Birir v National Water Harvesting & Storage Authority & another (Cause E264 of 2024) [2025] KEELRC 2241 (KLR)
The bottom line
#Kenya's Employment Court ruled KeRRA fired an employee without a fair hearing, awarding her Kshs 736,520 despite proving one valid reason for dismissal.
What this practically means
#Executive summary
#Key legal issues
#Valid and fair reason for termination - absence from duty
Not proved; Respondents failed to exhibit attendance register
The Respondents alleged the Claimant failed to resume duty after leave, but did not produce the attendance register or any document confirming absence. Under Section 43(1) of the Employment Act the evidential burden lay on the employer. The Claimant's own account had gaps, but the employer failed to discharge its burden of proof on this ground.
Valid and fair reason - participation in elective politics without resignation
Proved on a balance of probabilities
A Gazette Notice listed the Claimant as a candidate for Bomet County Women Representative, corroborated by an EACC letter. As a public officer she was required to resign six months before the elections under Gazette Notice No. 433 of 2022 and the Head of Public Service Circular of 28th January 2022, and there was no evidence of resignation. The standard was the balance of probability under Section 43(2) of the Employment Act.
Procedural fairness
Termination was procedurally unfair
Notices to show cause and hearing invitations were sent by internal memoranda although the Claimant was allegedly absent from office, no emails were exhibited, and the employer's HR Manual required a show cause letter to an absent employee to be addressed to her last known address. The termination letter itself used her registered postal address. There was no evidence she was afforded an opportunity to be heard, contrary to Section 41 of the Employment Act.
Reliefs
Reinstatement declined; notice pay and three months' compensatory damages awarded
Because a valid reason was proved, reinstatement was untenable. However, since the procedure was unfair, the court awarded one month's salary in lieu of notice and three months' salary as compensatory damages, guided by Section 49(4) of the Employment Act including the employee's contribution to the termination. Certificate of service, pension facilitation and costs were also granted.
Legal principles established
#- The standard of proof in employment termination matters is on a balance of probability
- The evidential burden is on the employer to prove the reasons for termination under Section 43(1) of the Employment Act
- Notices to show cause and hearing invitations dispatched through internal memoranda to an employee absent from duty, contrary to the employer's own HR Manual requiring last known address, do not satisfy Section 41 of the Employment Act
Court orders
#- 1.A declaration that the termination of the Claimant's employment was procedurally unfair
- 2.One (1) month's salary in lieu of notice being the sum of Kshs 184,130/=
- 3.Compensatory damages in the sum of Kshs 552,390.00 (three months' gross salary)
- 4.Total award of Kshs 736,520.00
- 5.Interest on the award at court rates from the date of Judgment until payment in full
- 6.The Claimant shall be allowed and facilitated to access her pension benefits
- 7.The Claimant shall have the costs of the suit
- 8.Certificate of service to be issued within 30 days from the date of Judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 41, 43, 45, 49)
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.
- Charo v Shreeji Enterprises Limited (Appeal E254 of 2024) [2025] KEELRC 2684 (KLR)[2025] KEELRC 2684 (KLR)2 Oct 2025applied
Cite this brief
#Cite this brief
Caselaw, "Birir v National Water Harvesting & Storage Authority & another (Cause E264 of 2024) [2025] KEELRC 2241 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2241/eng@2025-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.