section 49 of the Employment Act
- 4.Certificate of service to issue as of right under section 51 of the Employment Act
- 5.Costs of the suit awarded to the Claimant
- 6.Interest on the suit awarded
- 7.Total award of Kshs 488,163/= exclusive of costs and interest
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims (Employment Act, 2007)
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 claim is hereby allowed with costs as follows:
It is so ordered.
The Court finds that the Respondent was enjoined in mandatory terms to comply with the provisions of section 41 of the Act and therefore arrives at a finding that the Claimant’s dismissal was unlawful both substantively and procedurally.
This court also notes that an employer cannot send an employee on compulsory leave and also suggest that the same act as a notice for termination without taking the employee through the mandatory process under Section 41 of the Employment Act.
There can be no doubt that the Act, which was enacted in 2007, places a heavy obligation on the employers in matters of summary dismissal (Emphasis mine) for breach of employment contract and unfair termination involving breach of statutory law.
Issues in the judgment
#The judgment records the termination date inconsistently; the testimony states '24/3 /2028' while the pleadings and submissions state 24th March 2018, and the deduction arithmetic in the final orders (80,000 + 168,163 + 240,000) totals 488,163 as stated.
The memorandum of claim as summarised refers to the Claimant with male pronouns ('terminate his service') though the claimant is elsewhere described as female.
The judgment inconsistently records the reason on the compulsory leave letter, at one point as 'reluctant approach to work' and elsewhere as 'reduced productivity'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ahuta v Associated Construction Co (K) Ltd (Cause 1311 of 2018) [2025] KEELRC 1373 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1373/eng@2025-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.