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ELRCPartially AllowedNot stated in the judgment as provided

Kyunguti v Selective Safaris (Albatros Travel) (Cause 289 of 2019) [2025] KEELRC 2 (KLR)

Employment and Labour Relations Court
16 January 2025
934 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a safari company fairly dismissed an employee for moonlighting, but must pay her Kshs 279,192 for denying her a proper hearing.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Systems Administrator from 2013, was issued a show cause notice on or around 19 July 2018 alleging that she had used her company-issued computer to work for another company, Micada Safaris. She was given only 30 minutes to respond in writing, responded the same day, and was summarily dismissed the same day. She sued for unfair termination and breach of contract. The Court framed three issues: procedural and substantive fairness of the termination, breach of contract, and remedies. On procedure, the Court held the process unfair: Section 41(2) of the Employment Act requires a mandatory oral hearing before summary dismissal of a senior employee, and giving a senior manager only 30 minutes to respond in writing, without the opportunity to be accompanied, fell far short. On substance, however, the Claimant's own written response admitted doing work for Micada Safaris, an apparent competitor, and the Court held the Respondent had valid and fair reasons to end the employment, emphasising the employee's duty of full fidelity. On remedies, the Court awarded compensation equivalent to one month's gross wage (Kshs 178,500/-), taking into account the valid reasons for dismissal, the partial written hearing, five years of service and payment of some terminal dues. The breach of contract claims succeeded: Kshs 41,192/- for accrued leave (the Respondent did not challenge the computation) and Kshs 59,500/- as reimbursement of an unexplained and therefore unlawful deduction for 'leave days overtaken'. Judgment was delivered virtually in Nairobi on 16 January 2025 by Radido Stephen, Judge.

Questions the Court framed

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

  1. 1.Whether the termination of employment of the Claimant was unfair?
  2. 2.Whether the Respondent was in breach of contract?
  3. 3.Appropriate remedies.

Key legal issues

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01

Procedural fairness of the summary dismissal

Holding

The dismissal was procedurally unfair because the Claimant, a senior employee, was given only 30 minutes to respond in writing and was denied a mandatory oral hearing and the opportunity to be accompanied

Reasoning

Section 41(2) of the Employment Act mandates an oral hearing in cases of summary dismissal. The Claimant held a senior position within the Respondent's East African establishment, yet was given only 30 minutes to respond to allegations capable of ending her employment and income. No oral hearing was granted and no explanation was offered for the inadequate time. The process was therefore procedurally unfair notwithstanding the validity of the substantive reasons.

p. 2
02

Substantive fairness of the summary dismissal

Holding

The Respondent had valid and fair reasons to terminate because the Claimant admitted working for Micada Safaris, an apparent competitor, using her company-issued computer

Reasoning

Sections 43 and 45 require the employer to prove valid and fair reasons. The Respondent's evidence showed the Claimant used her assigned computer to work for a different company. In her response to the show cause letter the Claimant admitted doing 'a little input' for Micada Safaris and apologised. Fidelity is owed to the employer and underpins trust and confidence. Her admitted conduct for a competitor justified bringing the employment relationship to an end.

p. 3
03

Remedies - compensation for unfair termination

Holding

The equivalent of one month's gross salary (Kshs 178,500/-) was awarded as compensation

Reasoning

In exercising discretion on compensation, the Court weighed the procedural unfairness against the valid and fair reasons for dismissal, the fact that the Claimant was given some opportunity (though insufficient) to make written representations, her roughly five years of service, and that the Respondent paid some terminal dues. On balance, one month's gross wage of Kshs 178,500/- was considered a fair award.

p. 3
04

Breach of contract - accrued leave

Holding

The claim for Kshs 41,192/- for accrued leave days succeeded; the Respondent did not challenge the computation

Reasoning

The Respondent produced leave records showing a balance of 16 leave days as at 8 January 2018. The Claimant was entitled to commutation of accrued leave days, and because the Respondent did not interrogate the computation of the claim, the Court allowed the head of claim for Kshs 41,192/-.

p. 3
05

Breach of contract - unlawful deductions

Holding

The deduction of Kshs 59,500/- on account of leave days overtaken was unlawful because the Respondent gave no basis for it

Reasoning

The final dues computation showed a deduction of Kshs 59,500/- for leave days overtaken. Yet the leave records dated 8 January 2018 showed a positive balance of 16 days, which must have grown by separation. The Respondent offered no explanation for the deduction. Absent any explanatory basis, the deduction was unlawful and the Court ordered reimbursement.

p. 3

Legal principles established

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  • Section 41(2) of the Employment Act requires a mandatory oral hearing before summary dismissal of a senior employee; written responses within an unreasonably short time do not satisfy procedural fairness
  • Sections 43 and 45 of the Employment Act, 2007 place the burden on the employer to prove that the reasons for dismissal are valid and fair
  • An employee owes full fidelity to the employer, which enhances trust and confidence; working for a competitor using company resources is a valid reason for termination
  • An unexplained deduction from an employee's final dues is unlawful and must be reimbursed

Court orders

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  1. 1.Declaration that the summary dismissal of the Claimant was procedurally unfair and that there was a breach of contract
  2. 2.Compensation of Kshs 178,500/- (equivalent of 1-month gross wage)
  3. 3.Accrued leave of Kshs 41,192/-
  4. 4.Reimbursement of unlawful deduction of Kshs 59,500/-
  5. 5.Total award of Kshs 279,192/- to the Claimant
  6. 6.Claimant to have costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; Labour Relations Court cause)

Relief refused

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Greater compensation for unfair termination beyond one month's gross wage

Although the dismissal was procedurally unfair, the Respondent had valid and fair reasons for termination; the Claimant served about 5 years and received some terminal dues; one month's gross wage was deemed fair

p. 3

Costs

The Claimant to have costs.

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.

The Court finds and declares that the summary dismissal of the Claimant was procedurally unfair and that there was a breach of contract.
p. 3Conclusion and declaration
The Claimant is awarded: i. Compensation Kshs 178,500/- ii. Accrued leave Kshs 41,192/- iii. Unlawful deduction Kshs 59,500/ TOTAL Kshs 279,192/-
p. 3Final orders - monetary awards
Section 41(2) of the Employment Act requires a mandatory oral hearing in cases of summary dismissal.
p. 2Procedural fairness - statutory requirement
An employee should pay full fidelity to the employer. Full fidelity as such enhances trust and confidence.
p. 2Employee's duty of fidelity

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, "Kyunguti v Selective Safaris (Albatros Travel) (Cause 289 of 2019) [2025] KEELRC 2 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2/eng@2025-01-16

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