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ELRCPartially AllowedNot stated in the judgment provided

Neser v Globology Limited & 7 others (Cause E033 of 2024) [2025] KEELRC 1777 (KLR)

Employment and Labour Relations Court of Kenya
19 June 2025
5,391 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Claimant, employed as CEO of the 1st Respondent under an agreement dated 17th June 2019, was dismissed on 15th April 2024 following disciplinary proceedings initiated after failed mutual separation talks. He claimed unfair and unlawful termination, discrimination, entitlement to an Employee Share Option Plan (ESOP), damages for psychological distress, and that motor vehicle KBX 925V formed part of his emoluments. The Respondents maintained the dismissal was substantively and procedurally justified by gross misconduct, that the ESOP was not operationalised and he lacked the five-year service requirement, and that directors and trustees could not be personally liable. The court distilled seven issues. It found the termination unfair and unlawful, holding that a disciplinary process commenced with the ulterior motive of ensuring a dismissal cannot be fair or lawful under section 41 of the Employment Act. It found discrimination, holding that denial of compassionate leave to visit his terminally ill father and victimisation for raising emoluments concerns breached section 46(h), and that discrimination extends beyond race and gender. The joinder of the 2nd to 8th Respondents was held necessary and appropriate given their central role in denying the ESOP benefits, and USD 233,316.86 was awarded as the Claimant's share. The court awarded Kshs. 1,000,000 for discrimination, Kshs. 1,000,000 for psychological distress, USD 68,000 for the vehicle, three months' notice pay of USD 34,050, 12 months' compensation of USD 136,200, and USD 11,350 for 30 days' unused leave, with interest and costs. The defamation claim failed for lack of proof.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the termination of the Claimant's employment was unfair and/or unlawful
  2. 2.Whether the Claimant was subjected to discrimination during employment or upon termination
  3. 3.Whether the Claimant is entitled to benefits under ESOP
  4. 4.Whether the Claimant is entitled to damages for alleged mental and psychological distress
  5. 5.Whether the motor vehicle registration number KBX 925V formed part of the Claimant's terminal entitlements and whether the 2nd to 8th Respondents are properly joined and necessary parties
  6. 6.Whether the Claimant is entitled to the reliefs sought
  7. 7.Who should bear the costs of the suit

Key legal issues

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01

Whether the termination was unfair and unlawful

Holding

The termination was unfair and unlawful; the disciplinary process was commenced with the ulterior motive of ensuring dismissal after failed mutual separation talks.

Reasoning

The Claimant was on the verge of a mutually agreed separation when the 1st Respondent instead preferred myriad accusations of misconduct leading to dismissal. A disciplinary process commenced purely for the ulterior motive of ensuring a dismissal cannot be fair or lawful under section 41 of the Employment Act. The ensuing process was found replete with malice and marred with illegalities, culminating in a dismissal that was unprocedural and without reason.

p. 8
02

Whether the Claimant was discriminated against

Holding

Discrimination was established: denial of compassionate leave to visit his terminally ill father and victimisation for raising emoluments issues constituted discrimination and unfair treatment.

Reasoning

The court held that discrimination is not limited to race and gender; denial of leave to attend to a terminally ill parent and failure to review compensation evidenced discrimination and unfair treatment. Section 5(7) of the Employment Act places the burden on the employer to prove no discrimination occurred, and the Respondents failed to discharge it. Punishing an employee for raising emoluments concerns is prohibited under section 46(h).

p. 8
03

Whether the Claimant is entitled to ESOP benefits and whether the 2nd to 8th Respondents were properly joined

Holding

The joinder of the 2nd to 8th Respondents was necessary and appropriate, and the Claimant was entitled to his share of shares valued at USD 233,316.86.

Reasoning

The Claimant was instrumental in securing the Shell Foundation grant, and the 2nd to 8th Respondents as board members were tasked with conditions of the employee share programme. Relying on Transport and Allied Workers Union v Kenya Bus Services, the court found the joinder appropriate given their central role in denying employee benefits connected to shares. Denying him the shares would be unconscionable.

p. 10
04

Whether the Claimant is entitled to damages for mental and psychological distress

Holding

Yes; the Claimant availed medical reports establishing mental and psychological distress flowing from the Respondents' conduct, and the ELRC is the proper forum.

