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ELRCPartially AllowedStatement of Claim dated 17th September 2015 (ELRC Nairobi)· [2025] KEELRC 3008 (KLR)

Njuguna v Kiu Construction Company Limited (Cause 1742 of 2015) [2025] KEELRC 3008 (KLR)

Employment and Labour Relations Court
30 October 2025
9,687 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~39 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, a truck driver employed by the respondent on 5th July 2010 at a monthly salary of Kshs. 24,897.00, sued after being suspended indefinitely without pay by a letter dated 6th July 2015 following an alleged abscondment and refusal to drive a defective lorry. He responded to a show-cause notice but received no further communication, and after two unanswered demand letters through his advocate treated the suspension as dismissal, claiming Kshs. 2,116,456.40 plus interest and costs. The respondent denied terminating him, asserting he absconded and that he was only suspended; it later produced a termination letter dated 10th October 2015. The court framed three issues: whether services were terminated, whether the termination was fair, and entitlement to relief. Applying the principle that parties are bound by their pleadings, the court held the 10th October 2015 termination letter contradictory to the response and witness statement, and therefore an inadmissible afterthought; the indefinite suspension amounted to constructive dismissal. On fairness, the respondent failed to prove a valid reason or complete the section 41 disciplinary process, rendering the termination wrongful and procedurally unfair. On relief, the court awarded notice pay of Kshs. 24,897.60, leave pay for 18 months of Kshs. 37,346.40 (the claimant having never applied for leave), and compensation of six months' salary (Kshs. 149,385.60), totalling Kshs. 211,629.60. Overtime and service pay were disallowed for want of proof and because the claimant was under NSSF. Judgment with interest and costs to the claimant; 30 days' stay granted. Dated 30th October 2025, J.W. Keli, Judge.

Key legal issues

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01

Whether the claimant's services were terminated

Holding

The indefinite suspension amounted to constructive dismissal/summary dismissal; the alleged termination letter of 10th October 2015 was inadmissible as an afterthought

Reasoning

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.

p. 6
02

Whether the termination was fair

Holding

The termination was wrongful and procedurally unfair; the disciplinary process aborted and there was no hearing under section 41

Reasoning

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.

p. 10
03

Entitlement to relief

Holding

Notice pay, 18 months' leave pay and 6 months' compensation awarded; overtime and service pay disallowed

Reasoning

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.

p. 16

Legal principles established

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  • 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

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  1. 1.Notice pay in lieu - Kshs. 24,897.60
  2. 2.Leave pay in lieu equivalent of 18 months - Kshs. 37,346.40
  3. 3.Compensation for unfair termination equivalent of 6 months' gross salary - Kshs. 149,385.60
  4. 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. 5.Stay of 30 days granted

Authorities

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Legislation

  • Employment Act, 2007Sections 10(7), 28(1)(a), 28(4), 35, 36, 41, 42(1), 43, 44(1), 44(3), 44(4)(c) and (e), 45, 47(5), 49, 49(1)(a), 49(1)(c), 49(4)
  • Retirement Benefits Actreferenced in section 35(6) context (registered pension or provident fund scheme)
  • Civil Procedure ActSection 27
  • Civil Procedure RulesRule 3
  • Constitution of Kenya, 2010Articles 41 and 47

Cases cited (21)

  • BNM v BNM
    Milimani HCC E007 of 2025
  • Daniel Otieno v South-Nyanza Sugar Co. Ltd
    (2018) eKLR
  • Kenya Building, Construction, Timber and Furniture Industries, Employees Union v Slumberland Kenya Ltd
    Nairobi ELRC No. E573/2022
  • Raila A. Odinga v Independent Electoral & Boundaries Commission & 2 others
    (2017) eKLR
  • Consolata Wawira v Betty Kyalo
    Milimani HCCA E707 of 2023
  • CMC Aviation Ltd v Mohammed Noor
    (2015) eKLR
  • Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited
    [2013] eKLR
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
  • Masaba v Teachers Service Commission & another
    [2024] KEELRC 2232 (KLR)
  • Kenfreight (E.A.) Ltd v Benson Nguti
    SC Pet. No. 37 of 2018 [2019] eKLR
  • Kenya Broadcasting Corporation v Geoffrey Wakio
    [2019] eKLR
  • Wilberforce Kimungui v United Aryan (EPZ) Ltd
    [2022] eKLR
  • KUDHEIHA v BOM Lirhanda Girls High School
    [2023] KEELRC 2519 (KLR)
  • Radar Limited v Ali & another
    [2024] KEELRC 1421 (KLR)
  • Togom v Radar Limited
    ELRCA No. E003 of 2023
  • H. Young & Company (E.A) Ltd v Okoth & another
    [2025] KECA 466 (KLR)
  • G4S Kenya Limited v Khawanga
    (Employment and Labour Relations Appeal E046 of 2022) [2024] KEELRC 13202 (KLR)
  • DGM v EWG
    [2021] eKLR
  • Rogoli Ole Manadiegi v General Cargo Services Ltd
    (2016) eKLR
  • Olpejeta Ranching Limited v David Wanjau Muhoro
    (2017) eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (termination of employment claim)

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, "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.