Fund v Wesonga (Appeal E006 of 2024) [2025] KEELRC 2608 (KLR)
The bottom line
#A Kenyan court upheld unfair dismissal compensation for an employee denied case details, but scrapped extra awards for gratuity and defamation.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal on sexual harassment charges was procedurally and substantively fair
The dismissal was unfair and unlawful because the appellant failed to supply the particulars of the charges, the identity of the complainant, and the investigation report, and had pre-determined the outcome.
The show-cause letter did not name the alleged victim or disclose when and where the alleged harassment occurred. The respondent requested particulars but was denied them. He was invited to a disciplinary hearing before the appellant considered his reply, evidencing a pre-determined mind. The complainant neither attended the hearing nor testified at trial, denying the respondent any cross-examination, and the investigation report was never availed to him.
Whether the award of 12 months' gross salary as compensation was excessive
The award was upheld as not excessive given the appellant's conduct and the respondent's about five years of service.
Section 49 factors apply. The appellant prejudiced the defence by withholding particulars and not calling the complainant. The respondent had served about five years, there was no evidence of re-employment, no plea for reinstatement and no willingness to re-engage. The pre-determined disciplinary process further justified the award.
Whether the gratuity award of Kshs1,496,016/= was payable
The gratuity award was set aside as there was no contractual or CBA entitlement.
Gratuity is a gratuitous payment, not an automatic right, payable only if provided in the contract or at the employer's discretion. The letter of appointment of 1st January 2017 made no provision for gratuity and there was no addendum or CBA evidencing an entitlement.
Whether general damages for defamation of Kshs1,000,000/= were awardable
The defamation award was set aside because defamation was neither pleaded with particulars nor proved.
No particulars of defamation were pleaded in the memorandum of claim and no evidence was adduced in support. The award lacked evidential support and legal foundation, and the tort of defamation was not proved.
Legal principles established
#- A fair hearing in disciplinary processes requires that an employee be furnished with the particulars and identity of the accuser and allegations, failing which the process offends natural justice and Sections 41 and 43 of the Employment Act.
- Gratuity is not an automatic right; it is payable only if contractually provided or at the employer's discretion.
- General damages for defamation cannot be awarded where defamation was neither pleaded with particulars nor proved.
- A first appellate court must re-evaluate the evidence and arrive at its own conclusions.
Court orders
#- 1.This appeal is hereby partially allowed in the terms set out in the judgment.
- 2.The award of Kshs1,496,016/= for gratuity is hereby set aside.
- 3.The award of Kshs1,000,000/= in damages for alleged defamation is hereby set aside.
- 4.Each party shall meet own costs in this appeal.
- 5.The other orders made by the lower trial court are hereby upheld and affirmed.
- On appeal from
- Magistrates' Court (Busia)
- Busia MC E&LRC No. E6 of 2021
- Jurisdiction invoked
- First appellate jurisdiction of the ELRC over appeals from the magistrates' courts in employment and labour relations matters
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fund v Wesonga (Appeal E006 of 2024) [2025] KEELRC 2608 (KLR)", Case Analysis (2025). ELRC Appeal (Kakamega) against Busia MC E&LRC No. E6 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2608/eng@2025-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.