Gitonga v Karanja Njenga Advocates (Employment and Labour Relations Cause E625 of 2021) [2025] KEELRC 2042 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the termination was fair
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.
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.
Whether there was discrimination on grounds of pregnancy
No discrimination proved; the claim for discrimination failed.
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.
Whether the claimant was entitled to compensation
Compensation beyond notice pay refused.
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.
Whether the respondent's counterclaim was merited
Counterclaim dismissed.
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.
Legal principles established
#- 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
#- 1.Notice pay of 1 month Kshs. 135,874/-
- 2.Cost of the suit with interest at court rate from the judgment date
- 3.Certificate of service to issue under section 51 of the Employment Act
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Harun v Watu Credit Limited (Cause E1054 of 2023) [2025] KEELRC 2542 (KLR)[2025] KEELRC 2542 (KLR)25 Sept 2025applied
Cite this brief
#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.