Reasoning

The court rejected the Respondents' argument that psychological injury claims lie only in constitutional petitions, holding that sick leave is a recognised benefit under the Employment Act and the Employment Court is the proper forum where employee rights are abridged. Medical reports availed by the Claimant provided a basis for finding in his favour, warranting Kshs. 1,000,000 in damages.

p. 10
05

Whether motor vehicle KBX 925V formed part of the Claimant's terminal entitlements

Holding

The vehicle was a term of the contract per Clauses 6.4 and 6.7, computed as USD 68,000, notwithstanding the car hire arrangement.

Reasoning

Clause 6.4 stipulated the company would provide a suitable vehicle for a family of five, and Clause 6.7 provided for payment of USD 5,700 monthly in lieu of the listed emoluments including the vehicle. The court found the vehicle was a term of the contract and the mere fact it was under a car hire agreement did not detract from its intent and purpose.

p. 10

Legal principles established

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  • A disciplinary process commenced purely for the ulterior motive of ensuring a dismissal cannot be fair or lawful under section 41 of the Employment Act
  • Punishing an employee for raising legitimate concerns about emoluments is prohibited under section 46(h) of the Employment Act and amounts to discrimination
  • The employer bears the burden of proving that alleged discrimination did not take place
  • A benefit such as a company vehicle provided under the employment contract is a term of the contract even if under a car hire arrangement

Court orders

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  1. 1.A declaration that the termination of his employment was unfair and unlawful
  2. 2.Damages for discrimination – Kshs. 1,000,000/-
  3. 3.Damages for mental and psychological distress suffered as a result of the Respondents denial of compassionate leave – Kshs. 1,000,000/-
  4. 4.A declaration that the vehicle KBX 925V constitutes part of the emoluments of the Claimant computed as USD 68,000
  5. 5.Three months' salary in lieu of notice pursuant to Clause 15.5A of the Employment Contract USD 34,050 (net of taxes)
  6. 6.12 months compensation for unlawful termination – USD 136,200
  7. 7.30 days of unused leave equivalent to USD 11,350
  8. 8.USD 233,316.86 as part of his share of the shares forming part of his contract
  9. 9.Costs of the suit to the Claimant
  10. 10.Interest at court rates on the sums in (b), (c), (d), (e), (f), (g) and (h) above from the date of judgment till payment in full

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 45, 46(h), 49) and Articles 27 and 41 of the Constitution

Relief refused

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Damages for defamation

The Claimant did not prove defamation

p. 10

Severance pay

Severance pay arises only in redundancy, which was not the case; not included in the final orders

Costs

Costs of the suit to the Claimant, payable by the Respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Where disciplinary process is commenced purely for the ulterior motive of ensuring a dismissal, such disciplinary process cannot be said to be fair or lawful in terms of section 41 of the Employment Act.
p. 8ulterior motive vitiating disciplinary process
Only a cruel and sadistic employer can deny a person the necessary accommodation to ensure dignity for loved ones who are terminally ill. Compassionate leave is called compassionate for that simple reason.
p. 8compassionate leave and discrimination
I thus find and hold that the joinder of the 2nd to 8th Respondents was not only necessary but rather appropriate given the central role they played in ensuring the denial of employee benefits connected to the shares the Claimant was entitled to.
p. 10joinder of directors and trustees
It is therefore my finding that the vehicle was a term of the contract and the mere fact that it was under a car hire agreement does not detract from its intent and purpose. It was a term of the contract.
p. 10vehicle as contractual emolument
The Claimant did not prove defamation and is not entitled to recover on the claim.
p. 10defamation claim refused
In the final analysis it is my finding that the Claimant is entitled to:
p. 10final orders/disposition
Interest at court rates on the sums in (b), (c), (d), (e), (f) (g) and (h) above from the date of judgment till payment in full.
p. 10interest and final orders

Issues in the judgment

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minor

The court found the medical reports supported the claim but described them in contradictory terms

minor

Typographical errors in the judgment including 'Article 27 ad 41' and 'parre materia'

minor

Claimant sought severance pay of USD 36,482 and 4.5 months' interrupted annual leave of USD 51,075, but neither appears in the final orders nor is expressly refused with reasons

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, "Neser v Globology Limited & 7 others (Cause E033 of 2024) [2025] KEELRC 1777 (KLR)", Case Analysis (2025). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1777/eng@2025-06-19

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