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ELRCPartially AllowedNot stated in the judgment as provided· [2025] KEELRC 1395 (KLR)

Nderitu v Kenya Airways PLC (Cause E655 of 2022) [2025] KEELRC 1395 (KLR)

Employment and Labour Relations Court of Kenya
14 May 2025
HWHellen Wasilwa
3,339 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an employer unfairly fired a procurement officer for a good-faith contract interpretation mistake, awarding him Kshs. 2,080,000.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 2014 and risen to Materials Planner, CSP Administration, was summarily dismissed on 5th February 2020 for allegedly failing to diligently interpret the Kenya Airways–KLM contract, resulting in an overcharge of about USD 357,000 in late return fees. He claimed declarations that the dismissal was illegal and unfair, 12 months' salary as compensation, three months' notice pay, service gratuity, interest and costs. The Respondent maintained the dismissal was for a justifiable reason following due process, including a show-cause letter, disciplinary hearing and two dismissed appeals. The court found the real dispute concerned the interpretation of the contract clause on late fees, on which the Respondent and KLM themselves held different views, and which the contract's Article 18.2 required to be resolved through ADR - a route the Respondent never took. The Respondent produced no billed invoices or comparative calculations proving the alleged loss, nor any audit attributing it to the Claimant, and the amounts were ultimately recovered. Holding that a good-faith interpretation of a disputed contract clause cannot ground a fair reason for dismissal, the court found the dismissal substantively unjustified and unfair under Sections 43 and 45 of the Employment Act. The Claimant was awarded one month's notice pay (Kshs. 240,000) and eight months' salary as compensation (stated as Kshs. 1,840,000), totalling Kshs. 2,080,000 less statutory deductions, plus costs and interest; the 12-month compensation claim and service gratuity were not granted as sought.

Key legal issues

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01

Whether the reason for dismissal - failure to diligently interpret the KLM contract leading to overcharging of USD 358,982.17 - was valid and fair

Holding

Dismissal was unfair; the reason was invalid as the dispute was one of contract interpretation between the Respondent and KLM and was beyond the Claimant's individual capacity

Reasoning

The evidence showed the issue concerned interpretation of a contract clause on late fees. The Respondent and KLM held differing interpretations, and the contract's Article 18.2 required such disputes to go to ADR, which the Respondent never invoked. The billed invoices and comparative calculations were not produced, so the loss was unproven. The Claimant cannot be vilified for a disagreement that was even resolved between the parties.

p. 6
02

Burden of proof under Section 43 of the Employment Act

Holding

The Respondent failed to demonstrate the validity of the reason for dismissal

Reasoning

Section 43 requires the employer to prove the reasons for termination; where it fails, termination is deemed unfair under Section 45. RW1 confirmed the incorrect invoices and a comparative invoice showing the correct calculation were never produced in court, and no audit or financial statements substantiated the alleged loss attributable to the Claimant.

p. 7

Legal principles established

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  • The employer bears the burden of proving the reason(s) for termination; failure renders the termination unfair
  • A genuine misinterpretation of a contract clause by an employee, where the correct interpretation was a matter of dispute between the employer and a third party resolvable by ADR, cannot constitute a valid fair reason for dismissal

Court orders

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  1. 1.1 month salary in lieu of notice of Kshs. 240,000
  2. 2.8 months' salary as compensation for unfair termination (8 x 240,000) which cut short the Claimant's career
  3. 3.Total award of Kshs. 2,080,000 less statutory deductions
  4. 4.Respondent to pay costs of the suit plus interest at court rates from the date of judgment
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 over termination of employment (Sections 43 and 45 applied)

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, "Nderitu v Kenya Airways PLC (Cause E655 of 2022) [2025] KEELRC 1395 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1395/eng@2025-05-14

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