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ELRCPartially AllowedCause No 19 of 2019· [2025] KEELRC 1664 (KLR)

Opiyo v Amma Consulting Engineers Limited (Cause 19 of 2019) [2025] KEELRC 1664 (KLR)

Employment and Labour Relations Court
5 June 2025
3,014 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer can have good reasons to fire someone but still lose in court if it skips the mandatory hearing before termination.

What this practically means

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Executive summary

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The Claimant, employed as a construction site Inspector by a written contract dated 30th May 2018 at a monthly gross salary of Kshs.80,000/-, sued for a declaration that his December 2018 termination was unlawful, payment for the unexpired 24-month contract term, two months' salary arrears, general damages for loss of reputation, overtime pay and costs. The Respondent defended the termination, contending that while it was investigating the Claimant's reported assault by Mr. Song Bo, an employee of the project contractor, the Claimant privately settled with his assailant for Kshs.350,000/- and withdrew the police complaint, amounting to gross misconduct; it also counter-claimed items worth Kshs.154,902/- allegedly not handed over. The court framed two issues: whether the termination was unfair, and entitlement to reliefs. It held the termination procedurally unfair because the Claimant was neither notified nor heard as required by Section 41 of the Employment Act, applying Walter Ogal Anuro, Benson K. Nguti and Mary Mutanu Mwendwa. However, applying the British Leyland reasonable-employer test, it held the termination substantively fair, finding the Claimant's private settlement while the employer was investigating dishonest and justifying dismissal. The claim for the unexpired contract term was rejected as wages are paid for labour rendered; damages for loss of reputation and overtime failed for want of evidence. The court awarded a declaration of procedural unfairness, four months' salary (Kshs.320,000/-) as compensation, and salary arrears of Kshs.160,000/-, with costs and interest to the Claimant.

Key legal issues

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01

Whether the termination was procedurally fair

Holding

Procedurally unfair - the Claimant was not heard or given an opportunity to make representations before termination

Reasoning

The Respondent's witness admitted no notice of termination was issued, only payment in lieu. The Respondent admitted the Claimant was not accorded an opportunity to present his case. Sections 41 and 45 of the Employment Act make hearing and notification mandatory. Following Walter Ogal Anuro, Nguti and Mary Mutanu Mwendwa, termination without such procedural steps is unfair even where notice pay is given.

p. 5
02

Whether there was substantive justification for the termination

Holding

Substantively fair - the Claimant's private settlement with his assailant while the employer was investigating justified dismissal for gross misconduct

Reasoning

Applying the British Leyland reasonable-employer test, the court found the Claimant dishonest in involving the employer in the assault complaint and then privately settling with and withdrawing the police complaint against his assailant, without recourse to the employer. This conduct amounted to gross misconduct and insubordination, and a reasonable employer could dismiss for it.

p. 6
03

Entitlement to salary arrears

Holding

Allowed as prayed - Respondent admitted two months' salary unpaid; alleged non-clearance not proved

Reasoning

The Respondent admitted owing two months' salary (Kshs.120,841/- asserted by the Respondent but allowed as prayed at Kshs.160,000/-). Its defence that the Claimant did not clear or hand over items worth Kshs.154,902/- rested on uncontroverted-but-unproved testimony, the Claimant having testified he handed over the house, household items and keys. The court preferred the Claimant's unchallenged evidence.

p. 6

Legal principles established

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  • Fair termination requires both substantive justification and procedural fairness
  • Payment of one month's salary in lieu of notice under Section 35 does not by itself make a termination fair; procedural fairness and substantive justification remain obligatory
  • Section 41 of the Employment Act mandates notification of reasons and an opportunity to be heard before termination on grounds of misconduct
  • Compensation for unfair termination may be pegged to the length of service where wages are paid for labour provided

Court orders

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  1. 1.A declaration that the Claimant's dismissal was unfair on account of procedure
  2. 2.The Respondent pays the Claimant four (4) months' salary as compensation for the unfair termination at Kshs.320,000/=
  3. 3.The Respondent pays the Claimant's salary arrears of Kshs.160,000/-
  4. 4.The Respondent shall bear the costs of the suit and interest from the date of the judgment until payment in full

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 35

Cases cited (4)

  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Benson K. Nguti v. Kenfreight (E.A) Limited
    (2016) eKLR
  • Mary Mutanu Mwendwa v Ayuda
    [2013] eKLR
  • British Leyland UK Ltd v. Swift
    [1981] IRLR 91
Jurisdiction invoked
Employment and Labour Relations Court first-instance jurisdiction under the Employment Act, 2007 and the Labour Relations framework (Sections 35, 41, 43, 45 and 47(5) of the Employment Act, 2007 applied)

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, "Opiyo v Amma Consulting Engineers Limited (Cause 19 of 2019) [2025] KEELRC 1664 (KLR)", Case Analysis (2025). Cause No 19 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1664/eng@2025-06-05

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