Opele v Biometric Technology Ltd (Cause E350 of 2020) [2025] KEELRC 2853 (KLR)
The bottom line
#A Kenyan court ruled that even when an employee's misconduct justifies dismissal, skipping the mandatory hearing process makes the dismissal unlawful and payable.
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 has demonstrated that there was a valid and fair reason for terminating the Claimant's employment
- 2.Whether the Claimant was accorded procedural fairness prior to the termination of her employment
- 3.Whether the Respondent has proved its Counterclaim
- 4.Whether the Claimant is entitled to the reliefs sought
Key legal issues
#Valid and fair reason for termination
The Claimant's absence from work without leave or lawful cause was a valid and fair reason for termination under Section 44(4)(a)
The Respondent produced attendance registers showing the Claimant attended work only five days in November and four in December 2019, and none in January 2020. The Claimant claimed sick leave but produced no medical certificate or supporting emails as required by Sections 30(1) and 30(2) of the Employment Act. Her absence was therefore without lawful cause or authorization.
Procedural fairness
Termination was procedurally unfair because the Respondent failed to comply with Section 41 of the Employment Act
There was no notice to the Claimant that termination was contemplated, no opportunity to be heard in the presence of a fellow employee, and the email of 14th January 2020 did not expressly communicate termination. RW1 confirmed during cross-examination that no notice of termination was issued. Section 41 compliance is mandatory and constitutes the bare minimum standard of fairness.
Counterclaim - fuel allowance
The Respondent proved excess fuel drawals of Kshs 40,000/- beyond the contractual Kshs 5,000 monthly allowance
Petty cash vouchers showed the Claimant topped up fuel worth Kshs 25,000 on two occasions. Her contract provided for a fuel allowance of Kshs 5,000 per month or office transport, and there was no evidence of authorization to exceed this amount. She did not discount the claim.
Compensation
Two months' gross salary awarded as compensation for procedural unfairness despite valid reason
The Court took into account the relatively short duration of the employment relationship and the Claimant's own contribution to the termination, exercising the discretion under Section 49 to moderate the award.
Legal principles established
#- An employer bears the burden of proving valid and fair reasons for termination, failing which the termination is unfair
- Compliance with Section 41 procedural safeguards is mandatory regardless of an employee's misconduct
- The four elements of a fair hearing under Section 41 as set out in Postal Corporation of Kenya v Andrew K. Tanui
- Loss of future earnings to retirement age is not recoverable as damages for wrongful termination
Court orders
#- 1.Declaration that the termination of the Claimant's employment was procedurally flawed and therefore unlawful
- 2.Award of Kshs 500,000.00 to the Claimant as compensatory damages, equivalent to two (2) months of her gross salary
- 3.Respondent's Counterclaim succeeds to the extent of Kshs 40,000.00
- 4.The Kshs 40,000.00 set off against the Claimant's award, resulting in a net award of Kshs 460,000.00 payable to the Claimant
- 5.Interest on the net award at court rates from the date of judgment until payment in full
- 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 first-instance jurisdiction under the Employment Act (referenced, e.g. Sections 41, 43, 44, 45, 49 and 51)
Relief refused
#Declaration of malicious/unlawful summary dismissal and salary for three months of maternity leave
Employment relationship had already been terminated before the maternity leave period; contractual benefits had ceased
Loss of earnings for 27 years until retirement age of 60
Anticipatory in nature; permanent and pensionable employment does not guarantee employment until retirement age
Total claim of Kshs 85,135,227.00
Only two months' gross salary awarded as compensation; only Kshs 40,000.00 of the Counterclaim reliefs granted
Costs
Each party shall bear its own costs, given that both the Claim and the Counterclaim have partly succeeded.
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 Claimant's claim succeeds, and the Court hereby declares that the termination of her employment was procedurally fiawed and therefore unlawful.
The Claimant is awarded Kshs 500,000.00 as compensatory damages, equivalent to two (2) months of her gross salary.
The amount in (c) above shall be set ofi against the Claimant's total award in (b), resulting in a net award of Kshs 460,000.00 payable to the Claimant.
Each party shall bear its own costs, given that both the Claim and the Counterclaim have partly succeeded.
Compliance with this provision was mandatory and not optional; it constituted the bare minimum standard of fairness.
the Court finds that the Claimant's absence from duty without leave or lawful authority constituted a valid and fair reason for the Respondent to terminate her employment.
Issues in the judgment
#Respondent's name is never stated in the judgment; parties are referred to only as 'Claimant' and 'Respondent', though the Counterclaim misdescribes the Claimant as 'Respondent Mrs. Florence Khamala Opele'
Case title and case number are not discernible from the extract provided
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Opele v Biometric Technology Ltd (Cause E350 of 2020) [2025] KEELRC 2853 (KLR)", Case Analysis (2025). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2853/eng@2025-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.