WEEK 7

Thursday 31st October

Forced Labour

- Section 2 Employment Act - “forced or compulsory labour” means any work or service which
is extracted from any person under the threat of any penalty, including the threat of a loss of
rights or privileges, which is not offered voluntarily by the person doing the work or
performing the service;
o Work exacted
o Threat of penalty (including loss of rights or privileges)
o Not voluntarily given – this is the most important leg
o No pay/inadequate pay
- Section 4 Employment Act – ‘No person shall use or assist any other person in recruiting,
trafficking or using forced labour’.
o This is targeting the agencies
o They are exacting work, but they are not paid and have not volunteered for it
- There are protected categories that are excluded from forced labour:
o any work or service exacted by virtue of compulsory military service laws for work
of a purely military character: Provided that forced or compulsory recruitment of
children for use in armed conflict shall be deemed to be forced or compulsory labour;
o any work or service which forms part of the normal civic obligations of the citizens of
Kenya;
o any work or service exacted from any person as a consequence of a conviction in a
court of law, provided that the work or service is carried out under the supervision
and control of a public authority and that the person is not hired out to or placed at the
disposal of private persons, companies or associations;
o any work or service exacted in cases of an emergency, such as in the event of war or
disaster or threat of calamity in any circumstance that would endanger the existence
or the well-being of the whole or part of the population; and
o minor communal services performed by the members of the community in the direct
interest of the said community, provided the members of the community or their
representatives are consulted.

- Didovsky Igor & 11 Others v International Bulk Carriers Spa & 2 Others, Cause 369 of
2013
- They are seafarers
- Their ship docks in Mombasa Kenya but they are abandoned without pay and they cannot
leave the ship because they were carrying cargo  
- The Parties seem to have been in agreement that the Ship was somewhat stricken and not
seaworthy at the time. It was not made clear to the Court how the Ship sailed to Mombasa,
where and when its voyage started, and its purpose at the Port of Mombasa was left unsaid.
Who manned the Ship before the Claimants took over at Malindi and Mombasa? There were
some gaps in the voyage, which deprived the Court of certain perspectives. The Claimants
were not supplied with fresh water and food was rationed from around 1 st July 2012. Other
basic supplies were exhausted and not restocked.
- The Ship ran out of fuel and the generator could not work. The Claimants were thrown into
darkness.
- The Ship was one and a half times the size of a football pitch. It was hot and humid, a giant
cauldron, day and night, with no coolers. It was not fit for human habitation.
- The Claimants were exposed to Mosquitoes. They could not abandon the Ship, and were
required to ensure the Ship remained properly moored and safe from the elements, so as not to
 endanger other maritime users. The Claimants were left looking for assistance from Seafarers’
Welfare Groups.
- It is not correct that the Employers did not owe the Seafarers the obligations asserted in the
Claim. The Claimants entered the Ship within the Kenyan Waters. They concluded and
performed their contracts in Kenya. 
- The conditions in which the Claimants served; no doubt amounted to slave labour. Slave
labour means, labour that is coerced and is inadequately, or not at all rewarded, or People who
perform such labour. 
o This case includes a pay aspect
- They were kept waiting for their salaries, and thereby forced to continue serving, as they
waited to be paid and discharged.
- Article 30 of the Constitution of Kenya, prohibits slavery, servitude and forced labour.
- ILO Convention 105 on Abolition of Forced Labour, and ILO Convention 29
Concerning Forced or Compulsory Labour, are Core Conventions, prohibiting this form of
involuntary labour.
- Claimants were awarded damages

- Kennedy Obala Oaga v Kenya Ports Authority [2018] eKLR, Cause 339 of 2016

- Kennedy claimed that he was endured forced labour as he continued to work after resigning
- The courts said that it was not forced labour as clearance of the pending work does not
amount to forced labour.
- “Forced Labour occurs where a person is coerced to work through use of violence,
intimidation, or other subtle means, such as accumulated debt, retention of identity papers or
denunciation to immigration authorities.” (Accumulated debt can be advanced salaries that
were paid.)
o Threat is an important leg

