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Case Brief · caselaw.co.ke
ELRCPartially AllowedELRC Cause (Memorandum of Claim dated 14th September 2022; filed 23rd September 2022)

Onsarigo v Auditor General (Cause E674 of 2022) [2025] KEELRC 507 (KLR)

Employment and Labour Relations Court
25 February 2025
5,801 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Even when an employee clearly deserves dismissal, Kenyan employers must still follow a fair hearing process or the termination becomes unfair and compensable.

What this practically means

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Executive summary

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The Claimant, employed by the Office of the Auditor General since 1996 and earning Kshs. 220,000 monthly, was granted 25 months' unpaid study leave from September 2013 to pursue a Master's degree in Australia. He failed to gain admission at Queensland University of Technology and enrolled at Griffith University instead, completing a Master of Financial Planning in June 2019. His leave expired around September 2015, but he communicated his changed circumstances only in June 2015 and November 2016, never sought an extension, and only sought reinstatement in 2019. The Respondent issued a show cause letter for desertion in November 2016 to his last known address, later summoned him before an Ad Hoc HR Committee which recommended termination for unauthorised absence, and terminated his employment on 24th March 2022 backdated to 1st October 2016. The Claimant sued for unlawful termination and discrimination, seeking reinstatement, general damages of Kshs. 8,000,000, loss of future earnings, twelve months' compensation, terminal benefits, costs and interest. The court held that valid reasons for dismissal existed because the Claimant overstayed his leave without extension or adequate communication, but found the dismissal procedurally unfair since the Respondent afforded no hearing as required by section 41 of the Employment Act. Unfairness speaking of process, the court awarded one month's salary in lieu of notice, six months' salary as compensation, terminal dues per the employment contract, and costs with interest, rejecting reinstatement and the Claimant's wider heads of damages.

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 was wrongfully/unfairly terminated from employment
  2. 2.Whether there was a valid reason for the termination
  3. 3.Whether the termination process was conducted fairly in accordance with fair procedure
  4. 4.Whether the Claimant is entitled to the damages and reliefs sought

Key legal issues

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01

Whether there was a valid reason for termination

Holding

Yes - the claimant overstayed his 25-month unpaid study leave, failed to communicate his changed circumstances and never sought an extension, amounting to prolonged absence/desertion justifying dismissal.

Reasoning

The study leave granted on 26th August 2013 was for 25 months and expired around September 2015. The claimant's earliest written communication of his change of university and later health challenges was June 2015 and November 2016, and he never applied for extension of leave. The court therefore accepted the respondent's substantive justification for dismissal despite finding the process unfair.

p. 11
02

Whether the termination followed fair procedure under sections 41 and 45 of the Employment Act

Holding

No - the claimant was dismissed without a hearing as envisaged under section 41, rendering the termination procedurally unfair.

Reasoning

After the claimant returned and sought reinstatement, the respondent dismissed him without affording him a hearing, explanation of reasons, or opportunity to be accompanied as required by section 41 of the Employment Act, 2007. Although valid reasons existed, unfairness speaks to process, and the failure to give any hearing offended section 45(2) on fair procedure.

p. 12
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What remedies flow from the unfair termination

Holding

One month's salary in lieu of notice, six months' salary as compensation for unfair termination, and terminal dues as per the employment contract, with costs and interest.

Reasoning

Having found the dismissal procedurally unfair despite valid reasons, the court exercised its discretion to award compensation equivalent to six months' gross salary rather than the twelve months sought, plus notice pay and contractual terminal dues, declining the claimant's broader heads of damages.

p. 12

Legal principles established

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  • A termination may be substantively justified yet procedurally unfair where the employee is not afforded a hearing under section 41 of the Employment Act.
  • An employer who fails to adhere to the terms of a study leave as granted, and who does not communicate delays or seek an extension, gives the employer valid reason to dismiss for prolonged absence.

Court orders

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  1. 1.1 month's salary in lieu of notice of Kshs. 220,000/-
  2. 2.6 months' salary as compensation for the unfair termination, Kshs. 1,320,000/- (total with notice Kshs. 1,540,000/-)
  3. 3.Payment of the Claimant's terminal dues as per the employment contract
  4. 4.Respondent to pay costs of the suit plus interest at court rates with effect from the date of judgment

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 (admitted by the Respondent in its Statement of Defence)

Relief refused

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Reinstatement to employment

Court found valid reasons for dismissal existed and awarded compensation instead; dismissal was unfair only as to process

p. 12

General damages for wrongful termination, discrimination, mental and psychological anguish (Kshs. 8,000,000)

Not awarded; only notice pay, statutory compensation and terminal dues granted

Loss of future earnings (Kshs. 36,000,000)

Not awarded

Twelve months' compensation for unlawful termination

Court awarded only six months' compensation

p. 12

Costs

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

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.

Having indicated as above, it is clear that there were valid reasons to warrant dismissal of the claimant.
p. 12substantive justification for dismissal
There was no indication however that the respondent subjected him to any due process as envisaged under section 41 of the employment act 2007
p. 12procedural fairness under section 41
In view of the fact that the claimant was not given any hearing before his dismissal, I find his dismissal unfair. Unfairness speaks of the process in this case despite there being valid reason for the dismissal.
p. 12procedural unfairness despite valid reason
1. 1 months’ salary in lieu of notice=220,000/- 2. 6 months salary as compensation for the unfair termination = 6x220,000/- = 1,320,000/-
p. 12final orders - remedies awarded
The respondents will pay costs of this suit plus interest at court rates w.e.f the date of this judgement.
p. 12costs order

Issues in the judgment

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minor

Judgment inconsistently records the date the claimant appeared before the HR Sub-Committee: the Respondent's submissions and claim say 22nd October 2021, while the Respondent's witness statement says 22nd October 2022.

minor

The judgment's reproduction of documents is inconsistent: an email of 30 October 2018 is introduced as a letter of 27/1/2022 and a letter of 30/10/2018 is referenced that is not separately produced; the quoted email body also contains garbled addressing.

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, "Onsarigo v Auditor General (Cause E674 of 2022) [2025] KEELRC 507 (KLR)", Case Analysis (2025). ELRC Cause (Memorandum of Claim dated 14th September 2022; filed 23rd September 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/507/eng@2025-02-25

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