Wang’ombe v Jomo Kenyatta Foundation (Cause E737 of 2022) [2025] KEELRC 1188 (KLR)
The bottom line
#A Kenyan court upheld an employee's dismissal for absconding and poor performance, confirming that unauthorised leave amounts to gross misconduct.
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 Claimant's contract was terminated unfairly by the Respondent, under Sections 41, 43 and 45 of the Employment Act
- 2.Whether she merits an order of reinstatement or the alternative prayers
- 3.Whether the Respondent has established its Counterclaim
- 4.Who should bear the costs of the Claim and the Counterclaim?
Key legal issues
#Procedural fairness of termination (Section 41)
Procedure was fair; no procedural flaws found
The Claimant was issued a show-cause letter, responded, was invited to and appeared before a disciplinary committee, was advised of her right to be accompanied, was heard, and had a right of appeal which she exercised. The disciplinary process culminated in board approval of dismissal.
Substantive validity of the reason for termination (Sections 43 and 45)
Valid reasons existed - absconding, poor performance, insubordination and neglect of duty
The Claimant conceded on cross-examination that she missed targets from 2017 to 2020, was placed on PIP, received warnings, absconded duty and proceeded on leave without approval. Her poor performance predated Covid-19 and was compounded by absconding.
Discrimination and sexual harassment
Not established; the allegations were unsubstantiated
The Claimant's claim of sexual harassment was not supported by evidence of what Ogillo said or did. Her claim that others performed worse did not show discriminatory treatment, as the employer was entitled to assess employees individually.
The Counterclaim for Kshs. 165,273
Not proved; dismissed
The Respondent's witness did not entrust books to the Claimant and did not know her arrears. The claim required specific proof of the exact sum, and the Claimant's evidence of unreconciled accounts and returned books was more persuasive.
Legal principles established
#- Leave must be taken with the authorisation of the employer; unauthorised absence is gross misconduct
- Absence from work without leave or lawful cause is gross misconduct under Section 44(4)(a)
- An employer may discipline employees separately, and one employee's relatively better performance does not justify that employee's misconduct
- A specific monetary counterclaim requires specific proof
Court orders
#- 1.The Claim is declined
- 2.The Counterclaim is declined
- 3.No order on the costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- First-instance employment and labour relations dispute under the Employment Act, Sections 28, 41, 43, 44(4)(a) and 45
Relief refused
#Declaration that termination was unfair and unlawful
Termination was procedurally and substantively fair
Declaration of discrimination and harassment
No discrimination or sexual harassment was established
Reinstatement without loss of benefits
Termination was fair; reinstatement unmerited
Clearance, release of terminal dues and access to pension benefits
Claimant received Kshs. 1.5 million pension and did not show what was withheld
Alternative monetary prayers (leave pay, 12 months' compensation, discrimination damages, surcharge refund, unreimbursed dues, notice pay)
Not established; termination was for gross misconduct warranting summary dismissal
Costs
No order on the costs (each party bears own costs implicitly; court ordered 'No order on 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.
The Court has not found any procedural fiaws, leading to the Claimant's dismissal.
Section 28 of the Employment Act, while entitling Employees to annual leave, does not allow them to just walk out and back into their workplaces; leave must be taken with the authorisation of the Employer.
It is an act of gross misconduct under Section 44 [4] [a] of the Employment Act, where an Employee absents herself without leave or other lawful cause, from the place appointed for the performance of her work.
Her claims that others performed poorer than her, did not justify her own poor performance and absconding.
There is not an iota of evidence given by Cecil, specifically establishing the claim for Kshs. 165,273.
The Claim is declined.
The Counterclaim is declined.
No order on the costs.
Issues in the judgment
#Name of the Respondent's witness spelled inconsistently ('Cecil Wanyama' vs 'Cecil Daniel Weyama')
Chronological inconsistency in paragraph 13: supervisor's letter dated 5th September 2019 recounts visits on 31st October 2019 and 1st November 2019
Inconsistent disciplinary hearing dates in pleadings (16th December 2021 in Statement of Claim vs 22nd September 2021/2022 in other passages)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wang’ombe v Jomo Kenyatta Foundation (Cause E737 of 2022) [2025] KEELRC 1188 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1188/eng@2025-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.