Buluku v Surge Energy Limited (Cause E858 of 2022) [2025] KEELRC 2847 (KLR)
The bottom line
#A Nairobi court ruled an employee's rushed dismissal was unlawful, awarding him six months' salary, notice pay, costs and interest.
What this practically means
#Executive summary
#Key legal issues
#Nature of the employment contract
The Claimant was on a two-year renewable contract commencing 1st October 2020, not permanent employment
Clause 1.2 of the contract expressly described the appointment as a renewal of employment that commenced 16th March 2017, and the agreement provided for a two-year term subject to automatic renewal. The court therefore rejected the Claimant's assertion of permanent employment as unfounded, but noted the dismissal occurred within the contract period, raising the question of wrongful dismissal.
Procedural fairness of the dismissal
The disciplinary process violated Sections 41 and 44 of the Employment Act, rendering the dismissal procedurally unfair
The Claimant was given only one day to respond to the show cause notice, the invitation to the disciplinary hearing was issued two days before the hearing over a weekend, and dismissal followed on the same day as the hearing held in his absence. This fell grossly short of the contractual 7 days' notice and the fair procedure required under Section 41 of the Employment Act.
Substantive justification for the dismissal
The dismissal was substantively unfair as the reasons were unproved and varied allegations were never put to the Claimant
The Respondent alleged absenteeism on 1st November 2021 and participation in an unlawful assembly, but its own witness admitted the Claimant was on the company premises on the day he was said to have absconded. Other allegations of arrogance and poor conduct were never formally addressed to the Claimant, so he had no opportunity to respond, defeating legality and reasonableness.
Remedies
One month's notice pay awarded as prayed; six months' salary awarded as compensation; leave claim statute-barred; certificate of service claim not addressed
Notice pay was due as the dismissal letter made no reference to notice or pay in lieu. Compensation was assessed under Sections 49 and 50 of the Employment Act considering the 13 factors in Section 49(4); the Claimant's poor record of service and the principle that compensation should not punish the employer led to six months rather than the maximum twelve. The leave claim for five years was barred by Section 89's 12-month rule.
Legal principles established
#- A disciplinary process must afford the employee sufficient time to prepare a defence; a notice period falling on a weekend and manifestly inadequate renders dismissal procedurally unfair
- Where the employer's stated reasons for dismissal were never formally put to the employee and are unproved, the dismissal is substantively unfair
- A claim for untaken leave is a continuous injury valid for only 12 months from cessation under Section 89 of the Employment Act
Court orders
#- 1.A declaration that the Claimant was wrongfully dismissed
- 2.Payment of Six (6) Months' salary in compensation for the wrongful dismissal at Kshs.656,082/-
- 3.One month salary in lieu of notice at Kshs.109,347
- 4.The Respondent shall bear the costs of the suit and interest on the compensation and notice pay from the date of judgment until payment in full
- Jurisdiction invoked
- Employment Act No. 11 of 2007 (original jurisdiction of the Employment and Labour Relations Court over employment disputes)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Buluku v Surge Energy Limited (Cause E858 of 2022) [2025] KEELRC 2847 (KLR)", Case Analysis (2025). Memorandum of Claim dated 23rd November, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2847/eng@2025-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.