Nderitu v Kenya Airways PLC (Cause E655 of 2022) [2025] KEELRC 1395 (KLR)
The bottom line
#A Kenyan court ruled an employer unfairly fired a procurement officer for a good-faith contract interpretation mistake, awarding him Kshs. 2,080,000.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.What was the proper interpretation of the subject contract between the Respondent and KLM on late return fees?
- 2.Whether the Claimant's summary dismissal was fair and lawful (substantively justified and procedurally fair)
- 3.Whether the Claimant is entitled to the reliefs sought (compensation, notice pay, service gratuity, interest and costs)
Key legal issues
#Whether the reason for dismissal - failure to diligently interpret the KLM contract leading to overcharging of USD 358,982.17 - was valid and fair
Dismissal was unfair; the reason was invalid as the dispute was one of contract interpretation between the Respondent and KLM and was beyond the Claimant's individual capacity
The evidence showed the issue concerned interpretation of a contract clause on late fees. The Respondent and KLM held differing interpretations, and the contract's Article 18.2 required such disputes to go to ADR, which the Respondent never invoked. The billed invoices and comparative calculations were not produced, so the loss was unproven. The Claimant cannot be vilified for a disagreement that was even resolved between the parties.
Burden of proof under Section 43 of the Employment Act
The Respondent failed to demonstrate the validity of the reason for dismissal
Section 43 requires the employer to prove the reasons for termination; where it fails, termination is deemed unfair under Section 45. RW1 confirmed the incorrect invoices and a comparative invoice showing the correct calculation were never produced in court, and no audit or financial statements substantiated the alleged loss attributable to the Claimant.
Legal principles established
#- The employer bears the burden of proving the reason(s) for termination; failure renders the termination unfair
- A genuine misinterpretation of a contract clause by an employee, where the correct interpretation was a matter of dispute between the employer and a third party resolvable by ADR, cannot constitute a valid fair reason for dismissal
Court orders
#- 1.1 month salary in lieu of notice of Kshs. 240,000
- 2.8 months' salary as compensation for unfair termination (8 x 240,000) which cut short the Claimant's career
- 3.Total award of Kshs. 2,080,000 less statutory deductions
- 4.Respondent to pay costs of the suit plus interest at court rates from the date of judgment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 over termination of employment (Sections 43 and 45 applied)
Relief refused
#12 months' gross salary compensation; only 8 months awarded
Court found dismissal unfair but awarded less than the maximum claimed
3 months' salary in lieu of notice; only 1 month awarded
Award limited to one month's notice
Service gratuity of Kshs. 1,188,000
Not awarded in the final orders; Respondent had argued it was not a term of the Claimant's contract
Costs
The Respondent will pay cost of this suit plus interest at court rates with effect from the date of this judgement.
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.
It is therefore my finding that the dismissal of the Claimant was unfair in the circumstances as per Section 45 (2) of the Employment Act 2007
The Respondent failed to demonstrate the validity of the reason bearing in mind that the contention or interpretation was between KLM and the Respondent and which issue should have been resolved through ADR.
As concern remedies, I find for Claimant and accordingly award him as follows: 1. 1 month salary in lieu of notice - 240,000/= 2. 8 months salary as compensation for the unfair termination which cut short the Claimant's career
The Respondent will pay cost of this suit plus interest at court rates with efiect from the date of this judgement.
Issues in the judgment
#Arithmetic inconsistency in the award: 8 x 240,000 equals 1,920,000, but the judgment states '8 x 240,000 = 1,840,000/=' while the total of 2,080,000 equals 240,000 + 1,840,000, suggesting the stated total follows the 1,840,000 figure
The overcharge figure is stated as USD 357,000 in the pleadings and submissions but as USD 358,982.17 in the court's findings
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nderitu v Kenya Airways PLC (Cause E655 of 2022) [2025] KEELRC 1395 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1395/eng@2025-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.