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ELRCPartially AllowedMemorandum of Claim dated 26th August, 2025· [2025] KEELRC 3713 (KLR)

Kaleche v S.C Johnson & Sons Kenya Limited (Employment and Labour Relations Cause E005 of 2025) [2025] KEELRC 3713 (KLR)

Employment and Labour Relations Court
4 December 2025
1,399 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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In an undefended claim before the Employment and Labour Relations Court, the Claimant, engaged in 2017 as a sales distributor representative on a gross monthly salary of Kshs 158,106, sued after her employment was terminated effective 1st April 2025 on account of alleged poor performance. She sought one month's pay in lieu of notice, leave pay for 2018-2025, compensation for unfair termination, and costs. The Respondent neither entered appearance nor filed a response, and the matter proceeded by formal proof. The court framed two issues: whether the employment was unfairly terminated, and entitlement to reliefs. Relying on section 47(5) of the Employment Act, the court held that although an undefended suit does not automatically succeed, the Claimant had prima facie proved her dismissal and its unfairness, shifting the evidential burden to the employer. The Respondent, having tendered no evidence, failed to discharge its burdens under sections 41, 43, 45 and 47(5), and the summary dismissal was found both procedurally and substantively unfair. The court awarded a declaration of unfair termination, seven months' gross salary (KShs. 1,106,742) as compensation under section 49, considering her nearly seven years of service and lack of contribution to the dismissal, leave pay computed at KShs. 727,287.00, one month's notice pay (KShs. 158,106), costs, and interest at court rates from the date of judgment until full payment.

Key legal issues

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01

Whether the Claimant's employment was unfairly terminated

Holding

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.

Reasoning

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.

p. 3
02

Entitlement to one month's pay in lieu of notice

Holding

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.

Reasoning

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.

p. 3
03

Leave pay for 2018-2025

Holding

Awarded. Section 28 of the Employment Act entitles employees to accrued leave pay; the claim was uncontested.

Reasoning

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.

p. 3
04

Compensation for unfair termination under section 49

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.A declaration that her summary dismissal was both procedurally and substantively unfair
  2. 2.Compensation pursuant to section 49(1) of the Employment Act of seven (7) months' gross salary, KShs. 1,106,742
  3. 3.Compensation for leave days earned but unutilized, (21/30x7x158,106), KShs. 727,287.00
  4. 4.One month's salary in lieu of notice, KShs. 158,106
  5. 5.Costs of this suit
  6. 6.Interest on the awarded sums at court rates from the date of judgment till full payment

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 45
  • Employment Actsection 47(5)
  • Employment Actsection 35
  • Employment Actsection 36
  • Employment Actsection 28
  • Employment Actsection 49(1)

Cases cited (2)

  • Pius Machafu Isundu v Lavington Security Guard Limited
    [2017] KECA 225 (eKLR)
  • Kenya Revenue Authority v Reuwel Waithaka Githai & 2 others
    [2019] KECA 300 (KLR)
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

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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, "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.