Discrimination

- Article 27 of the Constitution - Every person is equal before the law and has the right to
equal protection and equal benefit of the law.
o
o The State shall not discriminate directly or indirectly against any person on any
ground, including race, sex, pregnancy, marital status, health status, ethnic or
social origin, colour, age, disability, religion, conscience, belief, culture, dress,
language or birth Protected classes.
- Section 5 of the Employment Act –
- The State shall not discriminate directly or indirectly against any person on any ground,
including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour,
age, disability, religion, conscience, belief, culture, dress, language or birth.
- Section 5(3) –
- 3) No employer shall discriminate directly or indirectly, against an employee or prospective
employee or harass an employee or prospective employee—
(a) on grounds of race, colour, sex, language, religion, political or other opinion,
nationality, ethnic or social origin, disability, pregnancy, mental status or HIV status;
(b) in respect of recruitment, training, promotion, terms and conditions of employment,
termination of employment or other matters arising out of the employment

1. Direct Discrimination
- A person discriminates another if because of a protected characteristic, he treats that person
less favourably than he treats or would treat others – this is the obvious form of
discrimination, but you have other subtle ones such as:
o Associative discrimination – this arises when a person is discriminated against
because of their association with a person who has a protected characteristic e.g. a
friend of an LGBTQ+ person. This was seen in the case of Coleman v Attridge Law
(2010) LCR 242
 Here, the claimant claimed that she was subjected to unfair treatment because
she had a disabled son who required care
 There was no provision for this type of discrimination but the European
Court that this would be associated discrimination although it does not extend
to an employer’s duty to make reasonable adjustments.
o Perceptive discrimination – this occurs if a person treats another less favourably
because it is believed that the other person has a protected characteristic. E.g.
Nigerians being perceived as drug dealers
o Deterred discrimination – if an employer gives an indication that person who have
undertaken a protected characteristic and would not be considered for a certain
position/a benefit would be deterred determination because they do not bother to
compete for that opportunity – therefore an expressed reservation of a person within a
protected class because the employer has stated that they have a problem with a
specific protected class
o For direct discrimination – we need to distinguish less favourable from unfavourable
treatment - less favourable treatment requires a comparator but unfavourable
treatment doesn’t.
o A person can discriminate directly even if they are unaware they are doing so – this
regards stereotypes. This is seen in Skyrail Oceanic Ltd v Coleman (1981)
 The C worked as a booking clerk in a travelling agency but her fiancée
worked in a rival firm
 They employers of the women discussed the matter of confidentiality and it
was agreed that the wife was to be dismissed because the husband was going
to be the breadwinner of the family
 COA upheld her claim for unfair dismissal because their assumption that the
man was going to be the breadwinner was based on sex and thus it was sex
discrimination
o The test for determining if there is direct discrimination is OBJECTIVE and
NOT subjective – we look at what was done and not the reasons or the motives
behind what was done. The question to be asked is was the person was so treated
because of the protected characteristic so even a benign action can amount to
discrimination
 James v Eastly Borough Council (1990) 2 AC 751 – Mr and Mrs James
were both aged 61
 Mr James and his wife, both aged 61, went to a swimming pool operated by
the Council. Ms James was admitted free because she was of pensionable age
while Mr James had to pay 75p. He claimed that the Council had unlawfully
discriminated against him on the ground of his sex contrary to s.1(1)(a) and
s.29 of the Sex Discrimination Act 1975. His claim was dismissed by the
County Court and the Court of Appeal. With the support of the Equal
Opportunities Commission, Mr James appealed to the House of Lords.
 HOL agreed that there was discrimination on grounds of sex

