Koeth v Majlis Manda Island Resort Limited (Cause E009 of 2025) [2025] KEELRC 2988 (KLR)
The bottom line
#A Kenyan court dismissed a general manager's unfair termination claim because he never produced a medical certificate to justify his absence from work.
What this practically means
#Executive summary
#Key legal issues
#Whether termination of an employee absent on alleged medical grounds was unlawful and unfair
Termination was not unfair; the claimant failed to produce a medical certificate to justify his absence, and the court found he frustrated his own employment
While illness-based absence is treated separately under sections 30 and 34 of the Employment Act, the burden lies on the employee alleging illness to obtain and present a medical certificate from a recognised medical practitioner. The claimant pleaded a toothache and sought treatment in Nairobi but never annexed a medical certificate either to the employer or to the court. His uncommunicative absence as general manager of over 160 employees therefore amounted to absence without just cause.
Whether probationary employees are exempt from the procedural safeguards of section 41
No; following Monica Munira Kibuchi, an employee on probation is entitled to due process under section 41, and section 42(1) is null and void to the extent it excludes them
The court cautioned employers to treat probationary terms with great caution and adopted the three-judge bench decision in Monica Munira Kibuchi & 6 others v Mount Kenya University, which declared section 42(1) of the Employment Act unconstitutional to the extent that it denied probationary employees the hearing protections of section 41, being inconsistent with Articles 41 and 47 of the Constitution.
Whether the remedies sought (notice pay, 12 months' compensation, 8 days' salary, certificate of service) were justified
None of the remedies were awarded; the claim was dismissed in its entirety with costs to the respondent
Having found that the claimant's conduct frustrated his employment and that there was no unlawful or unfair termination, the court held that no notice pay was due and dismissed the whole claim, awarding costs to the respondent.
Legal principles established
#- An employee on probation is entitled to due process under section 41 of the Employment Act; section 42(1) is null and void to the extent it excludes probationary employees from section 41 protections
- Absence from work without permission is gross misconduct under section 44(4)(a), but such absence is subject to the mandatory hearing requirements of section 41(2) before termination
- An employee absent due to illness must obtain a medical certificate from a medical practitioner and present it to the employer; absent that, absence without just cause attracts summary dismissal under section 44(4)
Court orders
#- 1.The claim is dismissed
- 2.Costs to the respondent
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Koeth v Majlis Manda Island Resort Limited (Cause E009 of 2025) [2025] KEELRC 2988 (KLR)", Case Analysis (2025). Cause No E009 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2988/eng@2025-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.