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ELRCDismissedNot stated in the judgment

Ndalo v Kenya Airports Authority (Employment and Labour Relations Cause E529 of 2021) [2025] KEELRC 3716 (KLR)

Employment and Labour Relations Court
19 December 2025
4,992 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~20 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld a security warden's dismissal over miraa at an airport, ruling the employer followed a fair process.

What this practically means

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Executive summary

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The Claimant, a Security Warden (Grade IV) employed by the Respondent from 17th January 2007, was terminated on 29th October 2018 on allegations that he facilitated the prohibited conveyance of miraa through passenger Terminal 1B aboard Emirates flight EK 722 to Dubai on 13th April 2018, contrary to the Managing Director's circular of 8th March 2018. He claimed three months' notice pay, pro rata leave pay, salary for the period of his appeal, and twelve months' salary as general damages, totalling Kshs. 3,320,366.00, contending the termination was substantively and procedurally unfair. The Respondent denied the claim, asserting valid reasons, a fair disciplinary process, and payment of terminal dues. At trial, the Claimant, in cross-examination, confirmed being a certified screener and admitted the disciplinary and appeal processes, notice pay, certificate of service and pension. The court framed two issues: whether the dismissal was unfair, and entitlement to reliefs. Applying sections 41, 43 and 45 of the Employment Act, and adopting the reasonableness standard from British Leyland v Swift and the balance-of-probability standard from Kenya Revenue Authority v Reuwel Waithaka Gitahi, the court held that air travel security is a key operational requirement; the Claimant was aware of the miraa prohibition, had a prior warning for a similar offence barely a month earlier, and a reasonable employer could dismiss on those facts. Procedural fairness was satisfied through show cause, hearing with union representation, and an appeal. All reliefs were refused and the claim was dismissed with costs to the Respondent on 19th December 2025.

Questions the Court framed

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

  1. 1.Whether the Claimant was dismissed unfairly by the Respondent
  2. 2.Whether the Claimant is entitled to the reliefs sought

Key legal issues

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01

Whether the Claimant was dismissed unfairly by the Respondent

Holding

The dismissal was fair both substantively and procedurally; the Respondent had valid and justifiable reasons and followed sections 41, 43 and 45 of the Employment Act

Reasoning

The Claimant, a certified screener working as a bag searcher, admitted awareness of the Managing Director's circular prohibiting miraa in aircraft cabins and had a prior warning for a similar offence barely a month earlier. Air travel is security-sensitive and screening of passengers and luggage is a key operational requirement. The Claimant was issued a show cause letter, responded, attended a disciplinary hearing with a union official, and was afforded an appeal which was heard and dismissed. The court declined to substitute its view for that of the employer.

p. 9
02

Whether the Claimant is entitled to the reliefs sought

Holding

None of the reliefs were awarded; the claims were unsustainable given the finding of a valid and fair termination

Reasoning

Having found valid reasons and a fair procedure, the court held the claims unsustainable. Notice pay had been paid per the termination letter, no evidence proved accrued leave, salary for the appeal period would constitute unjust enrichment, and no compensation was due since the termination was lawful and fair.

p. 10
03

Discrepancy in dates between the verifying affidavit and the claim

Holding

Not fatal to the claim; the affidavit verifies the claim and need not be contemporaneously filed, and should have been raised as a preliminary point if considered fatal

Reasoning

The Respondent's counsel raised the difference in dates between the verifying affidavit and the claim. The court held that the purpose of a verifying affidavit is to verify the correctness of matters pleaded and it may be filed at any time before trial; counsel should have raised it as a preliminary point of law before trial if she considered it fatal.

p. 7

Legal principles established

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  • The reason for termination is what the employer genuinely believed to exist at the time of termination
  • A termination is unfair if the employer fails to prove a valid and fair reason related to the employee's conduct, compatibility or the employer's operational requirements
  • The court will not substitute its own view of a valid reason for that of the employer where reasonable grounds existed
  • The standard of proof in employment termination is on a balance of probability, not beyond reasonable doubt
  • The reasonableness test for dismissal admits a band of reasonableness within which an employer's decision must be upheld

Court orders

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  1. 1.The claim is dismissed with costs to the Respondent

The bench

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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, 2007 (first-instance employment claim)

Relief refused

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Payment of 3 months' salary in lieu of notice (Kshs. 275,166.00)

Notice pay was computed and paid under the termination letter; the appointment letter provided for one month's notice or pay in lieu

Leave pay for 36/34 days on pro rata basis (Kshs. 110,066.40)

No evidence led to prove entitlement to leave pay; the Respondent pleaded the Claimant had no accrued leave days

Salary from 24th October 2018 until 10th July 2020 (Kshs. 1,834,440.00)

Salary is only payable for services rendered; allowing the claim would amount to unjust enrichment

General damages of 12 months' salary (Kshs. 1,100,664.00)

Termination was for valid reasons and through a lawful and fair process, so no compensation was due

Reinstatement with full retention of rank, benefits and seniority (sought in submissions)

The court found the Respondent had valid and justifiable reasons for termination and followed a fair procedure

Interest on the claimed amount at court rates

The entire claim was found unsustainable and dismissed

Costs

The claim is dismissed with costs to the Respondent

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.

The claim is therefore found without merit and is hereby dismissed with costs.
p. 10Final orders - dismissal of the claim
In conclusion the Court finds and holds that the respondent had valid and justifiable reasons for terminating the claimant's service and that the termination was carried through a fair procedure within the meaning of section 45 of the Employment Act.
p. 10Conclusion on substantive and procedural fairness
This Court in appropriate cases is clothed with power to indulge in a merit review of the reasons for termination of service of an employee by dint of provisions of section 43 of the Employment Act. However the Court will not replace its subjective views of what constitutes a valid reason for termination of an employment contract with that of the employer.
p. 9Scope of merit review of termination reasons
The Court takes judicial notice that air travel is a security intensive transport system hence it is an essential requirement that all security protocols are observed to ensure the safety of the aircraft and the air passengers.
p. 8Air travel security as an operational requirement
It is improper for a court to expect that an employer would have to undertake a near forensic examination of the facts and seek proof beyond reasonable doubt as in a criminal trial before it can take appropriate action subject to the requirements of procedural fairness that are statutorily required.
p. 9Standard of proof in employment termination (as adopted from Kenya Revenue Authority v Reuwel Waithaka Gitahi)

Issues in the judgment

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minor

Garbled/corrupted text in the framing of the issues for determination

minor

Inconsistent dates in the narrative of the disciplinary hearing compared with the pleadings (hearing stated as 16th August 2018 in pleadings and paragraph 26, but 6th August 2018 in submissions section)

minor

Inconsistent dates for invitation and hearing of the disciplinary hearing within paragraph 36 (letters dated 8th July, 2018 and hearing on 16th July, 2018, contrary to 8th August 2018 and 16th August 2018 elsewhere)

minor

Inconsistent claim for leave days (36 days in the particulars of claim, 34 days in the prayer)

minor

Signature block describes the presiding officer as 'PRESIDING JUDGE-APPEALS DIVISION' although the matter was heard as a first-instance claim

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, "Ndalo v Kenya Airports Authority (Employment and Labour Relations Cause E529 of 2021) [2025] KEELRC 3716 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3716/eng@2025-12-19

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