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ELRCPartially AllowedMemorandum of Claim dated 29th July 2021· [2025] KEELRC 2042 (KLR)

Gitonga v Karanja Njenga Advocates (Employment and Labour Relations Cause E625 of 2021) [2025] KEELRC 2042 (KLR)

Employment and Labour Relations Court
4 July 2025
4,952 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that even when an employee absconds, firing them without a hearing still makes the dismissal unfair, entitling them to notice pay.

What this practically means

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Executive summary

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The claimant, an advocate employed by the respondent law firm on 8th January 2018 at a gross monthly salary of Kshs. 135,874, sued alleging that her services were verbally terminated upon her return from maternity leave, and sought a declaration of procedural unfairness, one month's notice pay, damages for discrimination of Kshs. 3,000,000, maximum compensation for unfair termination of Kshs. 1,630,488 and a certificate of service. The respondent countered that the claimant absconded after her 90-day maternity leave lapsed on 21st December 2018, only reappearing on 12th February 2019, and filed a counterclaim for general damages alleging she operated a parallel law firm in conflict of interest. The court framed four issues: fairness of termination, discrimination, entitlement to reliefs, and the counterclaim. On the evidence, including biometric records and the claimant's admissions, the court found she never reported back after maternity leave and absconded, which was a substantively valid reason. However, the employer failed to comply with section 41 of the Employment Act by making no effort to confront her or notify her of the intended termination, rendering the termination procedurally unfair. The discrimination claim failed because the claimant did not establish a prima facie case of differential treatment on account of pregnancy; emails showed pre-existing friction and the single call to a meeting was not unreasonable. Compensation beyond notice pay was refused given the abscondence and short service. The counterclaim failed for want of proof of operation of the parallel firm. Judgment was entered for the claimant for one month's notice pay, costs with interest, and a certificate of service, with 30 days' stay of execution.

Key legal issues

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01

Whether the termination was fair

Holding

The termination on grounds of absconding was substantively valid but procedurally unfair because the employer failed to comply with section 41; claimant awarded one month notice pay.

Reasoning

The court found on the evidence, including biometric records, that the claimant never reported back after maternity leave and thus absconded, which was a valid reason under section 44. However, the employer made no effort to conduct her or inform her of the intention to terminate as required by section 41, so the procedural limb failed and the claimant was awarded one month's notice pay for that flaw.

p. 5
02

Whether there was discrimination on grounds of pregnancy

Holding

No discrimination proved; the claim for discrimination failed.

Reasoning

The claimant bore the prima facie burden of showing differentiation or prejudicial treatment compared to other employees. Emails showed conflict predated the maternity leave, the call to a meeting was not unreasonable, the claimant did not attend it, and she suffered no adverse effect since her salary continued. Discrimination was left to deserving cases.

p. 9
03

Whether the claimant was entitled to compensation

Holding

Compensation beyond notice pay refused.

Reasoning

The claimant absconded, had worked for less than a year, had registered a rival law firm during employment, and had many issues in the employment; the court found she did not deserve compensation outside the notice pay.

p. 9
04

Whether the respondent's counterclaim was merited

Holding

Counterclaim dismissed.

Reasoning

Other than registration of the law firm during employment, there was no evidence that the claimant operated the firm while employed, proving conflict of interest or loss of revenue. The counterclaim was not proved on a balance of probabilities.

p. 10

Legal principles established

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  • Fairness of termination requires both substantive fairness as to reasons and procedural fairness under section 41 of the Employment Act
  • An employer must take procedural steps under section 41 even where the employee absconds; failure renders the termination procedurally unfair
  • Mere differential treatment does not amount to discrimination; the claimant must show unreasonable or arbitrary differentiation linked to a protected ground

Court orders

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  1. 1.Notice pay of 1 month Kshs. 135,874/-
  2. 2.Cost of the suit with interest at court rate from the judgment date
  3. 3.Certificate of service to issue under section 51 of the Employment Act
  4. 4.30 days stay of execution granted
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act over unfair termination and discrimination claims

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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

Cite this brief

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Cite this brief

Caselaw, "Gitonga v Karanja Njenga Advocates (Employment and Labour Relations Cause E625 of 2021) [2025] KEELRC 2042 (KLR)", Case Analysis (2025). Memorandum of Claim dated 29th July 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2042/eng@2025-07-04

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