Nganga v Africare Limited (Cause E037 of 2021) [2025] KEELRC 1566 (KLR)
The bottom line
#A Kenyan court ruled Africare's dismissal was procedurally unfair but the dismissal reason was valid, awarding the employee Kshs 400,000 total.
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 termination of the employment of Victor Thairu Ng'ang'a (the Claimant) was unfair?
- 2.Whether Africare Ltd (the Respondent) was in breach of contract?
- 3.Appropriate remedies.
Key legal issues
#Procedural fairness of termination
Termination was procedurally unfair because the employer refused the Claimant's request to postpone the hearing and wrongly deemed his right to attend waived
The Claimant appeared for the 4 November 2020 hearing, which the Respondent itself aborted and rescheduled to 17 November 2020. The Claimant asked for accommodation to attend on 26 November 2020, but the Respondent refused without explanation and held the hearing in his absence. The Court held the Respondent's belief that the Claimant had waived his right to attend could not be correct, rendering the decision procedurally infirm.
Substantive fairness of termination
Valid and fair reasons existed (absconding duty) as refusing to report to work over grievances breached the employment contract
Sections 43 and 45 of the Employment Act place the burden of proving validity and fairness of reasons on the employer. The reason given was absconding duty. The Court held that reporting to work is a fundamental obligation; an employee with grievances should assert breach or claim constructive dismissal, not withhold services. The Claimant was therefore in breach of contract, and the Respondent proved valid and fair reasons.
Remedies for unfair procedure
One month's salary in lieu of notice and 3 months' gross salary as compensation awarded for procedural unfairness
Because the process was procedurally infirm, the Court awarded the equivalent of one month's salary in lieu of notice (Kshs 100,000/-). Considering the length of service of about 3 years, the Court awarded compensation equivalent to 3 months' gross salary (Kshs 300,000/-). These awards were made notwithstanding that the substantive reason for dismissal was valid.
Breach of contract heads
Claims for unpaid salaries and service pay declined; certificate of service declared a statutory entitlement
The Court declined unpaid salaries for May–November 2020 because the Claimant provided no services during the interlude. Service pay was declined under section 35(5) and (6) because the contract was subject to statutory deductions including NSSF and the Claimant did not testify he was not contributing. A certificate of service was held to be a statutory entitlement the Respondent must issue.
Legal principles established
#- An employer must allow an employee to make representations before a decision to dismiss is made, and a belief that the employee waived the right to attend a disciplinary hearing cannot stand where the employee requested a postponement
- An employee who has grievances against the employer may not refuse to report to work; the proper course is to assert breach of contract, resign and claim constructive dismissal, or approach a court
Court orders
#- 1.Declaration that the termination of the Claimant's employment was procedurally unfair
- 2.Award of pay in lieu of notice of Kshs 100,000/-
- 3.Award of compensation of Kshs 300,000/- (3 months' gross salary)
- 4.Award to attract interest at court rates from the date of judgment until payment in full
- 5.Respondent to issue a Certificate of Service within 30 days
- 6.Claimant to have costs
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)
Relief refused
#General damages for mistreatment and harassment
Not situated within any known cause of action and no evidential basis placed before the Court
Unpaid salaries of Kshs 700,000/- (May to November 2020)
Claimant did not provide services during the interlude
Service pay of Kshs 150,000/-
Claimant's contract was subject to statutory deductions including NSSF contributions and he did not testify that he was not contributing to the Fund, invoking section 35(5) and (6) of the Employment Act
Costs
The Claimant to have 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.
On this ground, the Court finds that the decision of the Respondent was procedurally infirm.
The Court finds that the Respondent had and has proved valid and fair reasons to terminate the Claimant's employment.
The Court finds and declares that the termination of the Claimant's employment was procedurally unfair.
The Claimant is awarded: i. Pay in lieu of notice Kshs 100,000/- ii. Compensation Kshs 300,000/-
The award to attract interest at court rates from the date of judgment until payment in full.
The Respondent to issue a Certificate of Service within 30 days.
The Claimant to have costs.
Issues in the judgment
#Typographical error in the judgment regarding section 35(5) and (6) of the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nganga v Africare Limited (Cause E037 of 2021) [2025] KEELRC 1566 (KLR)", Case Analysis (2025). Cause (not stated in excerpt). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1566/eng@2025-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.