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Court of AppealDismissedNot stated in the judgment as provided

Njai v Amadeus East Africa (Civil Appeal 381 of 2019) [2025] KECA 2044 (KLR)

Court of Appeal of Kenya
28 November 2025
7,823 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed an employer can lawfully dismiss an employee for ignoring company procedures, provided it follows fair disciplinary steps.

What this practically means

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Executive summary

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This is a first appeal to the Court of Appeal at Nairobi against the judgment of M. Mbaru, J. of the Employment and Labour Relations Court delivered on 20th April 2018, which dismissed the appellant's claims for constructive and wrongful dismissal. The appellant, a Senior IT Manager, was terminated on 19th December 2013 after failing to log a client (HRG) outage on 24th October 2013, following which HRG threatened to withdraw its business. Before the Court, the appellant argued the termination was externally dictated by HRG, procedurally unfair under section 41 of the Employment Act, effected in contempt of conservatory orders, and constituted constructive dismissal; he sought the full range of remedies including career-destruction damages. The Court framed five issues and resolved all against the appellant. It upheld the trial court's finding that the failure to log the incident, despite the appellant having helped design the logging protocol, was willful neglect under section 44(4)(c) giving a valid and fair reason for termination. It held procedural fairness was satisfied: the appellant was warned, given a show-cause letter, responded in writing, and voluntarily abandoned the disciplinary process. On the conservatory orders, the termination occurred after their discharge on 19th December 2013 and their later reinstatement on 23rd December 2013 could not undo it. Applying the contractual test from Coca Cola v Ligaga, the Court found no repudiatory breach by the employer, noting the appellant litigated while secretly pursuing separation negotiations. All reliefs were refused and the appeal was dismissed with costs to the respondent. The judgment affirms the twin requirements of substantive justification and procedural fairness in termination disputes and binds the ELRC and High Court accordingly.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned judge erred in finding that the appellant's termination on 19th December 2013 was justified
  2. 2.Whether the judge was wrong in concluding that the termination complied with the applicable legal requirements
  3. 3.Whether the conservatory orders previously issued by the trial court had any effect on the validity of the termination
  4. 4.Whether the judge erred in holding that the doctrine of constructive dismissal did not apply
  5. 5.Whether the appellant was entitled to the reliefs he sought in the appeal

Key legal issues

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01

Whether the appellant's failure to log the HRG incident on 24th October 2013 gave the respondent valid grounds for termination

Holding

Yes. The appellant admitted receiving outage reports from both clients and failing to log the HRG incident despite knowing the mandatory protocol he helped design. The omission was unjustified and constituted willful neglect under section 44(4)(c), giving the respondent a valid and fair reason to terminate.

Reasoning

The Court upheld the trial court's factual findings: the appellant conceded he could have contacted the office to have the complaint logged, having made calls to other clients that same day. Because the internal rules required any employee unable to log a complaint to ensure a colleague did so, and no entry was made, the respondent only learned of the outage on escalation by the client. The failure was avoidable, reflected disregard of established procedure, and amounted to careless performance of duty constituting gross misconduct.

p. 12
02

Whether the termination complied with the procedural requirements of sections 41 and 43 of the Employment Act

Holding

Yes. The appellant was notified of the allegations, responded in writing, received a warning and a show-cause letter, and was invited to participate in the disciplinary process but voluntarily abandoned it in favour of separation discussions and court proceedings.

Reasoning

The Court traced the sequence: warning letter of 30th October 2013, written response, investigations with the appellant's replies of 19th November, an investigation report shared with him, and a detailed show-cause letter of 29th November outlining the allegations. His responses addressed technical bandwidth issues but not the core allegations of ignoring logging and escalation procedures. Having knowingly engaged with the process and then abandoned it, he could not claim denial of a hearing; the requirements of sections 41 and 43 were satisfied.

p. 12
03

Whether the dismissal was null and void because conservatory orders were subsisting on 19th December 2013

Holding

No. The orders issued on 2nd December 2013 were discharged on 19th December 2013; the termination letter was served the same day when no injunctive orders existed, and their reinstatement on 23rd December 2013 could not retrospectively invalidate what had already been done.

Reasoning

The Court found as fact that the dismissal occurred in the absence of any injunctive orders. Although the orders discharging the injunction were themselves set aside on 23rd December 2013, the termination letter had already lawfully issued before that, so the factual position could not be undone. The appellant therefore could not rely on the earlier orders to claim continuing employment or unpaid salaries.

p. 12
04

Whether the appellant was constructively dismissed

Holding

No. Constructive dismissal was not established because the respondent's conduct did not amount to a repudiatory breach of the employment contract; rather, the appellant acted inconsistently with the trust inherent in the employment relationship by litigating while secretly pursuing separation negotiations.

