Caroline Gathoni Gikonyo v Kenya Association of Investment Groups [2015] KEELRC 37 (KLR)
The bottom line
#A Kenyan court ruled an employer must pay a departing employee's full notice-period salary, largely because it never issued a written employment contract.
What this practically means
#Executive summary
#Key legal issues
#Mandatory written contract of employment under sections 9 and 10 of the Employment Act
The Respondent's failure to issue a written contract within two months of employment operated to its disadvantage and shifted the benefit of doubt to the employee
Sections 9 and 10 of the Employment Act require a written contract stating particulars of employment within two months. The Respondent issued none. The court noted the absence of any record of duties, tools handed over, or accountability schedules, and held that disputes must be construed in the employee's favour where the employer avoided a written contract.
Resignation during probation and the applicable notice period
An employee who resigns is free to give longer notice than the statutory minimum; once accepted, she remains employed until the notice lapses and is entitled to salary for that period
Section 42 permits termination during probation on short notice, but an employee may choose to give a longer notice of her own volition. The employer had the option to accept the notice conditionally or unconditionally, or to terminate earlier on 7 days' notice. Having accepted the 30-day notice, the Respondent remained liable for salary until 30th November 2013.
Absence from work due to an accident and sick leave entitlement
The Claimant failed to notify the employer of her incapacity or produce a medical certificate, so she forfeits pay for the period 21st to 31st October 2013
Section 30(2) of the Employment Act requires an employee to notify the employer of absence due to sickness and, on resumption, to produce a certificate of incapacity. The Claimant's silence about her accident meant the absence was unexplained; the salary for that period is deductible. However, the employer also sat back and issued no notice under section 41(2), so summary dismissal was not available.
Respondent's demand for return of company property without a counter-claim
The claim for the laptop, petty cash book and parking fees could not be entertained as no counter-claim was filed and no written basis for deduction existed
The rules of pleading required the Respondent to file a counter-claim to raise the alleged unreturned property. With no written contract or handover schedule, there was no documentary basis for any lawful deduction under section 19 of the Employment Act, and granting the claim would be a miscarriage of justice.
Certificate of service
A certificate of service is due unconditionally under section 51 of the Employment Act
Section 51 entitles a departing employee to a certificate of service, which the Respondent had refused to issue. The court ordered it to issue unconditionally within 7 days.
Legal principles established
#- Where an employer fails to issue a written contract of employment, contested terms must be construed from the perspective of the employee
- Once a resignation notice is accepted, the employee remains an employee until the notice period lapses and is entitled to salary for that period
- An employee claiming sick leave must notify the employer and produce a certificate of incapacity from a qualified medical practitioner
- An employer must hear and consider an employee's representations before terminating for absence or poor performance
Court orders
#- 1.Judgment entered for the Claimant for the sum of Kshs.135,216.00 together with costs
- 2.A certificate of service to be issued within 7 days
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act claims)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Aegis Construction Limited v Kihenja (Employment and Labour Relations Appeal E035 of 2024) [2025] KEELRC 2375 (KLR)[2025] KEELRC 2375 (KLR)13 Aug 2025
Cite this brief
#Cite this brief
Caselaw, "Caroline Gathoni Gikonyo v Kenya Association of Investment Groups [2015] KEELRC 37 (KLR)", Case Analysis (2015). Cause No. 1796 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/37/eng@2015-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.