Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No E091 of 2024· [2025] KEELRC 2012 (KLR)

Nannungi v Kimondo Gachoka & Company Advocates (Cause E091 of 2024) [2025] KEELRC 2012 (KLR)

Employment and Labour Relations Court
9 July 2025
JGJacob Gakeri
4,024 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court upheld a dismissal that followed proper disciplinary procedure, but awarded the employee her accrued leave pay and earned bonuses.

What this practically means

#

Executive summary

#
The claimant, an Associate Advocate engaged on a three-year fixed term contract from 1st September 2021 at the respondent law firm's Mombasa Branch, sued for unfair termination and unpaid dues following her summary dismissal on 26th October 2023. The dismissal arose from charges of non-attendance of court on 8th May 2023 and failure to take remedial steps or prove illness, failure to file an application for stay of execution pending appeal after filing a Memorandum of Appeal, and failure to defend a suit on fraud as instructed, leading to execution against the client. The respondent contested jurisdiction on territorial grounds but the court proceeded to determine the claim on the merits. Applying Sections 43 and 45 of the Employment Act and the genuine-belief standard, the court found the respondent had valid and fair reasons to terminate for gross misconduct, the claimant having admitted the core infractions and failed to exculpate herself. On procedure, the claimant received a notice to show cause, responded, and participated in the disciplinary hearing; the absence of her supervisor from the committee caused no prejudice. The court therefore upheld the termination. Reliefs were apportioned: leave pay of Kshs.137,200 for two years less 11 days utilized, and bonuses of Kshs.80,000 at Kshs.10,000 per file for 8 files were awarded, and a certificate of service ordered under Section 51. Salary in lieu of notice, compensation, overtime, service pay (barred by s.35(6) as she was a pension and NSSF member), transport reimbursement of Kshs.200,000 (unproven special damages) and general damages were all declined. Each party was ordered to bear its own costs.

Key legal issues

#
01

Whether the respondent had a valid and fair reason (substantive justification) to summarily dismiss the claimant

Holding

Yes - the respondent genuinely believed on reasonable and sufficient grounds that the claimant committed gross misconduct through non-attendance of court, failure to file stay/reinstatement applications and failure to defend a suit on fraud

Reasoning

The court applied Sections 43 and 45 of the Employment Act and s.43(2)'s genuine-belief standard, adopting the balance-of-probability threshold from KRA v Waithaka. The claimant admitted the key infractions in cross-examination and the disciplinary committee found her culpable. The range of reasonable responses test showed a reasonable employer would have acted likewise.

p. 6
02

Whether the procedure adopted was fair under Section 41 of the Employment Act

Holding

Yes - the claimant was notified, responded to the notice to show cause, attended and participated in the disciplinary hearing, and the absence of her immediate supervisor from the committee caused no prejudice

Reasoning

The court set out the four Section 41 elements: explanation in a language understood, reason for consideration, entitlement to accompaniment, and hearing of representations. It found the charges were documentary-based, the claimant appeared alone by choice, and she did not challenge the committee's competency. Prejudice from the supervisor's absence was not shown.

p. 7
03

Entitlement to the accrued reliefs claimed

Holding

Leave pay for 2 years less 11 days (Kshs.137,200) and bonuses at Kshs.10,000 per file for 8 files (Kshs.80,000) awarded; certificate of service ordered; all other reliefs declined

Reasoning

Leave records showed 11 days utilized in 2023, so accrued leave pay was computed. Bonus was admitted as earned on dismissed files though discretionary; the maximum being Kshs.15,000, Kshs.10,000 per file was held reasonable. Service pay was barred by s.35(6); transport reimbursement was unproven special damages; general damages are not available in employment claims.

p. 8

Legal principles established

#
  • For a termination to pass the fairness test, the employer must demonstrate both substantive justification and fair procedure
  • The standard of proof for the employer's reasons for termination is on a balance of probability, being the reasons the employer genuinely believed to exist
  • Section 41 of the Employment Act sets the minimum standards of fair procedure before termination on grounds of misconduct
  • Burden of proving unfair termination rests on the employee, while the burden of justifying the grounds rests on the employer
  • Service pay is not payable to an employee who is a member of a pension scheme

Court orders

#
  1. 1.Unpaid leave days awarded at Kshs.137,200.00
  2. 2.Bonuses awarded at Kshs.80,000.00 (total award Kshs.217,200.00)
  3. 3.Respondent to issue the claimant a certificate of service
  4. 4.Each party to bear their own costs

Authorities

#

Legislation

  • Employment ActSections 41, 43, 43(2), 45, 47(5), 35(6), 51
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticles 159(2)(d), 48
  • Civil Procedure ActSection 1B

Cases cited (15)

  • Kenfreight (EA) Ltd v Benson K. Nguti
    [2016] eKLR
  • Council of Civil Servants Union v Minister of Civil
    [1985] AC 2
  • Walter Ogal Anuro v Teachers Service Commission
  • Naima Khamis v Oxford University Press (EA) Ltd
    [2017] eKLR
  • Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others
    [2019] eKLR
  • Bamburi Cement Ltd v William Kilonzi
    [2016] eKLR
  • Galgalo Jarso Jillo v Agricultural Finance Corporation
    [2021] eKLR
  • CFC Stanbic Bank Ltd v Danson Mwashako Mwakuwona
    [2015] eKLR
  • Postal Corporation of Kenya v Andrew K. Tanui
    [2019] eKLR
  • Hahn v Singh
    [1985] KLR 716
  • Richard O. Kuku v South Nyanza Sugar Co. Ltd
    [2013] eKLR
  • Coast Bus Service Ltd v Murunga & others
    NRB CA No. 192 of 1992
  • Kampala City Council v Nakaye
    [1972] EA 446
  • Ouma v Nairobi City Council
    [1976] KLR 297
  • Eldama Ravine Distributors Ltd & another v Chebon
    Civil Appeal No. 22 of 1991
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (as invoked; the judgment discusses the claimant's employment termination dispute)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Nannungi v Kimondo Gachoka & Company Advocates (Cause E091 of 2024) [2025] KEELRC 2012 (KLR)", Case Analysis (2025). Cause No E091 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2012/eng@2025-07-09

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