Reasoning

Applying the contractual test from Coca Cola v Ligaga, the Court held that the appellant initiated negotiations for a mutual separation and expressed willingness to leave on agreed terms, and the respondent prepared a draft settlement agreement. While those discussions were ongoing, the appellant sought injunctive relief in court without disclosing the negotiations. Such conduct on the employee's side, and not any employer conduct amounting to repudiation, broke the mutual trust underlying the contract, so the doctrine of constructive dismissal did not apply.

p. 13
05

Whether the appellant was entitled to the reliefs sought

Holding

No. Having found the termination justified, the Court saw no grounds to disturb the trial court's rejection of the declaratory, compensatory and reinstatement reliefs, and endorsed the respondent's offer on terminal dues.

Reasoning

The Court held that once the termination was found substantively justified and procedurally fair, it would be unconscionable to grant the reliefs sought. It agreed with the trial court that the respondent's offer regarding terminal dues in the letter of 19th December 2013 was generous and should not be reduced or undermined. The claim for salary up to retirement, damages for destruction of career and constitutional damages therefore all failed with the appeal.

p. 13

Legal principles established

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  • For a termination of employment to pass the fairness test, there must be both substantive justification and procedural fairness; under section 41 of the Employment Act the employee must be informed of the allegations in a language he understands and given an opportunity to respond.
  • Under section 44(4)(c) of the Employment Act, willful neglect of assigned duties or careless performance contrary to the requirements of the work constitutes gross misconduct justifying summary dismissal, and gives the employer a valid and fair reason to terminate.
  • The contractual test of constructive dismissal adopted in Coca Cola v Ligaga governs: constructive dismissal is established only where the employer's conduct constitutes a repudiatory breach of the employment contract.
  • A termination effected after interim or conservatory orders have been discharged, and before their subsequent reinstatement, is not rendered null and void by the later reinstatement, which does not operate retrospectively.
  • On a first appeal, the Court of Appeal must reconsider and re-evaluate the evidence and draw its own conclusions, while making due allowance for the fact that it neither saw nor heard the witnesses.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Employment and Labour Relations Court at Nairobi
Not stated in the judgment as provided
Jurisdiction invoked
First appellate jurisdiction over the Employment and Labour Relations Court (the judgment records that 'as this is a first appeal, it is our duty to analyze and re-assess the evidence on record and reach our own conclusions'); no specific constitutional or statutory provision is cited for jurisdiction.

Relief refused

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All reliefs sought in the memorandum of claim and on appeal (declarations of unlawful termination and constitutional violation, reinstatement/continuation of employment, salary arrears, damages for destruction of career, general and exemplary damages, compensation under section 49 of the Employment Act)

The termination was justified with valid reason and fair procedure; it would be unconscionable to grant the reliefs; the respondent's offer of terminal dues should stand

p. 13

Costs

The appeal is dismissed with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is trite law that for a termination of employment to pass the fairness test, there must be both substantive justification and procedural fairness.
p. 10Two-limb test for fairness of termination
Section 44(4)(c) particularly permits dismissal where an employee willfully neglects assigned duties or performs them carelessly or improperly contrary to the requirements of the work.
p. 12Summary dismissal for gross misconduct
In the circumstances, the respondent satisfied the requirements under sections 41 and 43 of the Employment Act.
p. 12Compliance with procedural fairness and burden of proving valid reason
Although the orders were subsequently reinstated on 23rd December 2013, the relevant action had already been taken and the situation could not be undone as the horse had already bolted.
p. 12Effect of reinstatement of conservatory orders on an intervening termination
The respondent's conduct, therefore cannot be characterized as a repudiatory breach of the employment contract. On the contrary, it was the appellant who acted inconsistently with the trust inherent in an employment relationship.
p. 13Constructive dismissal - contractual test
In the end, we are not satisfied that the trial court erred in finding that the appellant committed misconduct, that the respondent had a valid reason for termination and that procedural fairness was observed. Accordingly, this appeal lacks merit and is dismissed with costs to the respondent.
p. 13Disposition - dismissal of the appeal with costs

Issues in the judgment

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minor

The judgment does not print a title page; the case title, appeal number and neutral citation are absent from the text provided, so the parties' full names and appeal number cannot be captured verbatim.

minor

Internal date inconsistency: the certification line reads 2023 but the judgment states it was delivered in November 2025 (the appellant's amended claim is also dated 2nd February 2013 although the employment dispute began in 2013).

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, "Njai v Amadeus East Africa (Civil Appeal 381 of 2019) [2025] KECA 2044 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2044/eng@2025-11-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.