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ELRCPartially AllowedELRCA No. E076 of 2024· [2025] KEELRC 1731 (KLR)

Wasike v Gramo Properties Limited (Employment and Labour Relations Appeal E076 of 2022) [2025] KEELRC 1731 (KLR)

Employment and Labour Relations Court
12 June 2025
5,819 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Employment Court ruled a worker's dismissal unfair because the employer gave no reason and disciplined him only after terminating him, awarding Kshs. 410,850.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Nairobi against the judgment of Honourable Lucy Ambasi (CM) delivered on 26th February 2024 in Milimani MCERLC No. E1582 of 2022, which dismissed the appellant's claim for unfair termination by the respondent, Gramo Properties Ltd. The appellant, an Internal Security Officer employed from 23rd October 2018 (and with the respondent since 2011 under different terms), sought a declaration that his termination was unfair, reinstatement or alternatively compensation of Kshs. 7,169,250, interest and costs. Guided by Selle v Associated Motor Boat Co. Ltd and Mbogo v Shah, the court re-evaluated the evidence. It framed three issues: substantive fairness, procedural fairness, and entitlement to reliefs. On substantive fairness, the court found the termination letter dated 13th June 2022 disclosed no reason, only notice per contract, and backdated termination to 5th April 2022 - a day before the show cause letter - while RW1 admitted the appellant had good reviews and a letter of 13th May 2022 described him as an asset; no valid reason was proved under sections 43 and 45. On procedural fairness, the show cause post-dated the termination, there was no evidence of service or warnings, violating section 41. Reinstatement was declined as the relationship had broken down. The court awarded notice pay of Kshs. 33,000, leave pay of Kshs. 39,600, five days' salary of Kshs. 8,250 and ten months' compensation of Kshs. 330,000, totalling Kshs. 410,850 with interest, plus costs of the suit and appeal, and a 30-day stay.

Key legal issues

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01

Substantive fairness of the termination

Holding

The termination was substantively unfair as the termination letter disclosed no reason and no valid reason was proved on a balance of probabilities

Reasoning

The court re-evaluated the evidence and found the termination letter dated 13th June 2022 gave no reason, referred only to notice per the contract, and backdated termination to 5th April 2022, a day before the show cause letter. RW1 admitted the letter had no reference to the termination reason and that the appellant had good reviews. A letter of 13th May 2022 described the appellant as an asset. No valid reason under section 43 was therefore established.

p. 10
02

Procedural fairness of the termination

Holding

The termination was procedurally unfair as the show cause letter post-dated the termination and there was no evidence it was served

Reasoning

The court found the termination took effect on 5th April 2022 while the show cause letter was dated 6th April 2022, making disciplinary process after termination impermissible. There was no evidence the show cause was served on the appellant or that HR called him, and no prior warnings existed as envisaged under clause 20 of the employment letter, contrary to section 41 of the Employment Act.

p. 9
03

Entitlement to remedies on appeal

Holding

The appellant was awarded notice pay, leave pay, salary for days worked and 10 months' compensation in lieu of reinstatement

Reasoning

Having found the termination unlawful and unfair, the court applied sections 49 and 50 of the Employment Act. Reinstatement was declined because the relationship had broken down. The court awarded notice pay, prorated leave of 36 days admitted in the termination letter, 5 days' April salary, and 10 months' gross salary as compensation, considering the length of service since 2011, lack of contributory fault, the claimant's age of about 50 and meagre NSSF social security.

p. 12

Legal principles established

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  • A termination of employment is unfair unless the employer proves a valid and fair reason and that a fair procedure was followed
  • An employer cannot take out disciplinary proceedings after termination of employment
  • Where the employer fails to prove the reason for termination, the termination is deemed unfair

Court orders

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  1. 1.The Judgment of the Honourable Lucy Ambasi (CM) delivered on 26th February 2024 in Milimani MCERLC No. E1582 of 2022 is set aside and substituted
  2. 2.A declaration that the termination of the claimant's contract was unlawful and unfair
  3. 3.Notice pay of Kshs. 33,000
  4. 4.Leave pay in lieu for 36 days of Kshs. 39,600/-
  5. 5.5 days (April 2022) salary backpay of Kshs. 8,250
  6. 6.Compensation for unfair termination of Kshs. 330,000 (10 months' gross salary)
  7. 7.Total award of Kshs. 410,850 payable with interest at court rate from the date of judgment of the lower court
  8. 8.Costs of the suit and of the appeal awarded to the appellant
  9. 9.Stay of 30 days granted

Authorities

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Legislation

  • Employment ActSections 35, 35(6), 41, 42(1), 43, 44, 45(1) & (2), 46, 47(5), 49(1), (3), (4), 50, 51

Cases cited (12)

  • Selle v Associated Motor Boat Co. Ltd
    [1968] EA 123
  • Mbogo v Shah
    [1968] EA 94
  • Kenfreight (E.A) Limited v Benson K. Nguti
    KESC 79 (KLR)
  • Mutaki V Tire World Limited
    (Employment And Labour Relations Appeal E015 Of 2022) [2024] KEELRC 1047 (KLR)
  • Wanyera V Central Isiolo Investment Limited
    (APPEAL E002 OF 2023) [2024] KEELRC 596 (KLR)
  • Korich V Fairview Hotel Limited
    [CAUSE 594 OF 2018] [2023] KEELRC 499 (KLR)
  • Dede Esi Amanor Wilks v Action Aid International
    [2014] eKLR
  • Milano Electronics Limited V Dickson Nyasi Muhaso
    [2021] eKLR
  • Peter Otabong Ekisa V County Government Of Busia
    [2017] eKLR
  • Okun vs Kenyatta University
    (Cause 363 of 2019) [2023] KEELRC 2340 (KLR)
  • Bernard Shem Koweru v United Millers Limited
    [2020] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
On appeal from
Magistrates' Court, Milimani
MCERLC No. E1582 of 2022
Jurisdiction invoked
First appellate jurisdiction over the trial magistrate's judgment in an employment claim (Memorandum of Appeal dated 25th March 2024)

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, "Wasike v Gramo Properties Limited (Employment and Labour Relations Appeal E076 of 2022) [2025] KEELRC 1731 (KLR)", Case Analysis (2025). ELRCA No. E076 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1731/eng@2025-06-12

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