2. Indirect Discrimination
- The rule on the face of it looks to be fair because it applies to everyone, but one group of
people is being punished more e.g. nobody should wear earrings
 o A person discriminates against another if he applies a provision, criteria or practice
which is discriminatory in relation to that others protected characteristic
o The provision, criteria or practice is applied to persons who do not share that
characteristic and puts the people who do share that characteristic at a particular
disadvantage compared to persons who do not share
o Or, if the provision, criteria or practice puts an individual with that characteristic at a
disadvantage
- Overall in relation to the 3 above, it must be shown that it is NOT a proportionate means of
achieving a legitimate aim. This is looked at in Section 5(4) where it is It is not
discrimination to—
o (a) take affirmative action measurers consistent with the promotion of equality or the
elimination of discrimination in the workplace;
o (b) distinguish, exclude or prefer any person on the basis of an inherent requirement
of a job;
o (c) employ a citizen in accordance with the national employment policy; or
o (d) restrict access to limited categories of employment where it is necessary in the
interest of State security.
- Section 5(5) - An employer shall pay his employees equal remuneration for work of equal
value.
- Section 5(6) - An employer who contravenes the provision of the section commits an offence.
- Section 5(7) - In any proceedings where a contravention of this section is alleged, the
employer shall bear the burden of proving that the discrimination did not take place as
alleged, and that the discriminatory act or omission is not based on any of the grounds
specified in this section.
- VMK v CUEA (Catholic University of Eastern Africa) – Cause 1161 of 2010
o Professor Juvanalis Maitu
o In this case, the lady sued based on gender, pregnancy and HIV status
o She was a telephone operator earning 7000 shillings
o Overtime, her salary was increased
o She ended up applying for a job but was told that she was required to go a medical
examination to establish her fitness
o She was tested and did not receive any further communication
o She was later told that she was HIV positive and was not given any counselling prior
– this was the first time she knew she was positive
o In light of all this, she was already successful in the job but after this revelation she
was not offered the promotion
o After this, they were not paying NHIF or NSSF
o She later applied for a permanent position and she received a letter that they will not
renew her contract or offer her a permanent job
o Somebody then told her that everybody in the institution knows she is HIV positive
and a Christian institution will not hire a HIV woman
o She later got pregnant and took maternity leave but was paid – this was still in her
contract
o When she came back and before expiry, she was told that she will not be paid and
will not receive salary after
o She was later told to clear the office and they wished her best in her future
endeavours. At the term of the letter, she was pregnant with another baby
 Note there was a man who did the same job had a permanent job and was
earning more than her
o She came to court and the court considered the issue of remuneration and
international labour standards
  the ILO publication “An outline of recent developments concerning equality
issues in employment for Labour Court Judges and assessors” by Jane
Hodgers  Aeberhard P. 36 is stated;
 “The very meaning of the term “work of equal value” still gives rise to
uncertainty and confusion in many jurisdictions.  Simply put, the principle of
equal remuneration for work of equal value is intended to address the
undervaluing, and subsequent lower pay, of jobs undertaken primarily by
women, when those jobs are found to be as demanding as the different jobs
undertaken by men.
 The principal thus contemplates the comparison of different jobs on the basis
of their content.  Accordingly, it is much broader than the notion of “equal
pay for equal work”’
 An assessment is not done of the job title but of the components of the job at
play – the value of the work
 Article 1 of ILO Convention No. 111 – Convention Concerning
Discrimination in Respect of Employment and Occupation, 1958 defines
discrimination thus;
 “For the purpose of this Convention the term discrimination includes;
 Any distinction, exclusion or preference made on the basis of race, colour,
sex, religion, political opinion, national extraction or social origin, which
has the effect of nullifying or impairing equality of opportunity or
treatment in employment or occupation;”
 Remember – these are Kenyan law by virtue of Article 2(6)
o The court found that there was discrimination and she was awarded 6,971,346/
 The intentionally targeted her because she was a women and HIV positive – a
fact that was disclosed to her employer

- GMV v Bank of Africa Kenya Limited, Cause 1227 of 2011

o She was employed by the Bank and was being paid 106,000
o She then received a letter of transfer and was signed by the Deputy – her salary was
changed (confirm if it increased or decreased) and she moved
o Her contract was later terminated because of poor performance and failure to improve
even though there was evidence on the contrary
o The burden is on the employer to prove poor performance and the employee needs to
prove a prima facie case – para 69
o She claims she was terminated because she was pregnant.
o Courts have stated that the employee needs to:-
 Establish she belongs to a protected class.
 Demonstrate she qualified for the job she lost.
 Show she suffered adverse employment action, directly as a result of her
pregnancy. She must provide prima facie proof, that other explanations by
the employer are pretexual, and the real reason for termination was the
pregnancy.
 Lastly, the employee must as a minimum, establish that there is a nexus
between the adverse employment decision, and her pregnancy
o Once the employee does this, the burden shifts to the employer to show a legitimate
explanation for termination
o It is the courts duty for the court to distinguish pretext and legitimate explanation for
termination.
o  In the US where discrimination jurisprudence is well developed as a result of that
Country’s race relations, the Supreme Court in the case of Reeves v. Sanderson
Plumbing Products Inc. 530 US. 138, 141 (June 12th 2000) explained the
evidentiary threshold as follows:-
 o “In appropriate circumstances, the trier of facts can reasonably infer from the falsity
of the explanation that the employer is dissembling, to cover up discriminatory
purpose. Such inference is consistent with the general principle of evidence law, that
the fact finder is entitled to consider a party’s dishonesty about a material fact, as
affirmative evidence of guilt. Moreover, once an employer’s justification has been
eliminated, discrimination may well be the most alternative explanation, especially
because the employer is in the best position, to put forth the actual reason for its
decision……thus, the Claimant’s prima facie case, combined with sufficient evidence
to find that the employer’s asserted justification is false, may permit the trier of fact
to conclude that the employer unlawfully discriminated against the employee.’’
o She received Kshs. 4,473,000

