Mboga v Sameer Africa Plc (Cause E111 of 2021) [2025] KEELRC 3039 (KLR)
The bottom line
#A Kenyan court ruled the dismissal was justified for dishonesty but still unlawful because the employer botched the disciplinary hearing process.
What this practically means
#Executive summary
#Key legal issues
#Validity and fairness of the reason for termination
The Respondent proved a valid and fair reason: the Claimant admitted altering a school fees invoice, constituting dishonesty that breached the trust inherent in her senior position and justified dismissal by a reasonable employer.
The Court relied on the Claimant's admission in her response to the show-cause notice and her email that she adjusted the invoice, which lent credibility to the allegation of submitting a falsified document. Her senior position made the dishonesty fatal to the trust underlying the employment relationship. Prior incidents of inflated claims compounded the position. Applying McKinley v BC Tel and British Leyland v Swift, the Court held a reasonable employer would have dismissed her.
Procedural fairness of the disciplinary process
The termination was procedurally unfair because the Claimant was given inadequate notice of the hearing on 8th October 2019 and was refused an adjournment to allow her chosen representative to attend, contrary to Section 41 of the Employment Act.
The Respondent did not produce evidence showing sufficient notice of the new hearing date; the Claimant's assertion that she was informed the same day was uncontroverted. Her request for her representative, who was on leave, was declined despite no prejudice to the Respondent from postponement. Citing Nebert Mandala Ombajo v ICPAK, the Court held the short notice impaired her ability to mount a proper defence given the gravity of the allegations.
Alleged discrimination on grounds of gender
The discrimination claim failed: the Claimant served only in an acting capacity while her male predecessors who received vehicles were substantive holders, so they were not similarly situated and the differentiation was justified.
RW1 confirmed that Marketing Managers were entitled to a company vehicle and that all the Claimant's predecessors were male. However, the Court applied the Havi v LSK test that not every differentiation is discrimination. Since there was no evidence the Claimant was ever confirmed substantively, she was not entitled to the full benefits of the office; the differential treatment therefore had a legitimate basis.
Remedies
The Claimant received a declaration of procedural unfairness and compensatory damages of four months' gross salary (Kshs 800,000), reflecting the valid reason but flawed process; other reliefs were declined.
Because the termination was substantively justified but procedurally flawed, compensatory relief of four months' salary was appropriate, taking into account the length of the employment relationship and the Claimant's contribution to the termination. The acting allowance claim failed as she received the Kshs 45,000 allowance; the school fees claim was unconscionable given her misconduct.
Legal principles established
#- An employer bears the burden of proving the reasons for termination under Section 43 of the Employment Act, failing which the termination is unfair under Section 45
- The test for justifying dismissal for dishonesty is whether the dishonesty breached the faith inherent in the work relationship, assessed in context
- The reasonableness test: a dismissal is fair if a reasonable employer might have dismissed the employee in the circumstances
- A disciplinary process must embody a fair hearing including sufficient prior notice and reasonable adjournments; it is not a procedural formality
- Not every differentiation amounts to discrimination; differentiation is permissible if it does not constitute unfair discrimination
Court orders
#- 1.A declaration that the termination of the Claimant's employment was procedurally unfair and unlawful
- 2.The Claimant is awarded compensatory damages in the sum of Kshs 800,000.00, being the equivalent of four (4) months of her gross salary
- 3.Interest on the amount awarded shall accrue at court rates from the date of judgment until payment in full
- 4.The Claimant shall also be entitled to the costs of the suit
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (Employment Act; Article 162(2) Constitution implied by court's mandate)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mboga v Sameer Africa Plc (Cause E111 of 2021) [2025] KEELRC 3039 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3039/eng@2025-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.