Opiyo v Amma Consulting Engineers Limited (Cause 19 of 2019) [2025] KEELRC 1664 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the termination was procedurally fair
Procedurally unfair - the Claimant was not heard or given an opportunity to make representations before termination
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.
Whether there was substantive justification for the termination
Substantively fair - the Claimant's private settlement with his assailant while the employer was investigating justified dismissal for gross misconduct
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.
Entitlement to salary arrears
Allowed as prayed - Respondent admitted two months' salary unpaid; alleged non-clearance not proved
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.
Legal principles established
#- 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
#- 1.A declaration that the Claimant's dismissal was unfair on account of procedure
- 2.The Respondent pays the Claimant four (4) months' salary as compensation for the unfair termination at Kshs.320,000/=
- 3.The Respondent pays the Claimant's salary arrears of Kshs.160,000/-
- 4.The Respondent shall bear the costs of the suit and interest from the date of the judgment until payment in full
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.