Munyae v Freedom Airline Express (Cause 114 of 2017) [2025] KEELRC 1595 (KLR)
The bottom line
#A Kenyan court ruled that even a justified dismissal is unlawful if the employee is never given a hearing, awarding the pilot Kshs. 705,000.
What this practically means
#Executive summary
#Key legal issues
#Whether the reason for termination (gross misconduct) was valid and fair
The reason met the reasonable employer test; the relationship had broken down and the claimant was rigid and at times unreasonable
The court evaluated the evidence, finding the claimant worked under three months amid breakdown of the working relationship. He refused to take instructions from the air marshal without justification and refused an early pickup while he had not worked on 29th and 30th October. Guided by Ondari v NHIF, the court held the reason met the reasonable employer test and did not substitute its own view for the employer's.
Whether the termination was procedurally fair
It was not - no hearing or procedure under section 41 of the Employment Act preceded the summary dismissal
The dismissal letter took effect with immediate effect and there was no compliance with section 41, which is couched in mandatory terms. Section 42(1), excluding probationary employees from section 41 protections, had been declared unconstitutional and that holding was upheld on appeal. The termination was therefore procedurally unfair.
Whether the respondent's counterclaim for losses was proved
It failed; the respondent did not prove on a balance of probability that the claimant was solely liable
The claimant asserted the 29th October flight did not take off for lack of a passenger licence; the respondent did not produce the licence to rebut this. The respondent's HR witness admitted the 1st officer was reported sick but never sought evidence from him though still in service. Lacking proof, the counterclaim for USD 1,512,000, USD 23,864 and general damages failed.
Legal principles established
#- Fairness of termination requires both substantive fairness of reason and procedural fairness under section 41 of the Employment Act
- Every employee, including those on probation, is entitled to procedural fairness under section 41, section 42 having been declared unconstitutional
- Burden of proof in unfair termination: employee proves occurrence, employer justifies grounds
- He who alleges must prove - respondent's counterclaim failed for want of proof
Court orders
#- 1.Notice pay of Kshs. 600,000
- 2.Pay of untaken prorated leave Kshs. 105,000
- 3.Total sum awarded (a and b above) is Kshs. 705,000 payable with interest at court rate from date of judgment until payment in full
- 4.Costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (original claim and counterclaim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munyae v Freedom Airline Express (Cause 114 of 2017) [2025] KEELRC 1595 (KLR)", Case Analysis (2025). Statement of Claim dated 24th January 2017 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1595/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.