Nzomo v Lukenya Gateaway Limited & 4 others (Appeal E011 of 2023) [2025] KEELRC 3737 (KLR)
The bottom line
#A Kenyan court ruled the dismissal was procedurally unfair because the employer never gave the employee a hearing after suspending her, awarding one month's notice pay.
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 Appeal is competent in the absence of a certified copy of the Decree
- 2.Whether the trial court erred in fact and law in its finding on the fairness of the termination
- 3.Whether the trial court erred in fact and law in respect of the relief sought
Key legal issues
#Competence of the appeal in the absence of a certified copy of the decree
The appeal was competent; the absence of a certified decree was a technicality the court could overlook
Rule 15 of the ELRC (Procedural) Rules requires a certified copy of the decree, but section 20 of the ELRC Act prohibits deciding cases on technicality. The court found the judgment was sufficient to disclose the issues for the appeal.
Procedural fairness of the termination
The termination lacked procedural fairness because no hearing was held after the suspension, though the reason for termination was valid
Section 41 of the Employment Act requires the employer to explain the reason for termination and hear the employee's representations before dismissal. The respondent suspended the appellant for investigations but never conducted a hearing after the suspension. The misconduct ground was established at cross-examination where the appellant admitted possessing the respondent's goods without receipts, so the reason was valid under section 43, but the process failed under section 41.
Relief: defamation, gratuity and service pay
Defamation claim failed for want of proof; gratuity was already paid; service pay not due as the appellant was under NSSF
The court upheld the trial court's finding that defamation was unproven for lack of a third-party witness and that the appellant was caught with stolen goods. Gratuity had been paid after termination with no evidence of further entitlement, and service pay was excluded by section 35(6) of the Employment Act because the appellant was an NSSF member.
Legal principles established
#- Suspension is a preliminary step paving the way for investigations and does not necessitate a full disciplinary hearing at that stage
- Fairness in termination is not complete without procedural fairness under section 41 of the Employment Act
Court orders
#- 1.Judgment entered for the claimant against the respondent for compensation equivalent of 1 month notice pay Kshs. 18,975 with interest at court rate from date of judgment
- 2.Certificate of service to issue under section 51 of the Employment Act
- 3.Costs of the suit
- 4.The appellant awarded costs of the appeal
- 5.30 day stay granted
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court, Mavoko (Hon. D. Kuto)
- Mavoko CMEL Suit No. E585 of 2019
- Jurisdiction invoked
- Employment and Labour Relations Court Act; first appellate jurisdiction over the subordinate court's judgment
Relief refused
#General damages for defamatory statements
No proof of defamation for lack of a third-party witness; appellant was caught with stolen goods
Gratuity for 15 years of service
Appellant was paid gratuity after termination and provided no evidence of any further due gratuity
Service pay for 15 years of service
Not due as the appellant was a member of NSSF
Costs
Costs of the suit to the claimant; appellant awarded costs of the appeal
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 Judgment and Decree of the Hon. D.Kuto (SPM) delivered on 11th October 2023 in Mavoko CMEL Suit No. E585 of 2019 is set aside and substituted as follows
Judgment is entered for the claimant against the respondent for award of compensation equivalent of 1 month notice pay Kshs. 18,975 with interest at court rate from date of judgment
There was no procedural hearing after the preliminary step of suspension, hence a lack of procedural unfairness in the termination, for which a 1-month notice is awarded
Suspension was a preliminary step that may or may not end up with removal. It did not necessitate a full disciplinary hearing entailing presentation of evidence
Issues in the judgment
#The judgment inconsistently refers to the trial magistrate as both (M) and (SPM) and elsewhere describes 'a lack of procedural unfairness' where the context and holding indicate procedural unfairness was found
The parties are not named in the judgment text; the appellant is referred to as 'he' in paragraph 17 but 'she' elsewhere
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nzomo v Lukenya Gateaway Limited & 4 others (Appeal E011 of 2023) [2025] KEELRC 3737 (KLR)", Case Analysis (2025). ELRC Appeal from Mavoko CMEL Suit No. E585 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3737/eng@2025-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.