Njuguna v Kiu Construction Company Limited (Cause 1742 of 2015) [2025] KEELRC 3008 (KLR)
The bottom line
#A Kenyan court ruled that indefinitely suspending a driver without pay or a completed hearing was unfair dismissal, awarding him KShs 211,629.60.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant's services were terminated
The indefinite suspension amounted to constructive dismissal/summary dismissal; the alleged termination letter of 10th October 2015 was inadmissible as an afterthought
The respondent denied termination in its response and witness statement, yet later produced a termination letter dated 10th October 2015. Applying the principle that parties are bound by pleadings (Raila Odinga v IEBC as applied by Ndolo J), the court found the letter contradicted the pleadings and was an inadmissible afterthought. The indefinite suspension without pay and the abandoned disciplinary process left the claimant in limbo, amounting to constructive dismissal.
Whether the termination was fair
The termination was wrongful and procedurally unfair; the disciplinary process aborted and there was no hearing under section 41
Under sections 43 and 45 of the Employment Act the employer must prove valid reasons and fair procedure. The accusation of absconding in the show-cause letter was not proved on a balance of probabilities; the respondent never called the claimant for a hearing after his response; there was no cross-examination of the claimant on termination; RW1 was unsure whether the claimant was heard. The process under section 41 was never completed, so the termination was substantively and procedurally unfair.
Entitlement to relief
Notice pay, 18 months' leave pay and 6 months' compensation awarded; overtime and service pay disallowed
Notice pay was due for lack of procedural fairness. Leave pay was limited to 18 months under section 28(4) since the claimant never applied for leave. Overtime failed for want of specificity, the burden resting on the employee (Rogoli Ole Manadiegi v General Cargo Services Ltd). Service pay was disallowed because the claimant was under NSSF. Compensation under section 49 was fixed at 6 months' salary considering the suspension letter on record, 5 years of service, unproved overtime, and the claimant's employability as a driver.
Legal principles established
#- Parties are bound by their pleadings and evidence inconsistent with pleadings must be disregarded; a document introduced after pleading the contrary is an inadmissible afterthought
- An indefinite suspension without pay amounting to abandonment of the disciplinary process constitutes constructive dismissal
- The burden of establishing hours or days served in excess of the legal maximum for an overtime claim rests with the employee
Court orders
#- 1.Notice pay in lieu - Kshs. 24,897.60
- 2.Leave pay in lieu equivalent of 18 months - Kshs. 37,346.40
- 3.Compensation for unfair termination equivalent of 6 months' gross salary - Kshs. 149,385.60
- 4.Total sum awarded of Kshs. 211,629.60 plus costs of the suit, payable with interest at court rate from date of judgment
- 5.Stay of 30 days granted
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (termination of employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njuguna v Kiu Construction Company Limited (Cause 1742 of 2015) [2025] KEELRC 3008 (KLR)", Case Analysis (2025). Statement of Claim dated 17th September 2015 (ELRC Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3008/eng@2025-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.