Hesbon v Omaera Pharmaceuticals Limited (Employment and Labour Relations Cause 2176 of 2016) [2025] KEELRC 2037 (KLR)
The bottom line
#A Kenyan court ruled Omaera Pharmaceuticals unfairly fired an employee without proof of theft or a hearing, awarding him Kshs. 158,400.
What this practically means
#Executive summary
#Key legal issues
#Substantive fairness of the termination
The employer failed to prove valid reasons for the termination; neither the alleged theft nor the alleged absconding was proved
The employer alleged theft but produced no CCTV footage, inventory, minutes, police report or evidence of an investigation linking the claimant to any loss. The alternative ground of absconding was also unproved: the respondent's witness confirmed there was no evidence of any efforts made to reach the claimant. Under section 43, the employer must prove the reason for termination, failing which the termination is deemed unfair.
Procedural fairness of the termination
The termination offended section 41 of the Employment Act as there was no show cause, notification or hearing before termination
It was not disputed that no show cause letter issued for the alleged theft or absconding. RW1 confirmed there was no procedural hearing. Section 41 requires an employer to explain the reason for termination and hear and consider the employee's representations before dismissing an employee on grounds of misconduct. The employer simply replaced the claimant.
Compensation for unfair termination under section 49
The claimant was awarded the equivalent of 5 months' gross salary (Kshs. 132,000) as compensation, the court finding he did not contribute to the termination
Guided by section 49 and the Kenfreight decision, the court exercised its discretion considering the length of service (5 years 4 months and 3 days) and the single warning during employment. Since neither the alleged theft nor absconding was proved, the claimant did not contribute to the termination under section 49(4).
House allowance claim and limitation
The house allowance claim was justified but statute time-barred as a continuing injury not claimed within 12 months
The payslip showed basic pay of Kshs. 26,400 not stated as consolidated, and neither party produced the employment contract, so the Grain Pro formulation applied. However, the claim was a continuing injury under section 89 of the Employment Act, required to be filed within 12 months of cessation; the claim filed in October 2016 was outside the limit.
Claim for accrued leave pay
The claim for 21 days' accrued leave failed because the respondent proved the claimant took his 21 days' leave in 2013
The respondent produced a leave form indicating the claimant went on leave for 21 days in 2013, and RW1 confirmed the leave and the period in cross-examination. The claimant's assertion that he was told to defer leave to 2014 did not displace this documentary evidence.
Legal principles established
#- An allegation that an employee has absconded duties calls upon the employer to reasonably demonstrate that efforts were made to contact the employee without success, and to prove communication of intent to terminate on the basis of absconding
- For termination to pass the fairness test it must be shown that there was both substantive justification (a valid reason) and procedural fairness under sections 41 and 43 of the Employment Act
- Once a trial court finds termination wrongful or unfair, the only question left is the appropriate remedy under section 49 of the Employment Act, which the judge exercises at discretion
- A claim premised on a continuing injury must be filed within 12 months after cessation of the injury as provided by the limitation provisions of the Employment Act
Court orders
#- 1.Declaration that the termination of the claimant's employment is unlawful and unfair
- 2.Notice pay of Kshs. 26,400
- 3.Compensation equivalent of 5 months' salary of Kshs. 132,000
- 4.Total sum of Kshs. 158,400 payable with interest at court rates from date of judgment until payment in full
- 5.Costs of the suit to the claimant
- 6.Certificate of service to issue under section 51 of the Employment Act
- 7.Stay of 30 days granted
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claim arising out of termination of a contract of service)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hesbon v Omaera Pharmaceuticals Limited (Employment and Labour Relations Cause 2176 of 2016) [2025] KEELRC 2037 (KLR)", Case Analysis (2025). Not stated in judgment (Memorandum of Claim dated 25th October 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2037/eng@2025-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.