- David Wanjau Muhoro v Ol Pejeta Ranching Limited – Cause 1813 of 2011

o Ol Pejeta Ranching Limted v David Wanjau Muhoro, Civil Appeal 42 of 2015
o At first instance, David was awarded 22.3 million shillings in damages for unfair
termination and on appeal it was reduced to 9.2 million shillings
o These cases explored the idea of equal pay for work for equal value
o David’s case established the 2 methods that were applied in looking into the question
of job evaluation methods.
 The first one was the Global or Rankings method
 The second – Analytical Method

Sexual Harassment

- Section 6 of the Employment Act – An employee is sexually harassed if the employer of

that employee or a representative of that employer or a co-worker—
(a) directly or indirectly requests that employee for sexual intercourse, sexual contact or any
other form of sexual activity that contains an implied or express—
i. promise of preferential treatment in employment;
ii. threat of detrimental treatment in employment; or
iii. threat about the present or future employment status of the employee;
(b) uses language whether written or spoken of a sexual nature;
(c) uses visual material of a sexual nature; or
(d) shows physical behaviour of a sexual nature which directly or indirectly subjects the
employee to behaviour that is unwelcome or offensive to that employee and that by its nature
has a detrimental effect on that employee’s employment, job performance, or job
satisfaction

- P.O v Board of Trustees A F & 2 Others, Cause 927 of 2010

- Para 29 - The evidence of the Claimant convinces the Court J, at various stages of the
employment relationship, particularly in South Africa, directly or indirectly demanded for sex
from the Claimant. He let her know he had spent a lot of money on her, which was either an
express or implied way of saying he was according her preferential treatment or quid pro
quo. He not only threatened her on her employment status, but terminated her contract, and
went on making demands and threats after termination. He subjected her to physical
behaviour of a sexual nature by booking a single room for the two of them in South Africa.
He not only physically beat her up, but presumably as a prelude to the beating, nudged her.
He says in one of his emails ‘okay sorry for the nudging.’  There was a manifestation of
physical behaviour, of a sexual nature. The Claimant clearly did not welcome this behaviour.
She rebuffed J 3 times, in Malaysia, Whistling Thorns and South Africa. The behaviour was
offensive and unwelcome and had profound effect on the Claimant’s employment and job
satisfaction. She was denied the opportunity of attending a crucial International Conference
and repatriated to Kenya. She was dismissed from employment and continued to be
 threatened even after employment by the 2nd Respondent. The 2nd Respondent acted contrary
Section 6 of the Employment Act 2007.
- Para 30 - International Labour Organization [ILO] in Working Paper 3/ 2011 titled
‘Gender- Based Violence in the World of Work: Overview and Annotated Bibliography’ by
Adrienne Cruz and Sabine Klinger characterizes Gender-based violence as ‘’the most
prevalent human rights violation in the world. Of the varied ways in which sex discrimination
manifest itself across the globe, such violence is exceptionally dehumanizing, pervasive and
oppressive. No other form of sex discrimination violates so many fundamental human rights
as articulated in the 1948 United Nations Universal Declaration of Human Rights.  These
include Article 1 [ All Human beings are born free and equal in dignity and rights] ; Article 3
[ Everyone has the right to life, liberty and Security of the Person] ; and Article 5 [No one
shall be subjected to torture or to cruel, inhuman and degrading treatment or
punishment].’’ The Authors state that gender-based violence reflects and reinforces
inequalities between men and women. At least one in three women in the world, according to
this Paper, is estimated to have been coerced into sex, physically beaten and/or otherwise
abused in her lifetime. This form of violence not only causes pain and suffering, but also
devastates families, undermines workplace productivity, diminishes national competitiveness
and stalls development.
- Para 31 – CEDAW - The 1993 UN Declaration on the Elimination of Violence against
Women, defines violence against women as ‘any act of gender-based violence that results
in, or is likely to result in, physical, sexual or psychological harm or suffering to women,
