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ELRCPartially AllowedMemorandum of Claim dated 27th November, 2018· [2025] KEELRC 1646 (KLR)

Ndaire v Fast Choice Ltd (Cause 1558 of 2018) [2025] KEELRC 1646 (KLR)

Employment and Labour Relations Court
5 June 2025
3,973 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled an employee's dismissal unfair because the employer couldn't prove valid reasons, awarding her about Kshs. 748,000 despite procedural fairness.

What this practically means

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Executive summary

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In this first-instance employment dispute, the Claimant, who was appointed Acting General Manager on 1st October 2017 on a six-month probation at a gross monthly salary of Kshs.87,000, sued her former employer for a declaration that her summary dismissal of 23rd August 2018 was unfair and unlawful, compensation of Kshs.1,183,200, interest and costs. The Respondent defended the dismissal, contending the Claimant was redeployed following an unsatisfactory performance review, took unapproved leave, and was summarily dismissed for desertion of duty after twice refusing to attend disciplinary hearings. The court framed three issues: the position the Claimant held at dismissal, whether the termination was unfair, and entitlement to reliefs. It held that the six-month probation having lapsed on 30th March 2018 without extension or communication, the Claimant was deemed confirmed as General Manager by operation of law, and since her former position had been filled in March 2018, the purported redeployment was ineffective. On procedure, the court found the Respondent complied with Section 41 of the Employment Act, as the Claimant was issued a show cause letter and invited twice to a disciplinary hearing which she declined to attend. However, on substance, the Respondent failed to prove valid and fair reasons: it led no evidence that leave was rejected, mishandled the performance appraisal, and left confusion as to whether the dismissal was for poor performance or absconding duty. The dismissal was held substantively unfair. The court granted a declaration of wrongful and unfair dismissal, seven months' salary as compensation (Kshs.609,000), 18 days' leave pay (Kshs.52,200), one month's salary in lieu of notice (Kshs.87,000), costs to the Claimant, and interest at court rates on the sums awarded from the date of judgment.

Key legal issues

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01

The position the Claimant held at dismissal

Holding

The Claimant was deemed confirmed as General Manager effective 1st April 2018 and was dismissed from that position, not from Credit Control Manager

Reasoning

The six-month probation stated in the appointment letter expired by 30th March 2018 with no extension communicated, which by law could occur only once and required notice. The employee was therefore deemed confirmed by operation of law. Her replacement was hired in March 2018, so the Credit Control Manager position was filled and could not be a redeployment point. The court held she was dismissed from the position of General Manager.

p. 5
02

Procedural fairness of the dismissal

Holding

The Respondent complied with Section 41 of the Employment Act; the dismissal was procedurally fair

Reasoning

The Respondent issued a show cause letter spelling out the charges, invited the Claimant to a disciplinary hearing twice, and only then issued the summary dismissal letter. The Claimant declined to attend the hearings, having instructed counsel, and thereby squandered her opportunity to present her defence. Following Philip Kimosop and Silvester Malei Kyengo, these steps satisfied the procedural fairness requirements of Section 41.

p. 6
03

Substantive fairness/validity of reasons for dismissal

Holding

The dismissal was substantively unfair as the Respondent failed to prove valid and fair reasons

Reasoning

Although both parties agreed the Claimant had performance challenges, she was dismissed for absconding duty, not poor performance. The Respondent led no evidence that the leave application was rejected or why. The Respondent steered clear of addressing the demotion, appraised the Claimant through her subordinates, and occasioned confusion as to the true ground of dismissal. Under Section 45, the Respondent failed to prove valid and fair reasons.

p. 8
04

Entitlement to reliefs

Holding

The Claimant was awarded seven months' salary compensation, notice pay, and 18 days' leave pay

Reasoning

The finding of unfair dismissal entitled the Claimant to compensation. Seven months was deemed sufficient given her admitted underperformance and her refusal to participate in the disciplinary hearing. Nothing showed notice was issued or paid, so notice pay was allowed as prayed. The Respondent, as legal custodian of employee records, did not controvert the claim for 18 days of leave, which was awarded as prayed.

p. 8

Legal principles established

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  • Where a six-month probationary period lapses without extension or communication of confirmation, the employee is deemed confirmed to the substantive position by operation of law
  • A dismissal may be procedurally fair yet substantively unfair where the employer fails to prove valid and fair reasons
  • The employer bears the burden of demonstrating adherence to Sections 41, 43, 45 and 47(5) of the Employment Act on procedure and substantive justification

Court orders

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  1. 1.A declaration that the Claimant's dismissal was wrongful and unfair
  2. 2.That the Respondent pays the Claimant 7 months salary as compensation for the unfair dismissal at Kshs. 609,000/-
  3. 3.Payment on account of 18 days of leave not taken at Kshs. 52,200/-
  4. 4.One month salary in lieu of notice at Kshs. 87,000/-
  5. 5.Costs of the suit shall be borne by the Respondent
  6. 6.Interest on (b), (c) & (d) at court rate from the date of this judgment until payment in full

Authorities

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Legislation

  • Employment ActSection 41(1)
  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 47(5)

Cases cited (7)

  • Philip Kimosop v Kingdom Bank Limited
    (2022) eKLR
  • Silvester Malei Kyengo v Kenya Meat Commission
    (2019) eKLR
  • British American Tobacco (K) Ltd v Kenyan Union of Commercial Food and Allied Workers (Kucfaw)
    [2019] eKLR
  • Anthony Mulaki V Addax Kenya Limited
    Cause No. 822 of 2012
  • British Home Stores Ltd v Burchell
    (1980) LC.R. 303 E.A.T.
  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
  • Charles Musungu Odana v Kenya Ports Authority
    [2019] eKLR
Jurisdiction invoked
Original jurisdiction under the Employment Act No. 11 of 2007 (Sections 41, 43, 45 and 47(5))

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ndaire v Fast Choice Ltd (Cause 1558 of 2018) [2025] KEELRC 1646 (KLR)", Case Analysis (2025). Memorandum of Claim dated 27th November, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1646/eng@2025-06-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.