Neser v Globology Limited & 7 others (Cause E033 of 2024) [2025] KEELRC 1777 (KLR)
The bottom line
#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 termination of the Claimant's employment was unfair and/or unlawful
- 2.Whether the Claimant was subjected to discrimination during employment or upon termination
- 3.Whether the Claimant is entitled to benefits under ESOP
- 4.Whether the Claimant is entitled to damages for alleged mental and psychological distress
- 5.Whether the motor vehicle registration number KBX 925V formed part of the Claimant's terminal entitlements and whether the 2nd to 8th Respondents are properly joined and necessary parties
- 6.Whether the Claimant is entitled to the reliefs sought
- 7.Who should bear the costs of the suit
Key legal issues
#Whether the termination was unfair and unlawful
The termination was unfair and unlawful; the disciplinary process was commenced with the ulterior motive of ensuring dismissal after failed mutual separation talks.
The Claimant was on the verge of a mutually agreed separation when the 1st Respondent instead preferred myriad accusations of misconduct leading to dismissal. A disciplinary process commenced purely for the ulterior motive of ensuring a dismissal cannot be fair or lawful under section 41 of the Employment Act. The ensuing process was found replete with malice and marred with illegalities, culminating in a dismissal that was unprocedural and without reason.
Whether the Claimant was discriminated against
Discrimination was established: denial of compassionate leave to visit his terminally ill father and victimisation for raising emoluments issues constituted discrimination and unfair treatment.
The court held that discrimination is not limited to race and gender; denial of leave to attend to a terminally ill parent and failure to review compensation evidenced discrimination and unfair treatment. Section 5(7) of the Employment Act places the burden on the employer to prove no discrimination occurred, and the Respondents failed to discharge it. Punishing an employee for raising emoluments concerns is prohibited under section 46(h).
Whether the Claimant is entitled to ESOP benefits and whether the 2nd to 8th Respondents were properly joined
The joinder of the 2nd to 8th Respondents was necessary and appropriate, and the Claimant was entitled to his share of shares valued at USD 233,316.86.
The Claimant was instrumental in securing the Shell Foundation grant, and the 2nd to 8th Respondents as board members were tasked with conditions of the employee share programme. Relying on Transport and Allied Workers Union v Kenya Bus Services, the court found the joinder appropriate given their central role in denying employee benefits connected to shares. Denying him the shares would be unconscionable.
Whether the Claimant is entitled to damages for mental and psychological distress
Yes; the Claimant availed medical reports establishing mental and psychological distress flowing from the Respondents' conduct, and the ELRC is the proper forum.
The court rejected the Respondents' argument that psychological injury claims lie only in constitutional petitions, holding that sick leave is a recognised benefit under the Employment Act and the Employment Court is the proper forum where employee rights are abridged. Medical reports availed by the Claimant provided a basis for finding in his favour, warranting Kshs. 1,000,000 in damages.
Whether motor vehicle KBX 925V formed part of the Claimant's terminal entitlements
The vehicle was a term of the contract per Clauses 6.4 and 6.7, computed as USD 68,000, notwithstanding the car hire arrangement.
Clause 6.4 stipulated the company would provide a suitable vehicle for a family of five, and Clause 6.7 provided for payment of USD 5,700 monthly in lieu of the listed emoluments including the vehicle. The court found the vehicle was a term of the contract and the mere fact it was under a car hire agreement did not detract from its intent and purpose.
Legal principles established
#- A disciplinary process commenced purely for the ulterior motive of ensuring a dismissal cannot be fair or lawful under section 41 of the Employment Act
- Punishing an employee for raising legitimate concerns about emoluments is prohibited under section 46(h) of the Employment Act and amounts to discrimination
- The employer bears the burden of proving that alleged discrimination did not take place
- A benefit such as a company vehicle provided under the employment contract is a term of the contract even if under a car hire arrangement
Court orders
#- 1.A declaration that the termination of his employment was unfair and unlawful
- 2.Damages for discrimination – Kshs. 1,000,000/-
- 3.Damages for mental and psychological distress suffered as a result of the Respondents denial of compassionate leave – Kshs. 1,000,000/-
- 4.A declaration that the vehicle KBX 925V constitutes part of the emoluments of the Claimant computed as USD 68,000
- 5.Three months' salary in lieu of notice pursuant to Clause 15.5A of the Employment Contract USD 34,050 (net of taxes)
- 6.12 months compensation for unlawful termination – USD 136,200
- 7.30 days of unused leave equivalent to USD 11,350
- 8.USD 233,316.86 as part of his share of the shares forming part of his contract
- 9.Costs of the suit to the Claimant
- 10.Interest at court rates on the sums in (b), (c), (d), (e), (f), (g) and (h) above from the date of judgment till payment in full
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 45, 46(h), 49) and Articles 27 and 41 of the Constitution
Relief refused
#Damages for defamation
The Claimant did not prove defamation
Severance pay
Severance pay arises only in redundancy, which was not the case; not included in the final orders
Costs
Costs of the suit to the Claimant, payable by the Respondents
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.
Where disciplinary process is commenced purely for the ulterior motive of ensuring a dismissal, such disciplinary process cannot be said to be fair or lawful in terms of section 41 of the Employment Act.
Only a cruel and sadistic employer can deny a person the necessary accommodation to ensure dignity for loved ones who are terminally ill. Compassionate leave is called compassionate for that simple reason.
I thus find and hold that the joinder of the 2nd to 8th Respondents was not only necessary but rather appropriate given the central role they played in ensuring the denial of employee benefits connected to the shares the Claimant was entitled to.
It is therefore my finding that the vehicle was a term of the contract and the mere fact that it was under a car hire agreement does not detract from its intent and purpose. It was a term of the contract.
The Claimant did not prove defamation and is not entitled to recover on the claim.
In the final analysis it is my finding that the Claimant is entitled to:
Interest at court rates on the sums in (b), (c), (d), (e), (f) (g) and (h) above from the date of judgment till payment in full.
Issues in the judgment
#The court found the medical reports supported the claim but described them in contradictory terms
Typographical errors in the judgment including 'Article 27 ad 41' and 'parre materia'
Claimant sought severance pay of USD 36,482 and 4.5 months' interrupted annual leave of USD 51,075, but neither appears in the final orders nor is expressly refused with reasons
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Neser v Globology Limited & 7 others (Cause E033 of 2024) [2025] KEELRC 1777 (KLR)", Case Analysis (2025). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1777/eng@2025-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.