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ELRCPartially Allowednot stated in extract

Omwamba v Kenya National Library Services (Cause E723 of 2021) [2025] KEELRC 195 (KLR)

Employment and Labour Relations Court
31 January 2025
2,883 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court found an employee deserved dismissal but was denied fair procedure, so the employer must pay one month's salary as compensation.

What this practically means

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Executive summary

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The Claimant, employed as a Librarian II on 17th March 2016 and deployed to the Kenya National Library Service Kisii Branch, was summarily dismissed by a letter dated 3rd August 2021 on grounds of habitual absenteeism, negligence and embezzlement of funds under the Respondent's Human Resource Manual, 2017. He claimed the dismissal was unfair and unlawful, seeking reinstatement, a permanent injunction and costs. The Respondent conceded the employment and dismissal but justified it on grounds of prior warnings and a pattern of misconduct, and counterclaimed Kshs. 72,053 for unremitted revenue, unreturned office phones, improper use of imprest and unaccounted petty cash. The Court found the dismissal procedurally flawed: the HRMAC meeting of 19th July 2021 was a multi-agenda meeting, not a disciplinary hearing; there was no evidence of invitation to the Claimant, no record of his position, and no witnesses or documents before the Committee, contravening Sections 41 and 45 of the Employment Act. Substantively, however, a pattern of serial mismanagement - including conversion of unbanked revenue of Kshs. 40,453 and failure to implement Covid-19 reopening protocols - constituted a valid reason for dismissal under Sections 43 and 45. Reinstatement was declined as unreasonable, and the prayer for a permanent injunction was dismissed as bizarre and amounting to judicial overreach. Applying Section 10(7) of the Employment Act, the Court adopted the Claimant's pleaded salary of Kshs. 85,000, both parties having failed to produce pay slips, and awarded one month's salary as compensation. The counterclaim failed as bare pleadings unsupported by evidence. No order was made on costs or interest.

Questions the Court framed

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

  1. 1.Whether the Claimant's contract was fairly terminated under Sections 41, 43 and 45 of the Employment Act
  2. 2.Whether the Claimant is entitled to reinstatement or other remedies
  3. 3.Whether the Respondent has established its Counterclaim

Key legal issues

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01

Procedural fairness of the dismissal

Holding

Termination procedurally flawed under Sections 41 and 45 of the Employment Act

Reasoning

The HRMAC meeting of 19th July 2021 was a multi-agenda meeting, not a disciplinary hearing. No evidence of invitation to the Claimant, no record of his attendance or explanation for absence, no witnesses or documents before the Committee, and no record of the Claimant's position. The procedure thus fell below the minimum statutory standards of fairness under Sections 41 and 45 of the Employment Act.

p. 4
02

Substantive fairness / valid reason for dismissal

Holding

The Respondent had valid reason justifying dismissal

Reasoning

The Court found a pattern of mismanagement from shortly after employment through to dismissal, including unbanked revenue converted to personal use, neglect of duty, failure to implement Covid-19 reopening protocols, and a final warning acknowledged by the Claimant. This established a valid reason under Sections 43 and 45 of the Employment Act notwithstanding the procedural defects.

p. 5
03

Remedies - reinstatement and compensation

Holding

Reinstatement declined; 1 month's salary awarded as compensation

Reasoning

The Claimant had served 5 years and 5 months but caused or contributed enormously to the circumstances of his dismissal, so reinstatement was not reasonable, practicable or lawful. In the absence of pay slips from either side, the Court applied Section 10(7) of the Employment Act to adopt the Claimant's pleaded salary of Kshs. 85,000 and awarded the equivalent of 1 month's salary.

p. 6
04

Counterclaim of Kshs. 72,053

Holding

Counterclaim not established and declined

Reasoning

Neither the Human Resource Officer nor the Internal Auditor proved the components of the counterclaim. The revenue alleged to have been misappropriated may have been recovered from the Claimant's salary per the CEO's letter of 14th April 2020, and no evidence was led on the office phones or petty cash voucher claims; these remained bare pleadings unsupported by evidence.

p. 6

Legal principles established

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  • An employee must be afforded an opportunity to be heard before dismissal, per Section 41 of the Employment Act; a meeting that proceeds without evidence of invitation or of the employee's position does not meet the statutory minimum standards of procedural fairness.
  • Where an employer fails to produce the contract or written particulars to disprove disputed particulars, the burden of proving or disproving the disputed particulars rests with the employer (Section 10(7) of the Employment Act).

Court orders

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  1. 1.It is declared that termination was based on valid grounds, but flawed in the manner of its execution
  2. 2.The Respondent shall pay to the Claimant, equivalent of 1-month salary at Kshs. 85,000, in compensation for unfair termination
  3. 3.No order on the costs
  4. 4.No order on interest

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 under the Employment Act, Sections 41, 43 and 45 (as framed by the Court); no constitutional provision invoked

Relief refused

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Reinstatement

The Claimant caused or contributed enormously to the circumstances leading to his dismissal; reinstatement not reasonable, practicable or lawful

p. 6

Permanent injunction restraining the Respondent from arbitrary dismissal

The Claimant had already been dismissed; such an order would amount to judicial overreach

p. 6

Counterclaim of Kshs. 72,053

Not established through the evidence of the Respondent's witnesses; bare pleadings unsupported by evidence

p. 6

Costs and interest

Court made no order on costs or interest

p. 6

Costs

No order on the costs; no order on interest.

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 declared that termination was based on valid grounds, but flawed in the manner of its execution.
p. 6Final orders - declaration on validity and procedural flaw
The Respondent shall pay to the Claimant, equivalent of 1- month salary at Kshs. 85,000, in compensation for unfair termination.
p. 6Final orders - compensation
Procedure did not conform to the minimum statutory standards of fairness, under Sections 41 and 45 of the Employment Act.
p. 4Procedural fairness
The Court is nevertheless convinced that there was a pattern, clearly establishing that the Claimant had failed serially, in management of the Respondent's Kisii Branch, warranting that he is dismissed.
p. 5Substantive validity of dismissal
Such an order would amount to judicial overreach. The prayer is bizarre and is declined.
p. 6Permanent injunction refused
The Counterclaim is declined.
p. 6Counterclaim dismissed

Issues in the judgment

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minor

Case title, case number and neutral citation do not appear in the extract supplied

minor

Date inconsistency in the judgment regarding the Claimant's acknowledgment of the final warning letter

minor

Internal contradiction in the judgment on the purpose of the disciplinary hearing invitation - the Claimant said he never saw it, while the HR Officer said an invitation letter was posted

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, "Omwamba v Kenya National Library Services (Cause E723 of 2021) [2025] KEELRC 195 (KLR)", Case Analysis (2025). not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/195/eng@2025-01-31

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