Ochieng v Rhombus Concrete (Cause E057 of 2024) [2025] KEELRC 1010 (KLR)
The bottom line
#A Kenyan court ruled an employee's poor judgment in transport choice was not insubordination, awarding him Kshs 510,000 for unfair summary dismissal.
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 Respondent has proved that it had a valid and fair reason to terminate the employment of the Claimant.
- 2.Whether the Claimant's termination from employment was in accordance with a fair process.
- 3.Is the Claimant entitled to the reliefs sought?
Key legal issues
#Valid and fair reason for termination (insubordination under Section 44(4)(e) Employment Act)
The Respondent failed to prove a valid and fair reason. There was no evidence of an express prohibition on using other means of transport and no policy prescribing suitable means of transport; the Claimant's decision was a bad judgment call, not insubordination.
Under Sections 43(1) and 45(2)(a) and (b) of the Employment Act the employer must prove valid and fair reasons on a balance of probabilities. The claimed reason was insubordination - disregarding the line manager's instruction to use a cab. The court found no evidence of an express directive or a transport policy, and noted the Respondent's case in fact centered on the accident rather than insubordination. The Claimant's conduct fell short of the 'willful disregard' required for gross misconduct under Section 44(4)(e).
Fair procedure under Section 41 of the Employment Act
The procedure was fair: the Claimant received a detailed show cause letter, was invited to a disciplinary hearing with notice of his right to be accompanied, and appeared before the panel and gave his explanation.
Section 45(2)(c) requires the employer to prove procedural fairness, the content of which is set out in Section 41. The Claimant was notified of the allegations by a show cause letter dated 25th July 2023, invited by letter dated 26th July 2023 to a hearing on 31st July 2023, advised of his right to be accompanied, and did appear before the disciplinary panel where he articulated his case. This satisfied the minimum requirements of a fair hearing.
Entitlement to reliefs
Notice pay and compensatory damages of five months' salary awarded, taking into account the length of employment and circumstances of termination; the oral leave claim failed.
Having found the dismissal unfair on substantive grounds but procedurally fair, the court awarded one month's notice pay and five months' salary as compensatory damages, reflecting the length of the employment relationship and the circumstances of the termination. The oral amendment seeking leave pay failed because the amount was unspecified and leave had already been paid.
Legal principles established
#- An employer bears the burden under Sections 43 and 45 of the Employment Act to prove valid and fair reasons for termination; absent proof of defiance of an express directive or a policy requirement, relying on a subordinate's unilateral act does not constitute insubordination under Section 44(4)(e).
Court orders
#- 1.One (1) month's salary in lieu of notice being the sum of Kshs 85,000/=.
- 2.Compensatory damages in the sum of Kshs 425,000.00, being equivalent to five (5) months of his gross salary.
- 3.The total award is Kshs 510,000.00.
- 4.Interest shall apply on the amount in (c) at court rates from the date of Judgment until payment in full.
- 5.The Claimant shall also have the costs of the suit.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court under the Employment Act (claim for unfair termination/summary dismissal)
Relief refused
#Oral claim for accrued/unpaid leave days sought to be added by amendment at the hearing
The amount claimed was not specified; the Respondent had already paid Kshs 39,666.67 as earned leave, which the Claimant did not dispute and gave no basis for a further claim.
Costs
The Claimant shall also have the costs of the suit.
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 sum, the Court has not found any material to conclude that the Respondent has proved on a balance of probabilities that there was a valid and fair reason for its decision to summarily dismiss the Claimant from employment on grounds of insubordination.
It is therefore apparent from the foregoing that the Respondent did not adduce evidence that the Claimant had defied an express directive from his line manager or a policy requirement.
What is apparent to this Court is that the Claimant may have made a bad judgment call in electing to hitch a ride from the company's motorcycle as opposed to taking the taxi approved by his line manager.
I am persuaded that the procedure applied by the Respondent prior to terminating the Claimant's employment met the minimum requirements of a fair hearing as envisaged under Section 41 of the Employment Act.
In the final analysis, Judgment is entered in favour of the Claimant, and he is awarded: a. One (1) month's salary in lieu of notice being the sum of Kshs 85,000/=.
Compensatory damages in the sum of Kshs 425,000.00, being equivalent to five (5) months of his gross salary.
Issues in the judgment
#The judgment inconsistently dates the termination: the opening paragraph states 2024 while the rest of the judgment, including the summary dismissal letter, uses 4th August 2023.
The judgment inconsistently states the date of the Response to the Memorandum of Claim: it describes it as dated 30th April 2024 in a suit about a 2023 termination, and elsewhere the pleading sequence suggests it should predate the hearing.
The judgment inconsistently describes the Claimant's position: the pleadings summary calls him a Key Accounts Manager, while his own evidence describes him as a senior accountant.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ochieng v Rhombus Concrete (Cause E057 of 2024) [2025] KEELRC 1010 (KLR)", Case Analysis (2025). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1010/eng@2025-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.