including threats of such acts, coercion or arbitrary deprivation of liberty whether
occurring in public or private life.’’
- Para 32 - the 1988 General Survey of the Committee of Experts of the ILO, conducted on the
Application of ILO Convention 111 [Convention Concerning Discrimination in Respect of
Employment and Occupation, 1958]. The Committee listed examples of sexual harassment
that may supplement Section 6 of the Employment Act 2007 to include: insults, remarks,
insinuations and inappropriate comments on a person’s dress, physique, age or family
situation, and a condescending or paternalistic attitude undermining dignity, unwelcome
invitations or requests that are implicit or explicit whether or not accompanied by threats,
lascivious looks or other gestures associated with sexuality, unnecessary physical contact
such as touching, caresses, pinching or assault.’’  Convention 111 itself, defines
discrimination to include: [a] any distinction, exclusion, preference made on the basis of
race, colour, sex, religion, political opinion, national extraction or social origin, which has
the effect of nullifying or impairing equality of opportunity or treatment in employment or
occupation; and [b] such other distinction, exclusion or preference which has the effect of
nullifying or impairing the equality of opportunity or treatment in employment or
occupation as may be determined by the Member concerned after consultation with the
representative employers’ and workers’ organization, where such exist, and with other
appropriate bodies.’’
- Para 37 - One of the most prominent decisions on sexual harassment that has had great
influence on labour legislation is the India Supreme Court case of Vishaka & Ors v. the
State of Rajasthan & Ors, [JJ, 1997] [7] [SC 384].  Their Lordships found that it is the duty
of the Employer or other Responsible Persons in the Workplace, to prevent or deter the
commission of acts of sexual harassment and to provide the procedure for resolution,
settlement or prosecution of acts of sexual harassment by taking all steps required. For this
purpose sexual harassment includes such unwelcome determined behaviour, whether directly
or indirectly, such as: physical contact and advances; sexual favours; sexually coloured
remarks; and showing of pornography and other verbal and non-verbal conduct of a
sexual nature that is unwelcome or humiliating to the woman. The decision can be seen to
have influenced our labour legislations enacted in 2007, in particular Section 6 of the
Employment Act 2007.  – Judge James Rika

- N M L v Peter Petrausch, Cause 441 of 2013, Judge James Rika

- NML was a domestic worker in the D’s house, she claims
- On sexual harassment, the Claimant gave the following evidence: Petrausch patted her
buttocks as she cleaned and told her Africans were stupid; he called her a Stupid Monkey; he
said Africans overeat, and she had become fat; he touched her breasts, asking her if she had
become pregnant; he commanded her to bathe before she went into his house; he took video
pictures of the Claimant as she bathed; he demanded to have sex with the Claimant; he
demanded she watches pornographic movies with him; he covered his penis with a coffee cup
after he had been served with coffee by the Claimant and asked the Claimant to retrieve the
cup from his covered penis; and finally Petrausch asked the Claimant to watch him as he
made love to his wife, so that the Claimant would know how to do it, when madam Petrausch
was gone. The Claimant added another incidence of sexual harassment in her Closing
Submissions, alleging that she was supposed to kiss Petrausch after work; if this did not
happen, Petrausch would deduct Kshs. 300 from her salary. She was not clear if this rate of
deduction was daily, weekly or monthly.  The Court has in its past decisions ruled that
Closing Submissions are not an avenue for Parties to present additional evidence to the
Court. Closing submissions serve as a platform for final persuasion, based on facts already
recorded by the Court. The Submission by L that she was required to kiss Petrausch every
time after work, and penalized through deduction of Kshs. 300 for failure to kiss, cannot
therefore be accepted by this Court as part of her evidence of sexual harassment. The
Respondent had no opportunity to challenge this complaint.
- This case quoted the same provision as in P O and also quoted the Bank of Africa case
- She was awarded 1,270,000.

