Njai v Amadeus East Africa (Civil Appeal 381 of 2019) [2025] KECA 2044 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned judge erred in finding that the appellant's termination on 19th December 2013 was justified
- 2.Whether the judge was wrong in concluding that the termination complied with the applicable legal requirements
- 3.Whether the conservatory orders previously issued by the trial court had any effect on the validity of the termination
- 4.Whether the judge erred in holding that the doctrine of constructive dismissal did not apply
- 5.Whether the appellant was entitled to the reliefs he sought in the appeal
Key legal issues
#Whether the appellant's failure to log the HRG incident on 24th October 2013 gave the respondent valid grounds for termination
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.
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.
Whether the termination complied with the procedural requirements of sections 41 and 43 of the Employment Act
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.
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.
Whether the dismissal was null and void because conservatory orders were subsisting on 19th December 2013
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.
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.
Whether the appellant was constructively dismissed
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.
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.
Whether the appellant was entitled to the reliefs sought
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.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Costs
The appeal is dismissed with costs to the respondent.
Quotable passages
#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.
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.
In the circumstances, the respondent satisfied the requirements under sections 41 and 43 of the Employment Act.
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.
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.
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.
Issues in the judgment
#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.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.