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ELRCDismissedNot stated in judgment (memorandum of claim dated 12.05.2021)

Njiriri v Zizu Investments Limited (Cause E404 of 2021) [2025] KEELRC 1313 (KLR)

Employment and Labour Relations Court
9 May 2025
2,228 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed both an accountant's unfair termination claim and the employer's counterclaim, showing COVID-19 job losses and weak evidence can leave everyone empty-handed.

What this practically means

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Executive summary

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The claimant, formerly employed as an Accountant, sued for unpaid leave days (Kshs. 112,000), unpaid April 2020 salary (Kshs. 160,000), compensation of 12 months' gross salary (Kshs. 1,920,000), costs and interest, alleging unfair termination on 19.04.2020 without a hearing. The respondent defended the claim and counterclaimed for Kshs. 556,000 in damages for breach of contract plus one month's salary in lieu of notice, contending the claimant absconded after receiving a 30-day termination notice prompted by COVID-19 closures of its gymnasium business, and further objected to the Court's jurisdiction on the ground that the claimant earned Kshs. 40,000. The Court found the employment salary was Kshs. 40,000 per the payslips, and that monthly payments routed through Zulekha Nizar Samji's account were a separate consultancy engagement. It rejected the jurisdictional objection because the respondent could not both deny the Court's jurisdiction over the claim and invoke the same Court on its counterclaim - approbation and reprobation. Taking judicial notice of the COVID-19 pandemic, the Court held the termination by 30 days' notice under section 35(1)(c) of the Employment Act was with a fair reason and fair procedure; the claimant's absconding forecloses his claims, and the leave claim failed for want of particularisation and strict proof of special damages. The counterclaim failed because the claimant was not shown culpable for the losses and recovery was statutorily limited. Both the suit and the counterclaim were dismissed, with each party to bear their own costs.

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 employed by the respondent as accountant and at what salary (including whether payments via Zulekha Nizar Samji formed part of his salary)
  2. 2.Whether this Court has jurisdiction to hear and determine the suit and the counterclaim
  3. 3.Whether the termination of the claimant's employment was unfair
  4. 4.Whether the remedies prayed for by the claimant are justified
  5. 5.Whether the respondent's counterclaim succeeds

Key legal issues

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01

Jurisdiction of the ELRC over the claim and counterclaim

Holding

The Court had jurisdiction; the respondent was estopped by approbation and reprobation from denying it while invoking the same Court on its counterclaim

Reasoning

The respondent argued the Court lacked pecuniary jurisdiction because the claimant earned Kshs. 40,000 monthly, yet simultaneously asked the Court to determine its counterclaim. The Court held this inconsistent position was 'trapped by the principle of approbation and reprobation'. It found that under section 12(1) of the ELRC Act, read with Article 162(2) of the Constitution, the Court had exclusive jurisdiction and the parties properly invoked it.

p. 4
02

Whether termination was unfair

Holding

Termination was fair: a valid 30-day notice under section 35(1)(c) of the Employment Act was given for a fair reason (COVID-19 financial constraints)

Reasoning

The Court took judicial notice of the COVID-19 pandemic's financial impact on enterprises. The respondent elected to terminate by minimum notice under section 35(1)(c) rather than declare redundancy. The notice of 19.04.2020 expressly cited the pandemic and cost reduction. The claimant absconded instead of engaging on alternatives. A fair procedure and fair reason were established, and no redundancy remedies (severance or notice pay under section 40) were sought or contemplated.

p. 4
03

Whether the salary was Kshs. 40,000 or Kshs. 160,000

Holding

Employment salary was Kshs. 40,000; the Kshs. 120,000 monthly fee notes were a separate consultancy engagement with Zulekha Samji, not salary

Reasoning

The Court found per the payslips and PAYE deductions that the employment salary was Kshs. 40,000. Payments routed through Zulekha Nizar Samji's account related to fee notes raised for consultancy work done for her, with withholding tax deducted accordingly. The Court held this consultancy was a separate engagement from the employment relationship, upholding the respondent's case.

p. 4
04

Whether the counterclaim for damages succeeds

Holding

Counterclaim dismissed; claimant not shown culpable and recovery limited by statute

Reasoning

RW1 did not know whether the claimant or another person tampered with passwords or cabinet keys, so the claimant was not culpable on a balance of probabilities. Consultant fees after separation were the respondent's liability. Statutorily, recovery was limited to wages for absence, no disciplinary process was initiated, and the respondent was not pursuing notice pay for absconding. The parties' rights and obligations lapsed when the contract ended.

p. 5

Legal principles established

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  • A party cannot approbate and reprobate - it cannot simultaneously challenge and invoke the Court's jurisdiction
  • Under section 12(1) of the Employment and Labour Relations Court Act, 2011, the ELRC has exclusive original and appellate jurisdiction over employment and labour relations disputes under Article 162(2) of the Constitution
  • An employer may elect between termination by notice under section 35(1)(c) of the Employment Act and redundancy under section 40; where termination is by valid notice, redundancy-type remedies like severance pay do not arise
  • Claims for special damages such as unpaid leave must be particularly pleaded and strictly proved

Court orders

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  1. 1.The claimant's suit is dismissed
  2. 2.The respondent's counterclaim is dismissed
  3. 3.Each party to bear own costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 12(1) of the Employment and Labour Relations Court Act, 2011 and Article 162(2) of the Constitution

Relief refused

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Unpaid annual leave days (21 days) - Kshs. 112,000

Claim for special damages not particularised and not strictly proved

p. 4

Unpaid salary for April 2020 - Kshs. 160,000

Claimant did not work in April after receiving the termination notice, so no pay could flow without demonstrated services

Compensation for unfair termination - Kshs. 1,920,000

Termination was not unfair; a fair procedure was adopted and a fair reason established

p. 4

Counterclaim damages of Kshs. 556,000 and salary in lieu of notice Kshs. 40,000

Claimant not shown culpable on a balance of probabilities; relationship had ended; statutory recovery limited; respondent not pursuing notice pay

p. 5

Costs

Each party to bear own costs

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 conclusion, the claimant’s suit and the respondent’s counterclaim are both dismissed with orders each party to bear own costs.
p. 5Final orders/disposition
the Court has exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and provisions of the Act
p. 4Jurisdiction of the ELRC
It appears to the Court that the respondent had an election to go for termination by giving notice or by invoking redundancy.
p. 4Employer's election between notice termination and redundancy
The Court has found that the respondent adopted a fair procedure and a fair reason was established to justify the termination.
p. 4Fairness of termination
Such special damages required particularised pleading and to be strictly proved. That was not done. The prayer must fail.
p. 4Particularisation and proof of special damages
On a balance of probabilities, the claimant has not been shown culpable and cannot be held liable to meet the expenses of the claims for recovery of the keys or passwords.
p. 5Counterclaim dismissed

Issues in the judgment

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minor

Typographical errors in judgment text (e.g. 'efiectively', 'fiow', 'difiicult', 'hear at ago')

minor

The judgment does not state the case number of the suit

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, "Njiriri v Zizu Investments Limited (Cause E404 of 2021) [2025] KEELRC 1313 (KLR)", Case Analysis (2025). Not stated in judgment (memorandum of claim dated 12.05.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1313/eng@2025-05-09

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