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ELRCDismissedNot stated in the extract· [2025] KEELRC 2690 (KLR)

H Young & Co (EA)Limited v Ndunda (Appeal E141 of 2024) [2025] KEELRC 2690 (KLR)

Employment and Labour Relations Court
30 September 2025
OKOcharo Kebira
2,442 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer cannot fairly dismiss a worker on charges never raised during the disciplinary process, the Employment and Labour Relations Court has confirmed.

What this practically means

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Executive summary

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The Respondent, a tipper driver employed by the Appellant from 11th December 2017 at its Kipevu site, was summarily dismissed on 5th July 2021 after he transported murram and hard-core to a site he believed was authorised, acting on the instructions of the Administration Officer. A disciplinary panel concluded he had acted under strict instructions and did not know the site was not the company's, yet nonetheless recommended summary dismissal partly on matters never put to him as charges. The trial Magistrate found the termination unfair under Section 45 of the Employment Act and awarded one month's salary in lieu of notice and six months' salary as compensation, totalling Kshs 402,178, while rejecting the claim for unpaid leave. On appeal, Ocharo Kebira J, applying Selle v Associated Motor Boat Co, reconsidered the evidence and identified two issues: whether the dismissal was wrongful and whether the reliefs were justified. The court held that no reasonable employer would dismiss an employee after an exculpatory disciplinary conclusion, and that dismissal on uncharged matters offended Articles 47 and 50 of the Constitution and fair administrative action. On reliefs, the compensation award was discretionary and the Appellant showed no wrong principle or misapprehension of facts to warrant interference; notice pay under sections 35 and 36 was also due. The appeal was dismissed with costs, affirming the trial court's judgment.

Key legal issues

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01

Whether the summary dismissal was substantively justified

Holding

The dismissal was unfair because the disciplinary panel's own conclusion exculpated the Respondent, having found he acted under the Administrator's instructions, and the subsequent dismissal rested on uncharged matters he was never asked to answer.

Reasoning

The disciplinary minutes recorded an exculpatory conclusion that the driver acted under strict instructions from the Administrator and did not know the site was not the company's. Having reached that conclusion, no reasonable employer would dismiss summarily. The panel's later findings on failure to relay information and personal trips were not charges in the disciplinary process, so dismissing on them breached Articles 47 and 50.

p. 5
02

Whether the award of six months' salary as compensation and one month's notice pay should be disturbed

Holding

The awards were discretionary and the Appellant failed to demonstrate any ground for interference; the Respondent was entitled to notice pay under sections 35 and 36 of the Employment Act since no notice was issued.

Reasoning

The Appellant only cited decisions and the short length of service, ignoring that courts consider numerous factors beyond longevity of service. No wrong principle, misapprehension of facts, or irrelevant considerations were demonstrated. Having found the summary dismissal unfair, the Respondent remained entitled to notice pay under section 36.

p. 6

Legal principles established

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  • Both substantive and procedural fairness under Section 45(2) of the Employment Act must be demonstrated for a summary dismissal to be fair.
  • Summary dismissal premised on matters not the subject of the disciplinary charge and which the employee was not called upon to answer offends fair administrative action and fair hearing under Articles 47 and 50 of the Constitution.
  • An appellate court will only disturb a discretionary award of compensation if the trial court acted on a wrong principle, misapprehended material facts, or took into account irrelevant factors or failed to consider relevant ones.

Court orders

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  1. 1.The Appellant's appeal is dismissed
  2. 2.Costs of the appeal awarded to the Respondent
On appeal from
Magistrates' Court (ELRC)
Memorandum of Claim dated 17th September 2021
Jurisdiction invoked
First appellate jurisdiction over the learned trial Magistrate's judgment in an employment dispute

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, "H Young & Co (EA)Limited v Ndunda (Appeal E141 of 2024) [2025] KEELRC 2690 (KLR)", Case Analysis (2025). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2690/eng@2025-09-30

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