Ndung’u v African Mission Health Care (K) (Cause E859 of 2021) [2025] KEELRC 432 (KLR)
The bottom line
#A Kenyan court ruled a Finance Manager's dismissal was fair in substance but unfair in procedure, awarding three months' salary.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the termination of the claimant's employment by the respondent was fair
- 2.Whether the claimant is entitled to reliefs sought
- 3.Whether the claimant waived his right to pursue other claims against the respondent
Key legal issues
#Whether the respondent had a valid and fair reason to terminate the claimant's employment
Yes - the respondent proved on a preponderance of probabilities that it had substantive and fair reason to terminate, applying Section 43(2) and the genuine-belief test
The court applied Section 45 and 43(2) of the Employment Act and the balance-of-probabilities standard from KRA v Reuwel Waithaka Gitahi, and the 'band of reasonable responses' test. The seven allegations touched on the claimant's role as Finance Manager, integrity and trust. The claimant gave general or no responses to several allegations. The witch-hunt and conflict-of-interest allegations were not evidenced. Substantive justification was therefore established.
Whether the termination followed a fair procedure
No - the notice periods were unreasonably short (3 days to respond to the notice to show cause, 4 working days to prepare for the hearing, 48 hours to appeal), rendering the termination procedurally unfair under Sections 41 and 45(4) and (5)
While the notice to show cause, hearing and minutes existed and the committee's composition and the supervisor-as-accuser were not fatal, the court found the notice periods unreasonably short given the seven allegations and the complexity of records to be examined, the hearing notice lacked venue, time and mode, and the appeal window of 48 hours was patently too short, impacting the claimant's right to be heard.
Whether the claimant waived his right to pursue other claims by signing the discharge voucher
No - the voucher did not state it was in full and final settlement and the claimant executed a disclaimer expressly preserving further claims
Applying Coastal Bottlers v Kimathi Mithika and related Court of Appeal decisions, a discharge voucher is binding if executed voluntarily with understanding of its import. Here the voucher acknowledged payment of specific dues, did not state full and final settlement, and contained a disclaimer that signing did not bar further claims. It therefore did not bar the instant suit.
What reliefs flow from the finding of procedural unfairness
Declaration of unfair termination and three months' salary compensation under Section 49(1)(c); notice pay, overtime and the constitutional declaration refused
Compensation was scaled down to three months because the claimant served about 7 years, had no prior recorded misconduct and appealed, but his conduct substantially contributed to the termination. Notice pay failed because substantive justification existed; the overtime claim lacked particulars and the contract excluded overtime; the constitutional declaration lacked particulars.
Legal principles established
#- For a termination to pass the fairness test there must be both substantive justification and procedural fairness
- The standard of proof in employment termination is on a balance of probability, not beyond reasonable doubt
- Discharge vouchers and settlement agreements are binding contracts if executed voluntarily and with understanding of their import, but a voucher with a disclaimer barring further claims does not defeat subsequent claims
- Procedural tenets in Section 41 of the Employment Act are mandatory and non-compliance renders termination procedurally unfair
- Short notice to respond to allegations and prepare for a disciplinary hearing, and inadequate time to appeal, render the process procedurally unfair
Court orders
#- 1.Declaration that termination of the claimant's employment by the respondent was unfair
- 2.Equivalent of three (3) month's gross salary Kshs.452,336.40
- 3.The claimant is awarded 50% of the costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment dispute)
Relief refused
#Declaration that the respondent violated the claimant's constitutional rights (fair administrative action, fair labour practices, freedom from discrimination)
No particulars of the alleged violations were pleaded or given in evidence
12 months' compensation
Award limited to 3 months because the claimant's conduct substantially contributed to the termination
2 months' salary in lieu of notice
Substantive justification existed under Section 44(4)(c) and (e) of the Employment Act
Unpaid overtime Kshs.836,322.24
No particulars or evidence of overtime; contract expressly excluded overtime
Costs
The claimant is awarded 50% of the costs
Quotable passages
#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 upshot, judgment is entered in favour of the claimant against the respondent as follows: a. Declaration that termination of the claimant's employment by the respondent was unfair. b. Equivalent of three (3) month's gross salary Kshs.452,336.40. c. The claimant is awarded 50% of the costs.
the respondent employer did not in the circumstances of the case act according with just and equity in terminating the claimant's employment and the same was procedurally unfair and the court so finds.
it is the finding of the court that the respondent has demonstrated on a preponderance of probabilities that it had a substantive and fair reason to terminate the claimant's employment on 5th October, 2020.
for a termination to pass the fairness test, it must be shown that there was not only substantive justification for the termination but also procedural fairness
A duration of 48 hours is patently too short and not reasonable.
although the discharge voucher was a binding contract, it did not by itself bar the claimant from pursuing any further or other claim he may have had against the respondent
Issues in the judgment
#Paragraph numbering is duplicated/inconsistent - two paragraphs numbered 97 and 154, and numbering skips 123, 133 and 166
The claimant's response letter is inconsistently dated - the judgment says the response was to a notice dated 27th August 2020 but describes the response as dated 30th March 2020
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndung’u v African Mission Health Care (K) (Cause E859 of 2021) [2025] KEELRC 432 (KLR)", Case Analysis (2025). Not stated in the judgment (memorandum of claim filed 21st October 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/432/eng@2025-02-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.