Ndoji v Questworks Limited (Cause 49 of 2020) [2023] KEELRC 2259 (KLR)
The bottom line
#A Kenyan court awarded an engineer Kshs 1.425 million because his employer couldn't prove why it fired him, but rejected his bonus claim.
What this practically means
#Executive summary
#Key legal issues
#Whether the reason for termination was fair and justified
Termination was not substantively justified; the respondent gave shifting reasons (absenteeism, poor performance, restructuring) and failed to prove absenteeism
The termination letter referenced restructuring, warnings referred to absence from work, and witnesses alleged absenteeism based on Facebook posts, but time sheets and complaints were not produced. Absenteeism is gross misconduct under section 44(4)(g), yet the evidentiary burden on the employer under sections 107/109 Evidence Act was not discharged. Poor performance claims also failed because clause 11 required a performance improvement plan after appraisal, which was not shown to have occurred.
Whether the termination procedure was fair
Procedure was unfair; no show cause letter was demonstrated, receipt of warnings was unproven, and the disciplinary hearing invite was inconsistent
The respondent could not prove the claimant received the warning letters, which he denied. No show cause letter outlining charges was produced. The invitation to a hearing dated 14th September 2019 (a Saturday) for a hearing said to be Thursday 16th September 2019 (actually a Tuesday) was internally inconsistent. Section 41 of the Employment Act requires notification and hearing before termination, which was not satisfactorily demonstrated.
Whether the claimant was entitled to a finder's fee
Not entitled; no legitimate expectation arose and evidence showed finder's fee was payable only to external consultants
The claimant's own emails were the only source of the finder's fee claim; his supervisor merely forwarded the requests to management, who communicated that the internal finder's fee was abolished in 2016 and that only consultants, not employees, were eligible. Applying the three-part legitimate expectation threshold, the claimant failed to show any practice or incident of employees being paid finder's fee, so no expectation arose.
Whether the claimant was entitled to the reliefs sought
Reinstatement abandoned; awarded 105 leave days and six months' salary as compensation, plus certificate of service
The claimant worked about six years (2014-2019) and was involved in business, thus cushioned. Section 49 compensation of six months' salary was reasonable. Leave days were uncontested in substance because the respondent failed to produce records under section 74 of the Employment Act, leaving the claimant's 105 days unchallenged. A certificate of service was due under section 51.
Whether the respondent was entitled to its counterclaim of Kshs 158,000/-
Counterclaim disallowed for lack of proof
The counterclaim was for special damages requiring strict proof. No formal demand was served before termination, the claimed figure shifted from about Kshs 273,000/287,000 to Kshs 158,000 without explanation, and the petty cash issue related to 2016-2018 yet was only raised at termination. The court found the claim unproved.
Legal principles established
#- For termination to be fair it must be both substantively justified and procedurally fair
- The burden of proving the reason for termination, including absenteeism, lies on the employer under sections 107 and 109 of the Evidence Act
- Where poor performance is the reason for termination, the employer bears a high level of proof and must show a policy or practice for measuring performance
- An employer who keeps changing the stated reason for termination has no clear reason justifying dismissal
- A counterclaim for special damages must be strictly proved
- An employer who fails to produce employment records such as leave records under section 74 of the Employment Act cannot dispute the employee's claim
Court orders
#- 1.Unpaid leave days for 105 days @ 21 days pay per year (3.5 months) - Kshs 525,000/-
- 2.Six month's salary as compensation for unfair termination - Kshs 900,000/-
- 3.Total award of Kshs 1,425,000/-
- 4.Costs of the suit to the claimant
- 5.The respondent shall issue the claimant with a certificate of service
- 6.Items (i) and (ii) shall be subject to taxes and statutory deductions but shall earn interest at Court rates from the date of judgment until payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 44, 45, 47(5), 49, 51, 74, 90) and Evidence Act (sections 107, 109)
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.
- Kamunyu v Ndegwa & 2 others (Employment and Labour Relations Petition E013 of 2025) [2025] KEELRC 2914 (KLR)[2025] KEELRC 2914 (KLR)22 Oct 2025
Cite this brief
#Cite this brief
Caselaw, "Ndoji v Questworks Limited (Cause 49 of 2020) [2023] KEELRC 2259 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2259/eng@2023-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.