Odundo v Kenya Institute of Management (Cause E320 of 2023) [2025] KEELRC 1430 (KLR)
The bottom line
#The Employment Court ruled a Kenyan institute unfairly dismissed an employee it hadn't paid, awarding him about Kshs 2.1 million plus 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 Respondent was in breach of contract by failing to pay salaries (August–December 2020, February and June 2021; March, July–September 2021 and January–September 2022)
- 2.Whether the Claimant was entitled to accrued leave allowance
- 3.Whether the Respondent failed to remit HELB, NSSF and NHIF deductions
- 4.Whether the Claimant was entitled to salary maintenance during suspension
- 5.Whether the summary dismissal was procedurally fair
- 6.Whether the summary dismissal was substantively fair under sections 43 and 45 of the Employment Act
- 7.Whether reinstatement or compensation was appropriate
- 8.Whether the Respondent's Counterclaim for breach of contract and damage to reputation was established
Key legal issues
#Procedural fairness of the disciplinary process
The hearing process was tainted by bias because managers who suspended the Claimant sat on both the Disciplinary Committee and the Appeals Disciplinary Committee
The Claimant's uncontroverted testimony was that at least two managers who suspended him sat on the initial Disciplinary Committee and one also sat on the Appeals Committee. Applying the principle that a person who decided a matter should not sit on its appeal, the Court found the apprehension of bias well-founded. The failure to disclose the identity of the student allegedly solicited also impeded the Claimant's defence, though that allegation did not lead to dismissal.
Substantive fairness of the dismissal
The reason for dismissal - absence from work without permission - did not meet the test of sections 43 and 45(4) of the Employment Act
The Respondent had withheld salary and maintenance during suspension, and the Claimant had communicated about this before failing to report on 18 August 2022. The Court held the employer could not benefit from its own breach of contractual obligations, so the absence was not a valid and fair reason for summary dismissal.
Unpaid salaries and leave allowance
The claims for unpaid salaries and accrued leave allowance succeeded because the Respondent produced no pay records or evidence of payment
The Respondent made only general denials and, as custodian of employee records, produced no pay records under sections 18 and 20 of the Employment Act, no schedule of final dues, and no records showing payment of the contractual leave allowance under clause 7.4 of the HR Manual. The unchallenged computations by the Claimant were therefore accepted.
Compensation and notice pay
Compensation of 3 months' gross salary and 1 month's pay in lieu of notice were awarded; reinstatement was refused
Considering the roughly 3 years of service, the Court found the equivalent of 3 months' gross salary (Kshs 96,000/- monthly) appropriate as compensation, plus 1 month's salary in lieu of notice. Reinstatement failed because the Claimant laid no basis for it.
Legal principles established
#- An employer, as custodian of employee records, bears the evidential burden to produce pay records when it denies wage claims
- Persons who suspended an employee should not sit on the disciplinary committee or appeal committee hearing that employee's case
- An employer that fails to fulfil its contractual obligations during suspension cannot rely on the employee's failure to report to work as a valid reason for dismissal
Court orders
#- 1.Declaration that the summary dismissal of the Claimant was unfair and that the Respondent was in breach of contract
- 2.Award of unpaid half-salaries Kshs 336,000/-
- 3.Award of unpaid full salary Kshs 1,248,000/-
- 4.Award of leave allowance Kshs 144,000/-
- 5.Award of compensation equivalent to 3 months' gross salary Kshs 288,000/-
- 6.Award of 1 month's pay in lieu of notice Kshs 96,000/- (total Kshs 2,112,000/-)
- 7.Award to attract interest at court rates from the date of judgment
- 8.Counterclaim dismissed with no order on costs
- 9.Claimant denied costs for filing submissions outside the agreed timelines
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 unfair termination and breach of contract under the Employment Act, 2007
Relief refused
#HELB loan recovery claim
Claimant did not produce a HELB statement or pay slips to demonstrate deductions were made
NSSF and NHIF unremitted contributions
No statements produced; the Funds have statutory mechanisms to address unremitted contributions
Salary maintenance during suspension
Claimant successfully claimed full salary for the suspension period; maintenance would amount to unjust enrichment
Reinstatement
Claimant did not lay a basis for an order of reinstatement
Respondent's Counterclaim
No evidential or legal foundation laid
Costs of the claim to the Claimant
Failure to file submissions within the agreed timelines without explanation
Costs
The Claimant is denied costs for failing to file submissions within the agreed timelines and not offering any explanation; the Counterclaim is dismissed with no order on 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.
The Court finds that the apprehensions of bias by the Claimant were well-founded and that the hearing process was therefore tainted.
A judge who has sat over a case should not sit on an appeal from a verdict made by the same judge. The same principle is also sound in disciplinary hearings.
The Court finds that the reason for the dismissal of the Claimant did not meet the test of sections 43 and 45(4) of the Employment Act, 2007.
The Respondent failed to fulfil its contractual obligations to the Claimant during suspension, and it would be inequitable for it to claim breach of contract on the part of the Claimant for failing to report to work.
The Court finds and declares that the summary dismissal of the Claimant was unfair, and that the Respondent was in breach of contract.
The Claimant is denied costs for failing to file submissions within the agreed timelines and not ofiering any explanation.
Issues in the judgment
#Internal inconsistency in the dates of the alleged absence supporting dismissal
Date discrepancy between hearing dates and delivery date; submissions due 11 April 2025 but judgment paragraph 5 refers to 'this morning' after submissions filed 29 April 2025
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odundo v Kenya Institute of Management (Cause E320 of 2023) [2025] KEELRC 1430 (KLR)", Case Analysis (2025). Not stated in the judgment text supplied. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1430/eng@2025-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.