Aegis Construction Limited v Kihenja (Employment and Labour Relations Appeal E035 of 2024) [2025] KEELRC 2375 (KLR)
The bottom line
#A Kenyan court ruled an employee was dismissed, not resigned, and that skipping the hearing requirement makes any dismissal unfair — even when the reason is valid.
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 respondent resigned or he was dismissed
- 2.If the answer to (a) is dismissal, whether it was unfair and unlawful
- 3.Whether the award of damages by the trial court should stand
Key legal issues
#Resignation versus dismissal
The respondent never resigned; his services were terminated by the appellant on account of physical incapacity, as evidenced by payment of one month's salary in lieu of notice and the unrebutted testimony of what Mr. Hitesh told him.
The appellant admitted no resignation letter was received. It paid one month's salary in lieu of notice plus 7 days' salary, and a 'PAY OFF' document cited sickness/accident as the reason for exit. When the respondent returned in 2021, the HR Manager said he had been dismissed. That evidence was unrebutted because Mr. Hitesh never testified.
Validity of the reason for termination under section 45
The reason for termination (absenteeism without a certificate of incapacity as required by section 30 of the Employment Act) was valid.
Section 30 requires an employee to notify the employer and produce a certificate of incapacity to work. The respondent never complied as at 7th November 2019 when terminal benefits were paid, staying away until 2021. The court therefore agreed with the trial court that the reason was valid.
Fairness of procedure under section 41 of the Employment Act
The termination was unfair and unlawful because the mandatory procedure under section 41 was not followed; no show cause notice or hearing was given.
Section 41 requires an employer, before terminating for physical incapacity, to explain the reasons and hear the employee's representations. RW1 admitted no show cause notice was served and no disciplinary hearing conducted. Following Joseph Nzioka v Smart Coating Limited, reasonable attempts must first be made to contact an employee before dismissal for absenteeism.
Whether the trial court's awards should stand
The award of 3 months' salary compensation, leave and public holidays was upheld; only the award of one month's salary in lieu of notice (Kshs.25,949) was set aside as it had already been paid.
Applying Butt v Khan, the compensation award was evidence-based and reasonable given the respondent's four years of service and lack of misconduct contribution. However, payment of notice pay through Ann Njeri Kabuthi was proven, so that head was set aside. Leave and public holiday claims were not specifically controverted and were left undisturbed.
Legal principles established
#- Before dismissing an employee for absenteeism or absconding, an employer must attempt to contact the employee and issue a show cause letter, and must accord a hearing under section 41 of the Employment Act.
- Payment of one month's salary in lieu of notice is sufficient proof that the employer took responsibility for terminating the contract of employment.
- An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate.
Court orders
#- 1.The lower court judgment is varied by setting aside the award of Kshs.25,949 being one-month salary in lieu of notice
- 2.The rest of the awards in the lower court's judgment are not disturbed
- 3.The award shall be subject to statutory deductions
- 4.No costs awarded since the appeal only succeeded partially
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (ELRC), Nyeri
- MCELRC No. E062 of 2022
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court's employment decision under the Employment and Labour Relations Court Act
Relief refused
#Full allowance of the appeal and dismissal of the suit with costs
The court found the dismissal unfair for want of fair procedure and upheld most of the trial court's awards
Costs
Since the appeal only succeeded partially, I will not condemn any party to pay costs (each party to bear their 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.
a. The lower court judgment is varied by setting aside the award of Kshs.25,949 being one-month salary in lieu of notice.
b. The rest of the awards in the lower court's judgment are not disturbed.
d. Since the appeal only succeeded partially, I will not condemn any party to pay costs.
Dismissal on account of absconding must be preceded by evidence showing that reasonable attempt was made to contact the employee concerned and that show cause letter was issued to such employee calling upon such employee to show cause why his services should not be terminated on account of absconding duties.
I find that the respondent never resigned but his services were terminated by the appellant on account of physical incapacity due to an accident.
Issues in the judgment
#The judgment states the respondent's last working date as 9th September 2019 (date of accident) while also stating termination occurred on 7th/8th November 2019
Inconsistent dates of termination: 7th November 2019 (date of payment) versus 8th November 2019 in the conclusion
Parties' full names are not stated in the judgment; the appellant/respondent are referred to only by role
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aegis Construction Limited v Kihenja (Employment and Labour Relations Appeal E035 of 2024) [2025] KEELRC 2375 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 11th November 2024 (from MCELRC No. E062 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2375/eng@2025-08-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.