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ELRCPartially AllowedEmployment and Labour Relations Cause (memorandum of claim dated 7th March 2019)

Elijah v Kenya Airways Plc (Cause 151 of 2019) [2025] KEELRC 2347 (KLR)

Employment and Labour Relations Court
30 July 2025
12,396 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~50 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld Kenya Airways' summary dismissal of an employee over unauthorised forex dealings, awarding only unpaid leave of Kshs. 246,400.

What this practically means

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Executive summary

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The claimant, employed by Kenya Airways, was suspended on 7th March 2016 to allow investigations into alleged unauthorised forex transactions and misappropriation. He was issued a show cause letter on 25th April 2016, responded to it, and was invited to a disciplinary panel hearing on 3rd May 2016. Complaining of short notice and non-disclosure of documents, he declined to attend; the panel proceeded in his absence and he was summarily dismissed for gross misconduct. He appealed internally and then sued for special damages, salary, three months' notice pay, gratuity, untaken leave and 12 months' salary as general damages for unfair termination. The court framed two issues: whether the termination was lawful and fair, and entitlement to reliefs. On substance, applying the British Leyland reasonableness test and section 44(4), the court found the employer had reasonable grounds to suspect the claimant of unauthorised forex dealings and fraud, his job description not covering forex transactions, and upheld the reasons for dismissal as lawful. On procedure, the court held the section 41 requirements were met: the show cause letter detailed the charges, he was invited to a hearing with a right to accompaniment, and his refusal to attend amounted to squandering the internal mechanisms; the short-notice excuse was unjustified. Only the claim for untaken leave succeeded because the respondent produced no employment records to counter it. Judgment was entered for Kshs. 246,400 with interest, ½ costs to the claimant, and a 30-day stay. The claim was otherwise dismissed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the termination of the claimant's services was lawful and fair
  2. 2.Whether the claimant was entitled to reliefs sought

Key legal issues

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01

Whether the summary dismissal was substantively fair (valid and fair reasons)

Holding

Yes. The court found valid grounds: the claimant initiated unauthorised forex transactions outside his job description and there were reasonable grounds to suspect fraud, justifying summary dismissal under section 44(4).

Reasoning

The court noted the claimant's job description did not include forex transactions and he produced no contrary document. Evidence showed he offered ZAR 11 million for sale to Dubai Bank and was active in the transactions. The reasonableness test from British Leyland v Swift was applied, and the employer only needed genuine belief on reasonable grounds. The court upheld the reasons for termination as lawful.

p. 17
02

Whether the procedure followed was fair under section 41

Holding

Yes. The claimant was issued a show cause letter, responded, was invited to a panel hearing with the right to be accompanied, and squandered the internal mechanisms by refusing to attend; the excuse of short notice was unjustified.

Reasoning

The court applied Postal Corporation v Tanui and Chitavi on the section 41 elements, and Wilson Mutabari Mworia on the sufficiency of the show cause charges. The claimant did not explain how the long weekend impeded contacting fellow employees, and an employer is entitled to proceed where an employee declines to attend a properly convened hearing.

p. 19
03

Entitlement to reliefs

Holding

Only untaken leave was awarded; salary for May beyond worked days, notice pay and gratuity were refused.

Reasoning

The claimant confirmed receipt of the dismissal letter on 3rd May and payment for the 3 days worked. Notice pay was inapplicable to summary dismissal. Gratuity was discretionary and unproven. On leave, the respondent did not produce employment records to counter the claim, so Kshs. 246,400 was awarded as sought.

p. 20

Legal principles established

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  • To pass the fairness test, a termination must satisfy both substantive fairness (valid and fair reasons) and procedural fairness under section 41 of the Employment Act.
  • An employer may dismiss an employee under section 44(4) where there are reasonable and sufficient grounds to suspect the employee committed a criminal offence against the employer's detriment.
  • Fair hearing is deemed granted where a party is given an opportunity to present their own case; short notice must be shown to have actually impeded preparation.

Court orders

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  1. 1.Payment of untaken leave in lieu of Kshs. 246,400 with interest at the court rate from the date of filing the suit
  2. 2.The claimant is granted ½ costs in the claim
  3. 3.A stay of 30 days is granted

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 44 and 45)

Relief refused

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Payment of salary for May 2016 beyond the 3 days worked

The claimant was dismissed on 3rd May 2016 and was already paid for the days worked; no basis for salary after dismissal.

p. 19

Three months' pay in lieu of notice

Not due since the claimant was summarily dismissed following a fair procedure.

p. 19

Gratuity for 6 years of service

Gratuity was not a contractual benefit; it is discretionary and gratuitous, and the claimant had no proof of entitlement.

p. 20

12 months' salary as general damages for unfair dismissal

The court found the summary dismissal substantively and procedurally fair.

p. 20

Costs

The claimant is granted ½ costs in the claim.

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 court holds that the termination was lawful and fair. The court found that the claim for untaken leave was successful.
p. 20disposition - outcome of the claim
Payment of untaken leave in lieu of Kshs. 246,400 with interest at the court rate from the date of filing the suit.
p. 20final orders - relief granted
The claimant is granted ½ costs in the claim.
p. 20final orders - costs
The court finds the excuse of short notice not to participate in the internal mechanisms of the employer was not justified.
p. 19procedural fairness - short notice
The employer on reasonable suspicion of fraud or theft by employee would be entitled to dismiss the employee under section 44 (4) of the Employment act
p. 17substantive fairness - summary dismissal on reasonable suspicion
Gratuity, being not a benefit under contract, can only be at the discretion of the employer. In other words it is gratuitous and not a right.
p. 20gratuity

Issues in the judgment

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minor

Internal contradiction on the suspension date: paragraph 6 and 27 state the claimant was suspended on 7th March 2016, but paragraph 26(a) states he was suspended on 3rd March 2016.

minor

The judgment gives inconsistent dates for the panel hearing: paragraph 43 refers to a hearing on 3rd May 2026, while all other references are to 3rd May 2016.

minor

The judgment misstates the spousal remittance period in the respondent's summary as June 2014 versus April/May 2015 elsewhere: 'between January and June 2014, the Claimant had received a total of Kshs. 14,500,000.00' appears in one passage and 'between January and June 2015' in another.

minor

Internal inconsistency in the claimant's pleaded salary: the appointment letter is dated 21st June 2015 at Kshs. 246,400 in the claimant's case, while the respondent pleads a contract dated 26th May 2010 at Kshs. 200,000; the judgment does not resolve the discrepancy.

minor

No neutral citation or cause number appears in the judgment text; only the claim filing date identifies the matter.

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, "Elijah v Kenya Airways Plc (Cause 151 of 2019) [2025] KEELRC 2347 (KLR)", Case Analysis (2025). Employment and Labour Relations Cause (memorandum of claim dated 7th March 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2347/eng@2025-07-30

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