Kaleche v S.C Johnson & Sons Kenya Limited (Employment and Labour Relations Cause E005 of 2025) [2025] KEELRC 3713 (KLR)
The bottom line
#A Kenyan court ruled that dismissing an employee for poor performance without a hearing or show-cause letter was unfair, awarding her over KShs 1.9 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant's employment was unfairly terminated
Yes - the summary dismissal was both procedurally and substantively unfair. The Claimant prima facie proved the dismissal and its unfairness; the Respondent, having filed no defence and tendered no evidence, failed to discharge its legal burdens under sections 41, 43, 45 and 47(5) of the Employment Act.
Section 47(5) places the initial burden on the employee to prove that termination occurred and was unfair or wrongful. Once that foundation is laid, the evidential burden shifts to the employer to prove valid and fair reasons under section 43 and compliance with section 41 procedure. The Claimant testified and produced documents showing dismissal for poor performance without a show-cause letter or hearing. The Respondent adduced no evidence, so the burdens under sections 41, 43 and 45 were not discharged and the dismissal was unfair both procedurally and substantively.
Entitlement to one month's pay in lieu of notice
Awarded. Employment was terminable by twenty-eight days' notice under section 35 but termination was without notice, so notice pay is due under section 36.
The Claimant's employment was terminable by twenty-eight days' notice as provided under section 35 of the Employment Act. She was dismissed summarily without notice, and since the summary dismissal was not shown to have been fair, the statutory protection applies and she is entitled to one month's salary in lieu of notice under section 36.
Leave pay for 2018-2025
Awarded. Section 28 of the Employment Act entitles employees to accrued leave pay; the claim was uncontested.
Section 28 of the Employment Act entitles employees to accrued leave. The Respondent did not contest the claim, and the court awarded compensation for earned but unutilized leave days computed using the formula 21/30 x 7 x 158,106, yielding KShs. 727,287.00 rather than the Kshs 1,106,742 claimed.
Compensation for unfair termination under section 49
Awarded at seven months' gross salary (KShs. 1,106,742), taking into account nearly 7 years of service, the lack of substantive justification and procedural fairness, and absence of proven contribution to the dismissal.
Section 49 grants the court discretionary authority to award compensatory relief to an employee who successfully challenges termination, exercised case by case. The court weighed the length of service (almost 7 years), the summary dismissal without substantive justification or procedural fairness, and the absence of any proven contribution by the employee, fixing compensation at seven months' gross salary rather than the twelve months sought.
Legal principles established
#- Failure by a respondent to enter appearance or file a defence does not automatically mean the claimant's case succeeds; the claimant must still discharge her burden of proof.
- In unfair termination complaints, the employee bears the burden of proving that termination occurred and was unfair; only then does the evidential burden shift to the employer under sections 43 and 41.
Court orders
#- 1.A declaration that her summary dismissal was both procedurally and substantively unfair
- 2.Compensation pursuant to section 49(1) of the Employment Act of seven (7) months' gross salary, KShs. 1,106,742
- 3.Compensation for leave days earned but unutilized, (21/30x7x158,106), KShs. 727,287.00
- 4.One month's salary in lieu of notice, KShs. 158,106
- 5.Costs of this suit
- 6.Interest on the awarded sums at court rates from the date of judgment till full payment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment Act, 2007; sections 41, 43, 45, 47(5), 49)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kaleche v S.C Johnson & Sons Kenya Limited (Employment and Labour Relations Cause E005 of 2025) [2025] KEELRC 3713 (KLR)", Case Analysis (2025). Memorandum of Claim dated 26th August, 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3713/eng@2025-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.