Githaiga v Concordia Building & Civil Engineering Co Ltd (Cause E6471 of 2020) [2025] KEELRC 2433 (KLR)
The bottom line
#A Kenyan court ruled that firing an employee without a fair hearing and proper records costs employers over one million shillings in damages.
What this practically means
#Executive summary
#Key legal issues
#Whether the contract terminated by effluxion of time
The contract was pegged on completion of the Mitubiri project, which had not been wound up by 3rd September 2020; the effluxion-of-time contention was unsupported by evidence.
The contract did not state a fixed period but was pegged on the Mitubiri project. Evidence from both parties (the Claimant's deployment to Garisa and the client's letter of 24th July 2020) showed the project ran beyond one year. No evidence showed the project was concluded by the date of termination, so the effluxion-of-time defence failed.
Whether the termination was procedurally fair
The termination was unfair and unlawful because the Respondent did not take the Claimant through a disciplinary process as required by section 41 of the Employment Act.
The Respondent alleged the client demanded the Claimant's removal for defiance of instructions. However, no evidence showed the Respondent conducted a disciplinary process to establish the alleged defiance. The employer was obliged to afford the Claimant a hearing before terminating his contract, and absent that, the process was unlawful.
Entitlement to unpaid salary and withheld pay
The Respondent owed the Claimant unpaid salary for June to August 2020 (Ksh. 360,000.00) and unlawfully withheld Ksh. 85,000.00 of his salary.
Under sections 10(6) and 74 of the Employment Act, the employer must maintain and produce payment records. The Respondent produced no evidence that it paid the salary for the three months, nor records such as payslips under sections 20 and 21 to disprove the alleged Ksh. 17,000 monthly shortfall. The court therefore believed the Claimant's account and entered judgment accordingly.
Leave and notice entitlements
The Claimant was awarded Ksh. 120,000.00 for commuted leave and Ksh. 120,000.00 in lieu of notice.
The Respondent's witness could not confirm whether the Claimant took annual leave, and the duty to keep leave records lay with the employer, so the court believed the Claimant that leave was untaken. No evidence showed notice of termination under section 35 was issued, obliging payment in lieu under section 36.
Compensation for unfair termination
Compensation equivalent to three months' gross salary (Ksh. 360,000.00) was awarded, considering the short duration of the employment relationship.
Applying section 49 of the Employment Act, the court considered the factors for assessing compensation, in particular that the parties had not been in the employment relationship for long. Twelve months' compensation was not warranted; three months' salary was awarded instead of the anticipated future salary claimed.
Legal principles established
#- An employer must afford an employee a chance to be heard through a disciplinary process under section 41 of the Employment Act before terminating the contract; termination without such a process is unlawful.
- The employer bears the burden of maintaining and producing employment records, including pay and leave records, under sections 10(6) and 74 of the Employment Act; failure to do so means the court may believe the employee's claim.
- Where the employer gives contradictory accounts of how employment ended (effluxion of time versus removal at client's demand), the effluxion-of-time defence is unsupported and the employee remains in service at termination.
Court orders
#- 1.Declaration that the termination of the Claimant's contract was unlawful as it contravened section 41 of the Employment Act
- 2.Judgment for unpaid salary for June, July and August 2020 in the sum of Ksh. 360,000.00
- 3.Judgment for Ksh. 85,000.00 being salary unlawfully withheld
- 4.Award of Ksh. 120,000.00 as commuted leave
- 5.Award of Ksh. 120,000.00 as pay in lieu of notice
- 6.Award of Ksh. 360,000.00 as compensation for unfair termination
- 7.Award subject to applicable statutory deductions
- 8.Interest on the amounts awarded at court rates from the date of the decision
- 9.Costs of the case awarded to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Githaiga v Concordia Building & Civil Engineering Co Ltd (Cause E6471 of 2020) [2025] KEELRC 2433 (KLR)", Case Analysis (2025). Cause No E6471 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2433/eng@2025-09-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.