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ELRCPartially AllowedNot stated in the judgment as provided (Memorandum of Claim dated 26th September 2017, Amended Statement of Claim dated 27th September 2019)

Emojong v Henkel Chemicals (EA) (Employment and Labour Relations Cause 1910 of 2021) [2025] KEELRC 259 (KLR)

Employment and Labour Relations Court
3 February 2025
HWHellen Wasilwa
4,698 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a former manager Kshs 680,000 because her employer could not prove her dismissal followed a fair process.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 22nd October 2015 as an Administration Manager and later Quality Controller and Production Manager at the Ruiru factory, sued for unlawful termination effected on 21st August 2017 following customer complaints about product quality and allegations that she had misrepresented her qualifications and references. She sought terminal dues of Kshs 1,275,000, comprising unpaid July 2017 salary, one month's pay in lieu of notice, twelve months' compensation for unfair termination, and service pay, plus general damages, costs and interest. The Respondent maintained that the termination was lawful and justified under Sections 43, 44(3), 44(4)(c) & (e) and 45(2)(b)(ii) of the Employment Act, that a fair hearing was afforded under Section 41, that the Claimant collected her terminal benefits and executed a Discharge Voucher barring further claims, and that reinstatement was impracticable under Section 49(4). The court held that the disciplinary process was fatally flawed: the charges against the Claimant were never clearly framed, minutes of the disciplinary hearing were not produced, and the Claimant's request for a colleague or union representative was allegedly denied. The court found that the Respondent failed to establish a valid reason for the dismissal or a fair disciplinary process, contrary to Sections 41 and 45(2) of the Employment Act. The suit succeeded in part: the court awarded six months' salary as compensation (Kshs 510,000), July 2017 salary (Kshs 85,000) and pay in lieu of notice (Kshs 85,000), totalling Kshs 680,000 less statutory deductions, with costs and interest at court rates from the date of judgment. The claims for service pay and general damages were not awarded.

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 the Claimant's employment was substantively justified (valid and fair reason under Section 45(2) of the Employment Act)
  2. 2.Whether the termination was carried out in accordance with fair procedure as required under Sections 41 and 45(2) of the Employment Act
  3. 3.Whether the Claimant's execution of a Discharge Voucher and receipt of terminal benefits bars her claim
  4. 4.What reliefs, if any, the Claimant is entitled to

Key legal issues

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01

Procedural fairness under Section 41 of the Employment Act

Holding

The disciplinary process was flawed: charges were never framed, minutes of the hearing were not produced, and the employee's request for a witness/union representative was allegedly denied, so fair procedure was not established.

Reasoning

The court found that the show cause letters did not clearly frame charges, as it was unclear whether the allegations were failure to produce documents, negligence, or insubordination. The employer did not produce minutes of the disciplinary hearing, making it impossible to verify what transpired, particularly given the claimant's complaints of double standards and denial of her chosen witness. Section 41 requires explanation of reasons and the presence of a fellow employee or union representative. Without minutes, the employer could not discharge its burden of proving a fair process.

p. 8
02

Valid and fair reason under Section 45(2) of the Employment Act

Holding

The respondent failed to establish the existence of a valid reason for the dismissal nor evidence of a fair disciplinary process, rendering the termination unfair.

Reasoning

Under Section 45(2), the employer must prove a valid reason related to conduct, capacity or compatibility and that fair procedure was followed. The court noted there was no indication that the Section 41 process was followed, and with no minutes of the hearing and the claimant expressing reservations about the entire process, the respondent failed to discharge the evidential burden of justifying the termination.

p. 9
03

Ambiguity of the charges against the employee

Holding

The employer failed to frame clear charges, undermining the fairness of the termination.

Reasoning

The court observed that it was not clear whether the charges were failure to produce documents, negligence of duty, or insubordination. The respondent was obligated to frame charges and require the claimant to answer them, which was never done, further evidencing procedural unfairness.

p. 8

Legal principles established

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  • An employer relying on a disciplinary process must produce minutes of the disciplinary hearing; in the absence of minutes, the court cannot ascertain whether the case against the employee was addressed, and the employer fails to prove fair procedure and valid reason.
  • An employer must frame specific charges against an employee and require the employee to answer to them before termination.

Court orders

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  1. 1.Compensation for unfair termination equivalent to 6 months' salary being Kshs 510,000
  2. 2.Salary for July 2017 being Kshs 85,000
  3. 3.Pay in lieu of notice being Kshs 85,000, total Kshs 680,000 less statutory deductions
  4. 4.Respondents to pay costs of the suit plus interest at court rates from the date of judgment

The bench

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

HW
majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction under the Employment and Labour Relations Court Act, 2011 and the Employment Act, 2007

Relief refused

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Service pay for two years (Kshs 85,000)

Not awarded among the final reliefs; the court limited the award to compensation, July 2017 salary and notice pay

p. 9

12 months' salary as compensation for unfair termination

The court awarded only 6 months' compensation instead of the 12 months sought

p. 9

General damages for distress

Not awarded in the final orders

p. 9

Costs

The respondents will pay costs of this suit plus interest at court rates w.e.f the date of this judgment.

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.

In the absence of the minutes being produced, it cannot be ascertained as to whether or not the case against the claimant was addressed or not.
p. 8Employer's duty to produce disciplinary hearing minutes
The respondents were also obligated to frame charges against the claimant and ask her to answer to them. This was never done.
p. 8Obligation to frame charges before termination
I find the respondent did not establish the existence of valid reason for claimant's dismissal nor is there evidence that the claimant was subjected to a fair disciplinary process.
p. 9Failure to prove valid reason and fair procedure
I therefore find for the claimant and I award her as follows
p. 9Final orders - disposition
The respondents will pay costs of this suit plus interest at court rates w.e.f the date of this judgment.
p. 9Costs and interest order

Issues in the judgment

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minor

The judgment contains an internal date contradiction regarding the Show Cause letter: in one passage it is dated 13th May 2017, while the narrative elsewhere (and the claimant's evidence) states 13th March 2017.

minor

The Respondent's evidence is internally inconsistent on the employer pension contribution rate.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Emojong v Henkel Chemicals (EA) (Employment and Labour Relations Cause 1910 of 2021) [2025] KEELRC 259 (KLR)", Case Analysis (2025). Not stated in the judgment as provided (Memorandum of Claim dated 26th September 2017, Amended Statement of Claim dated 27th September 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/259/eng@2025-02-03

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