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ELRCPartially AllowedNot stated in the judgment as provided· [2025] KEELRC 2614 (KLR)

Ojenge v Mabati Rolling Mills Ltd (Employment and Labour Relations Cause E018 of 2025) [2025] KEELRC 2614 (KLR)

Employment and Labour Relations Court
29 September 2025
4,091 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an employee's dismissal was substantively justified but procedurally unfair because the employer withheld the investigation report before the hearing.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 9th March 2016 and rising to Service Centre Co-ordinator, was summarily dismissed on 4th November 2024 over missing stock valued at about Kshs. 36.9 million, including goods belonging to customer Cecypo Ltd, at the Kisumu service centre. She claimed unfair termination, an unexplained salary deduction of Kshs. 99,907.60, twelve months' compensation, general damages for alleged unauthorised use of her name (passing off), and a certificate of service. The court found the respondent had a valid and fair reason to terminate: the claimant had delegated stock management to the Dispatch Officer, failed to enquire how 105 pieces left the godown without documentation, allowed comingling of customer stock, and failed to file weekly reports, justifying dismissal for gross misconduct under Section 44(4)(c). However, on procedure, the respondent withheld from the claimant a copy of the investigation report and her recorded statement, breaching her right to a fair hearing and rendering the termination procedurally unfair under Sections 41 and 45. Judgment was entered for the claimant: a declaration that termination was unfair; compensation of two months' gross salary (Kshs. 226,448) under Section 49(1)(c), reflecting her service length, clean record, failure to appeal, and contribution to the dismissal; and a certificate of service under Section 51. The deduction and passing-off claims failed for lack of proof. Each party bore its own costs.

Key legal issues

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01

Validity of the reason for termination

Holding

The respondent had a genuine and reasonable basis to believe the claimant's negligence and comingling of customer stock constituted gross misconduct under Section 44(4)(c) of the Employment Act.

Reasoning

The claimant admitted she did not enquire how 105 pieces left the godown, that comingling occurred, and that she failed to file weekly stock reports. Under Section 43 the employer need only show reasons it genuinely believed to exist; the band of reasonable responses test applies. The court found the respondent could not be faulted for believing it had genuine grounds for gross misconduct.

p. 6
02

Procedural fairness of the disciplinary process

Holding

Termination was procedurally unfair because the respondent failed to avail the claimant a copy of the investigation report and her recorded statement before the hearing.

Reasoning

Although notice to show cause, response, hearing, minutes and appeal rights were substantially complied with under Section 41, an employee facing specific charges is entitled to the evidence and documents the employer intends to rely on. RW1 and RWII admitted the investigation report was not given to the claimant. This non-availment tainted the hearing, meaning the employer did not act in accordance with justice and equity under Section 45(4)(b).

p. 8
03

Entitlement to reliefs

Holding

Declaration granted; compensation limited to two months' salary; certificate of service due under Section 51; deduction and passing-off claims failed.

Reasoning

Compensation under Section 49(1)(c) considered the claimant's 8 years 7 months of service, absence of prior misconduct, failure to appeal, and her substantial contribution to the termination. The deduction was explained as payment for days not worked, and the passing-off claim lacked particulars and evidence of detriment.

p. 8

Legal principles established

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  • For a fair termination the employer must show both a valid and fair reason and a fair procedure.
  • The employer need only prove reasons it genuinely believed to exist, on a balance of probability.
  • Failure to avail to an employee a copy of the investigation report relied on for disciplinary charges violates the right to fair hearing and vitiates the disciplinary process.

Court orders

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  1. 1.Declaration that termination of employment was unfair.
  2. 2.Equivalent of two (2) months salary Kshs. 226,448.00.
  3. 3.Certificate of service.
  4. 4.Parties shall bear their own costs.

Authorities

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Legislation

  • Employment ActSection 45(4)
  • Employment ActSection 45
  • Employment ActSection 43(1) and (2)
  • Employment ActSection 44(4)(c)
  • Employment ActSection 45(2)(c)
  • Employment ActSection 41
  • Employment ActSection 45(5)
  • Employment ActSection 49(1)(c)
  • Employment ActSection 51
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Halsbury's Laws of England, 4th Edition Vol. 16(B) paragraph 642Band of reasonable responses test

Cases cited (18)

  • Felix Mbolonzi Kioko V. Director of Public Prosecution
    (2020) eKLR
  • Wanyera V. Central Isido Investment Ltd
    (2024) KEELRC 596 (KLR)
  • Sawe V. Ekaterra Tea Kenya PLC
    (2024) KEELRC
  • Kamundia V National Cement Company Ltd
    [2025] eKLR
  • Thomson Kerongo & 2 Others V James Omariba Nyaoga & 3 Others
    [2017] eKLR
  • Mary Chemweno Kiptui V Kenya Pipeline Co. Ltd
    [2014] eKLR
  • George Musamali V G4S Security Services (Kenya) Ltd
    [2016] eKLR
  • Howard Andrew Nyerere V Kenya Airways Ltd
    [2013]
  • Walter Ogal Anuro V Teachers Service Commission
    (2013) eKLR
  • Naima Khamis V Oxford University Press (EA) Ltd
    (2017) eKLR
  • Galgalo Jarso Jillo V Agricultural Finance Corporation
    (2021) eKLR
  • Kenya Revenue Authority V. Revwel Waithaka Gitahi & 2 Others
    (2019) eKLR
  • British Leyland (UK) Ltd V Swift
    (1981) IR LR 91
  • Pius Machafu Isindu V. Lavington Security Guards Ltd
    (2017) eKLR
  • Jane Samba Mukala V Ol Tukai Lodge Ltd
    (2013) eKLR
  • Postal Corporation of Kenya V Andrew K. Tanui
    (2019) eKLR
  • Ol Pejeta Ranching Co. Ltd V David Wanjau Muhoro
    (2017) KECA 329 (KIR)
  • Regent Management Ltd V Wilberforce Ojiambo Oundo
    (2018) KECA 883 (KLR)
Jurisdiction invoked
First-instance claim under the Employment Act for unfair termination (Sections 41, 43, 45, 49 and 51 of the Employment Act)

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, "Ojenge v Mabati Rolling Mills Ltd (Employment and Labour Relations Cause E018 of 2025) [2025] KEELRC 2614 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2614/eng@2025-09-29

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