Kamau v Chuna Sacco Society Ltd (Cause 1043 of 2021) [2025] KEELRC 2413 (KLR)
The bottom line
#A Kenyan court ruled an accountant's dismissal unfair because the employer withheld key documents, gave too little preparation time, and couldn't prove its reasons.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the summary dismissal
The dismissal was procedurally unfair: the Respondent denied an adjournment without any timetable basis in its HR Manual or CBA, refused access to the forensic audit report and the accounts system, and gave inadequate time to prepare.
The employer invoked HR Manual and CBA deadlines to refuse an adjournment but did not produce the Manual or identify any clause imposing timelines. The disciplinary committee resolved to consider the Claimant's requests for system access and the forensic audit report but never reverted. The gravity and complexity of the accusations required access to statements and the audit report; supervised access was feasible even for sensitive documents. Documents emailed at 6pm on 8th April left one day before the 10th April hearing, which the Court held was inadequate preparation.
Substantive fairness - burden of proving reasons under ss. 43 and 45(2)
The summary dismissal was substantively unfair because the Respondent failed to prove the reasons, tendering only incomplete audit extracts and no job description linking the Claimant to the impugned transactions.
Section 43 places the duty of proving the reason on the employer; section 45(2) requires that the reasons be fair and valid. The Claimant had no job description and could be assigned duties day-to-day, so the Respondent had to show on a balance of probabilities that the accused omissions were his responsibility. The excerpts of the forensic audit report did not establish guilt. The final report was dated 13th July 2022, after the dismissal, and was prepared in anticipation of litigation. An adverse inference was drawn from the withheld full report.
Entitlement to reliefs
The Claimant was awarded five months' gross salary as compensation for unfair dismissal, unpaid interdiction-period salary, three months' notice pay and a certificate of service; defamation damages were refused.
Compensation under section 49(1)(c) is discretionary; the Court considered the Respondent's non-compliance with procedural and substantive fairness obligations, its selective production of evidence, and the Claimant's six-and-a-half years of service in awarding five months' gross salary. Notice pay followed the three months' notice entitlement in the CBA, the dismissal having been without notice. Unpaid interdiction salary was awarded because the Respondent was still calling the Claimant for his dues as late as 8th May 2023. Defamation failed for want of evidence.
Legal principles established
#- An employer seeking to dismiss must accord the employee an adequate opportunity to prepare, including access to relevant documents; a reasonable employer could allow supervised access to sensitive material.
- Where a party withholds a relevant document, the court may draw an adverse inference that its production would have been prejudicial to that party.
- It is not enough for an employer to state a reason for termination; the employer must demonstrate on a balance of probabilities that the reason existed and was fair and valid.
Court orders
#- 1.A declaration that the summary dismissal against the Claimant was unfair
- 2.Compensation pursuant to Section 49(1)(c) of the Employment Act, five months' gross salary, KShs. 587,120
- 3.Unpaid salary during the time the Claimant was under interdiction, KShs. 293,660
- 4.Notice pay, three months' salary, KShs. 352,272
- 5.A certificate of service to issue in the Claimant's favour
- 6.Interest on the sums awarded at court rates from the date of judgment till full payment
- 7.Costs of the suit to the Claimant
- Jurisdiction invoked
- Employment Act, 2007 (ss. 41, 43, 45(2), 49(1)(c)); first-instance employment claim under the Court's employment and labour relations jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamau v Chuna Sacco Society Ltd (Cause 1043 of 2021) [2025] KEELRC 2413 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2413/eng@2025-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.