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ELRCPartially AllowedCause No E025 of 2023· [2025] KEELRC 2050 (KLR)

Simiyu v Buke Tours & Safaris Limited & another (Cause E025 of 2023) [2025] KEELRC 2050 (KLR)

Employment and Labour Relations Court
10 July 2025
BMB. O. M. Manani
4,617 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court confirmed an employer can have valid reasons to sack an employee but still lose the case for skipping a proper hearing.

What this practically means

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Executive summary

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The Claimant sued the two Respondents, affiliated companies, challenging the termination of his contract of service on 2nd September 2022. He alleged unfair termination without a hearing, non-payment for services rendered to the 2nd Respondent, denial of annual leave and unpaid overtime. The Respondents maintained that the Claimant was engaged in a competing family business, admitted the conflict, and was terminated after disrupting a meeting convened to discuss the investigation report. The court framed three issues: joint employment, legitimacy of the termination, and entitlement to reliefs. On the first, the court held that despite the affiliate relationship, the Respondents are distinct legal entities (applying Salomon v Salomon and the Barclays line of authority), and that under the contract dated 1st March 2022 the Claimant was an employee of the 1st Respondent alone; performing tasks for the 2nd Respondent did not make him that company's employee. On the second, the court found the 1st Respondent had genuine grounds under section 43(2) of the Employment Act to believe the Claimant was promoting his family business using the Respondents' materials, but that the termination was procedurally unfair because no formal disciplinary hearing under section 41 was conducted; the meetings held did not qualify because the Claimant was never notified termination was under consideration. On reliefs, the court declared the termination procedurally unfair and awarded three months' salary (Ksh. 288,000.00) as compensation, Ksh. 58,540.00 in contractual benefits under clauses 7(d) and (g), interest, costs against the 1st Respondent, and a Certificate of Service. Salary for the unexpired term, pay in lieu of notice, leave commutation and compensation for services to the 2nd Respondent were declined. Judgment was delivered online on 10th July 2025 by Manani J.

Key legal issues

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01

Identity of the employer at the time of termination

Holding

The Claimant was an employee of the 1st Respondent alone, not jointly employed by both Respondents, despite performing some tasks for the 2nd Respondent.

Reasoning

The parties are distinct legal entities per Salomon v Salomon. The contract dated 1st March 2022 was with the 1st Respondent for a one-year fixed term and contained nothing suggesting concurrent employment by the 2nd Respondent. Following the Barclays decisions, performing tasks for a related company does not convert one into that company's employee; employment follows the contract of service.

p. 5
02

Validity of the reason for termination

Holding

The 1st Respondent had legitimate grounds to consider terminating the contract, as the Claimant had been posting the Respondents' photographs on his family business website without permission.

Reasoning

The investigation report showed conduct capable of casting aspersions on the Claimant's loyalty. Under section 43(2) of the Employment Act, an employer may act on genuine grounds to believe an employee is engaged in misconduct and need not possess infallible evidence before acting, as stated in the Kenya Revenue Authority v Reuwel Waithaka Gitahi decision.

p. 6
03

Fairness of the termination procedure

Holding

The termination was procedurally unfair because the Claimant was not accorded a formal disciplinary hearing under section 41 of the Employment Act.

Reasoning

Although meetings were held in June, July and September 2022, there was no evidence they were intended as disciplinary sessions or that the Claimant was notified termination was under consideration. If the Claimant disrupted the 2nd September 2022 meeting, the 1st Respondent could still have invited him to a formal disciplinary hearing at a future date but did not.

p. 7
04

Quantum of compensation and other reliefs

Holding

Compensation of three months' salary (Ksh. 288,000.00) was awarded, together with Ksh. 58,540.00 in contractual benefits, interest, costs and a Certificate of Service; salary for the unexpired term, pay in lieu of notice, leave commutation and payment for services to the 2nd Respondent were declined.

Reasoning

Compensation and salary for the unexpired term cannot be awarded concomitantly as that would be double compensation. With approximately four months remaining on the fixed-term contract with no renewal expectancy, three months' compensation was appropriate. Notice pay was paid, leave was taken, and claims for services to the 2nd Respondent lacked evidentiary foundation.

p. 7

Legal principles established

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  • Affiliate companies are distinct legal entities and deployment to work for a related company does not change the identity of the employer; the employer is the party to the contract of service.
  • An employment relationship exists only where a person offers service in return for an agreed wage or salary.
  • An employer need only have genuine grounds to believe an employee is guilty of misconduct under section 43(2) of the Employment Act; infallible evidence is not required.
  • Meetings with an employee do not amount to a disciplinary hearing under section 41 unless the employee was notified that termination was under consideration.

Court orders

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  1. 1.Declaration that the decision to terminate the Claimant's contract of service is procedurally unfair.
  2. 2.The 1st Respondent to pay the Claimant compensation for unfair termination equivalent to three months' salary, Ksh. 288,000.00.
  3. 3.The 1st Respondent to pay the Claimant Ksh. 58,540.00 being benefits due under clauses 7 (d) and (g) of the contract dated 1st March 2022.
  4. 4.The 1st Respondent to pay interest on the amount awarded at court rates from the date of the decision.
  5. 5.The amount awarded is subject to the applicable statutory deductions.
  6. 6.The 1st Respondent to pay the Claimant's costs of the case.
  7. 7.The 1st Respondent to issue the Claimant with a Certificate of Service.

Authorities

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Legislation

  • Employment ActSection 2 (definition of 'employee')
  • Employment ActSections 41, 43, 44 and 45
  • Employment ActSection 43(2)
  • ELRC Procedure RulesRule 28(3)

Cases cited (6)

  • Salomon v. Salomon & Company Ltd
    (1895-95) All ER Rep 33
  • Kamurasi v Absa Bank Kenya PLC & another
    (Employment and Labour Relations Cause E612 of 2021) [2023] KEELRC 3229 (KLR)
  • Gladys Muthoni Mwangi & 20 Others v Barclays Bank of Kenya Limited & Another
    [2016] eKLR
  • Barclays Bank of Kenya Ltd & another v Gladys Muthoni & 20 others
    [2018] eKLR
  • Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others
    [2019] eKLR
  • Ambogo v Sameer Agriculture and Livestock (Kenya) Limited
    (Employment and Labour Relations Cause 199 of 2022) [2023] KEELRC 2257 (KLR)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (specific constitutional provision not 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, "Simiyu v Buke Tours & Safaris Limited & another (Cause E025 of 2023) [2025] KEELRC 2050 (KLR)", Case Analysis (2025). Cause No E025 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2050/eng@2025-07-10

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