Kamundia v National Cement Company Limited (Cause E070 of 2021) [2025] KEELRC 1927 (KLR)
The bottom line
#A Kenyan court found an employee's firing unfair because the real reason was never raised with him, yet awarded no money due to his 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 termination of the claimant's employment on 14 October 2020 was for valid reasons and conducted through fair procedure under sections 41, 43, 44 and 45 of the Employment Act
- 2.Whether the claimant is entitled to notice pay
- 3.Whether the claimant is entitled to gratuity pay based on alleged past practice
- 4.Whether the claimant is entitled to payment for 19.5 accrued leave days
- 5.Whether the claimant is entitled to 12 months' compensation for unfair termination
Key legal issues
#Fair procedure under sections 41 and 45 of the Employment Act
The termination was unfair because the incident at the Samburu plant leading to loss of life, which formed the basis of the termination notice, was never put to the claimant - it was absent from the show cause notice and the disciplinary hearing, and was not investigated
While a disciplinary hearing was held on 24 September 2020 on absenteeism, no action followed it. Two days before the termination notice, an incident occurred at the Samburu plant leading to loss of life. That matter was not investigated, was not in the show cause notice, and was not addressed at the hearing. Using new matters without notice or hearing ambushed the claimant and rendered the termination unfair.
Remedies - notice pay
Notice pay refused because the termination notice allowed 30 days' notice
The notice dated 14 October 2020 gave the claimant 30 days' notice, so he was expected to serve the notice period. The claim for notice pay was contextualised in the termination notice and the tabulation of terminal dues in November 2020, where notice was shown as zero.
Remedies - gratuity
Gratuity refused as it is gratuitous and discretionary, and NSSF contributions had been paid
The alleged practice of paying gratuities was not contractual, and payments to other employees (Ksh.500,000 and Ksh.100,000) differed without explanation. Following Alsaidco Alarm Limited v Njeru, where the employer has paid social security contributions such as NSSF, directing payment of gratuity would amount to double compensation.
Remedies - compensation under section 45(5)
Zero compensation awarded despite the finding of unfair termination, because of the claimant's gross misconduct and blemished work record
The court must assess compensation under section 45(5) taking into account the employee's work record. The claimant was guilty of gross misconduct at termination; the respondent chose termination with notice rather than summary dismissal. Awarding compensation would reward gross misconduct and undermine fair labour practices, as in Mbogo-Omollo and Lele v Mwaura.
Legal principles established
#- The employer's prerogative to discipline employees must be exercised within the confines of the law and the court will intervene where due process is breached
- Even where an employer is eager to sanction an employee for gross misconduct, adherence to section 41(2) of the Employment Act requiring notice, hearing and representations is imperative
- New matters arising after a disciplinary hearing cannot be used to terminate employment without notice or a hearing
- Where the employer has paid NSSF contributions, an award of gratuity would violate the principle against double compensation
Court orders
#- 1.Finding that the termination of the claimant's employment was wrongful, unlawful and unfair
- 2.Refusal of notice pay, the claimant having been granted 30 days' notice
- 3.Refusal of gratuity as it is gratuitous and discretionary, the respondent having paid NSSF dues
- 4.Leave days paid by the respondent (Ksh.11,871) accepted as part of terminal dues
- 5.Zero award of compensation under section 45(5) of the Employment Act given the claimant's gross misconduct
- 6.Each party to bear its own costs
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 (specific enabling provision not cited in the judgment)
Relief refused
#Notice pay Ksh.110,000
The termination notice gave the claimant 30 days' notice which he was to serve
Gratuity pay Ksh.275,000
Gratuity is gratuitous and at the employer's discretion; the respondent paid NSSF dues, so awarding gratuity would amount to double compensation
12 months' compensation Ksh.1,320,000
The claimant was guilty of gross misconduct at termination; awarding compensation would reward gross misconduct
Costs of the suit
Each party to bear its own costs
Costs
Each party is to bear its own 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 claim that there was wrongful, unlawful, and unfair termination of employment is correct.
Abruptly terminating employment due to the incident that occurred on 12 October 2020 without due process was to ambush the claimant, resulting in the unfair termination of his employment.
To award compensation under the claimant's circumstances would effectively reward gross misconduct.
Accordingly, the claims addressed above shall sufice. Each party is to bear its costs.
Issues in the judgment
#Internal inconsistency in the date of the Samburu plant incident: the court reasons it occurred on 12 October 2020 ('Two days before 14 October 2020 would mean 12 October 2020') but later states it occurred on 12 September 2020
Internal inconsistency on the date of the show cause notice: the claimant's submissions and the court's recital of the termination notice reference a show cause notice dated 14 October 2020, while the respondent's evidence and the court's earlier recital place it on 16 September 2020
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Amakobe v Majorel Kenya Limited (Employment and Labour Relations Cause E257 of 2022) [2025] KEELRC 3745 (KLR)[2025] KEELRC 3745 (KLR)19 Dec 2025
Cite this brief
#Cite this brief
Caselaw, "Kamundia v National Cement Company Limited (Cause E070 of 2021) [2025] KEELRC 1927 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1927/eng@2025-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.