Limo v Nakuru Specialist Hospital (Employment and Labour Relations Cause 115 of 2021) [2025] KEMC 151 (KLR)
The bottom line
#A Kenyan court ruled Nakuru Specialist Hospital unfairly fired its night guard and must pay him over Kshs. 399,000 because it couldn't prove a fair disciplinary process.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was substantively and procedurally unfair
The termination was both substantively and procedurally unfair; the employer failed to prove a valid reason and compliance with Section 41.
The show cause letter and apology letter were contested, with the Claimant denying receipt and authenticity. No evidence was presented to prove a disciplinary hearing occurred. The court found no proof that the procedural safeguards under Section 41 were satisfied, and the employer bore the burden of justifying the termination.
Compensation under Section 49 of the Employment Act
An award of six months' gross salary was appropriate given the Claimant's nearly 22 months of service, lack of prior misconduct, the unfair manner of termination and lack of procedural fairness.
Guided by Section 49(4) factors including length of service, conduct, circumstances of dismissal and mitigation, the court considered the Claimant had served nearly 22 months with no prior misconduct on record and faced likely financial hardship, and settled on six months' gross salary rather than the statutory maximum of twelve.
Underpayment relative to statutory minimum wage
The Claimant was underpaid; the applicable Wage Order minimum for a night guard in Nakuru ranged between Kshs. 16,143.07 and Kshs. 17,000, while his salary began at Kshs. 15,000 and fell as low as Kshs. 9,000.
The Regulation of Wages (General) Order under the Labour Institutions Act, 2007 governs night guards' remuneration. The Respondent produced no salary schedules or payment slips to rebut the Claimant's evidence, so the Claimant's statement was followed, and Wage Orders cannot be overridden by private agreement.
Overtime, rest days and public holidays
The Claimant worked 12 hours daily without compensation, worked public holidays and was denied proper off days; total award of Kshs. 108,440.
Sections 27(1) and 28(2) of the Employment Act require regulated working hours and weekly rest days, and Section 5 of the Regulation of Wages (General) Order requires compensation for work beyond normal hours. The Respondent failed to rebut the claims, and the court computed overtime, holiday and rest-day awards arithmetically.
Unpaid annual leave
The Claimant was awarded 42 days' leave (two years) at Kshs. 538 per day, totalling Kshs. 22,596.
Under Section 28(1)(a) the Claimant was entitled to at least 21 working days of leave annually, and the burden of proving leave was granted lay with the employer. The leave forms produced were unsigned or blank and thus inadmissible, and no credible records were produced to counter the claim.
Service pay
The Claimant was not entitled to service pay as he was an NSSF member.
Section 35(5) and (6) of the Employment Act excludes service pay where the employee is a member of a pension scheme, provident fund or NSSF. The Claimant's NSSF statement (CEX2) confirmed contributions were made, so the claim failed.
Legal principles established
#- A termination is unfair where the employer fails to prove both a valid and fair reason and adherence to fair procedure.
- Before termination on grounds of misconduct, the employer must explain the reasons in the presence of another employee or union representative and allow the employee to make representations.
- Wage Orders are binding legal instruments that cannot be overridden by private agreements.
- The burden of proving that leave was granted rests with the employer.
- Issuance of a certificate of service upon termination is a statutory requirement not dependent on the employee's performance.
Court orders
#- 1.Declaration that the termination of the Claimant was unfair.
- 2.Compensation for unfair termination of Kshs. 96,858.42 (six months' gross salary).
- 3.One month's salary in lieu of notice of Kshs. 16,143.07.
- 4.Underpayment arrears of Kshs. 155,267.54.
- 5.Unpaid overtime, holidays and rest days of Kshs. 108,440.
- 6.Unpaid leave of Kshs. 22,596.
- 7.Certificate of Service to be issued within 14 days of judgment.
- 8.Costs of the suit awarded to the Claimant.
- 9.Interest on the above amounts at court rates from date of judgment until payment in full.
- Jurisdiction invoked
- Employment Act, 2007 (Sections 35, 36, 41, 44, 45, 49, 51); Labour Institutions Act, 2007; Regulation of Wages (General) Order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Limo v Nakuru Specialist Hospital (Employment and Labour Relations Cause 115 of 2021) [2025] KEMC 151 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/151/eng@2025-07-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.