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ELRCPartially AllowedELRC Claim (Amended Memorandum of Claim dated 17th October, 2023)· [2025] KEELRC 1987 (KLR)

Kenya Union of Entertainment & Music Industry Employees v Bomas of Kenya Limited (Cause 1516 of 2018) [2025] KEELRC 1987 (KLR)

Employment and Labour Relations Court
4 July 2025
CBC. N. Baari
3,622 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an employee's firing was unfair because the employer never gave him a hearing, and awarded him pay arrears and compensation.

What this practically means

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Executive summary

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The Claimant union brought an Amended Memorandum of Claim on behalf of its grievant, Evanson Ndegwa, a former general labourer and later supervisor employed by the Respondent in September 1991, challenging his termination and failure to pay terminal dues following his arrest on 31st January, 2015 for possession of scrap metal allegedly taken from the Respondent's premises without authorization. The grievant was interdicted on half pay in February 2015, prosecuted in Criminal Case No. 2504 of 2016, and acquitted on 8th April, 2020. The Respondent asserted it terminated him on 29th April, 2016 for failing to appear before the Staff Advisory Committee, while the Claimant contended he was never invited to a disciplinary hearing and only received a termination letter dated 30th June, 2023, issued upon the Court's intervention. The Respondent closed its case without calling any witness. The Court framed two issues: fairness, procedural propriety and lawfulness of the termination; and entitlement to reliefs. It held the termination procedurally unfair because the Respondent failed to prove the grievant was accorded a hearing as required by Section 41 of the Employment Act, and failed to prove valid reasons for termination, especially given the acquittal. The Court awarded a declaration of unfair termination, one month's pay in lieu of notice, three months' compensation (the grievant having contributed to his termination), half pay, house allowance and commuter allowance arrears for the interdiction period, but declined service gratuity for lack of contractual or CBA basis and declined salary for periods when no service was rendered. Each party was ordered to bear its own costs.

Key legal issues

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01

Procedural fairness of the termination

Holding

The termination was unprocedural and unfair because the grievant was not accorded a hearing

Reasoning

The Respondent claimed it invited the grievant to disciplinary hearings on two occasions, but presented no witness to prove service of the invitations. The grievant denied receiving any invitation and stated he only learnt of his termination during the hearing of the case. With no evidence from the Respondent, the grievant's unchallenged account stood, and the Section 41 procedural fairness test was held to have been failed.

p. 6
02

Substantive justification for the termination

Holding

The Respondent did not prove valid and fair grounds for the termination

Reasoning

The Respondent closed its case without calling any witness, so led no evidence to prove the validity of its reasons. Additionally, the judgment acquitting the grievant of the theft charges was produced in evidence. On this basis the court held the Respondent had not proved fair grounds for termination.

p. 6
03

Compensation for unfair termination

Holding

Three months' salary awarded as compensation because the grievant contributed to his own termination

Reasoning

Under Section 49 of the Employment Act compensation is capped at 12 months and guided by enumerated factors. The grievant admitted on cross-examination that he was found in possession of the Respondent's property without lawful authorization, so the court found he largely contributed to his own termination and awarded three months' salary.

p. 7
04

Date of termination

Holding

The court adopted 30th June, 2023 as the date of termination

Reasoning

The parties contested the termination date: the Claimant said 30th June, 2023 while the Respondent asserted a letter dated 29th April, 2016. The court noted the Respondent only issued the 30th June, 2023 termination letter upon the court's intervention, and adopted that as the operative date of termination.

p. 5

Legal principles established

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  • Procedural fairness under Section 41 of the Employment Act requires the employer to accord the employee a hearing before termination; failure to do so renders the termination unprocedural and unfair.
  • The employer bears the burden of proving valid reasons for termination; failure to lead evidence means the reasons are not justified.
  • An employee interdicted on half pay who is exculpated is entitled to the half pay and allowances withheld during the interdiction period.
  • An employee is not entitled to gratuity as a matter of course; it must be shown to be a contractual term or CBA provision.

Court orders

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  1. 1.A declaration that the grievant's services were unfairly terminated
  2. 2.An award of one (1) month salary in lieu of notice at Ksh. 36,120/-
  3. 3.An award of three (3) months salary as compensation for the unfair termination at Kshs. 108,360/-
  4. 4.Half pay arrears while on interdiction as per interdiction letter for 12 months at Kshs. 216,720/-
  5. 5.48 months house allowance arrears while on interdiction 12 months at Kshs. 151,695.36/-
  6. 6.48 months commuter allowance arrears while on interdiction 48 months at Kshs. 72,000/-
  7. 7.Parties shall bear their own costs of the suit

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45(2)(a) & (b)
  • Employment ActSection 45(4)(b)
  • Employment ActSection 49(4)
  • Employment ActSection 18(5)(a)
  • Employment ActSection 26
  • Criminal Procedure CodeSection 87(a)
  • Penal CodeSection 268(1) as read with Section 275

Cases cited (5)

  • Pius Macahfu Isindu vs Lavington Security Guards Limited
    [2017] eKLR
  • Aviation & Allied Workers Union vs Kenya Airways Limited
    [2017]
  • Dungani Vs West Kenya Sugar Company Limited
    (ELRC Appeal 12 of 2023) [2024]
  • John Karanja Mbogo v Leah Wangui t/a Gilgil Distributors Limited
    [2020] eKLR
  • Grace Gacheru Muriithi –Versus- Kenya Literature Bureau
    (2012) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (not expressly cited in the judgment)

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, "Kenya Union of Entertainment & Music Industry Employees v Bomas of Kenya Limited (Cause 1516 of 2018) [2025] KEELRC 1987 (KLR)", Case Analysis (2025). ELRC Claim (Amended Memorandum of Claim dated 17th October, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1987/eng@2025-07-04

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