Thursday 14th November 2019

Disciplinary Measures and Termination of Employment

- A disciplinary procedure is important as a failure to follow leads to a claim for un-procedural

or unfair termination
- Therefore, it is important to set out what the disciplinary procedures are in a policy document
and make those policies easily available. (There are certain policy documents that an
employer has to display and make available)
- The disciplinary procedures have to follow Article 47 of the Constitution (on fair and
administrative action).
- Fair administrative action
(1) Every person has the right to administrative action that is expeditious, efficient, lawful,
reasonable and procedurally fair.
(2) If a right or fundamental freedom of a person has been or is likely to be adversely
affected by administrative action, the person has the right to be given written reasons
for the action.
(3) Parliament shall enact legislation to give effect to the rights in clause (1) and that
legislation shall—
(a) provide for the review of administrative action by a court or, if appropriate, an
independent and impartial tribunal; and
(b) promote efficient administration.
- Article 41 states every person has the right to fair labour practices. (This is an important
provision for labour law)
- The tests around the question of employment revolve around the substantive and the
procedural – when something wrong happens, it has to be rightly handled. There is a
preliminary procedure set out to handle situations when things go wrong, and this procedure
must be provided to the employees and employer, so everyone knows.
- When you find out that there is an issue, as an employer the first thing to do is to write to the
employee formally- give them an opportunity to show cause why disciplinary action
shouldn’t be taken. You must have notice that you may have a representative, a co-worker, a
shop-flow representative or a union member to represent you.
 - Section 35: Termination Notice
(1) A contract of service not being a contract to perform specific work, without reference to
time or to undertake a journey shall, if made to be performed in Kenya, be deemed to be
—
(a) where the contract is to pay wages daily, a contract terminable by either party at
the close of any day without notice; - this is in relation to termination notice where
a notice is not required if the conditions have been met.
(b) where the contract is to pay wages periodically at intervals of less than one
month, a contract terminable by either party at the end of the period next
following the giving of notice in writing; (e.g. if you are paid every two weeks, you
have to be given two weeks’ notice) or
(c) where the contract is to pay wages or salary periodically at intervals of or
exceeding one month, a contract terminable by either party at the end of the
period of twenty-eight days next following the giving of notice in writing (if you
are paid monthly, the requirement by law is that you have 28 days’ notice)
The provisions of the Employment Act are always the bare minimum
(2) Subsection (1) shall not apply in the case of a contract of service whose terms provide
for the giving of a period of notice of termination in writing greater than the period
required by the provision of this subsection which would otherwise be applicable
thereto.
(3) If an employee who receives notice of termination is not able to understand the notice,
the employer shall ensure that the notice is explained orally to the employee in a
language the employee understands.
(4) Nothing in this section affects the right—
(a) of an employee whose services have been terminated to dispute the lawfulness or
fairness of the termination in accordance with the provisions of section 46; or –
you can dispute the notice if you think it is unlawful or unfair
(b) of an employer or an employee to terminate a contract of employment without
notice for any cause recognised by law. This goes into the question of dismissal
Dismissal and termination are two different concepts in the Act.
(5) An employee whose contract of service has been terminated under subsection (1)(c)
(when the contract is longer than a month) shall be entitled to service pay for every year
worked, the terms of which shall be fixed.
(6) This section shall not apply where an employee is a member of—
(a) a registered pension or provident fund scheme under the Retirement Benefits
Act;
(b) a gratuity or service pay scheme established under a collective agreement;
(c) any other scheme established and operated by an employer whose terms are
more favourable than those of the service pay scheme established under this
section; and
(d) the National Social Security Fund.

- Termination and dismissal are different and must be distinguished. You are not entitled to
service pay because they may have better terms, such as under a collective agreement.

- Section 36: Payment in Lieu of Notice

- “Either of the parties to a contract of service to which section 35(5) applies, may
terminate the contract without notice upon payment to the other party of the
remuneration which would have been earned by that other party, or paid by him as the
case may be in respect of the period of notice required to be given under the
corresponding provisions of that section.”
- If Section 35(5) works in your favour (one month’s notice required) then either may terminate
without notice but must pay one month’s salary in lieu of notice. This works two ways where
 the employee wants to quit, and it is not constructive dismissal – you the employee pay the
one months salary instead of giving the notice.
- This does not waive the right to challenge the fairness of the termination. The employer can
still terminate you, but this doesn’t mean it was a lawful or fair termination because you were
paid. You can still challenge it if it doesn’t fall in line with Section 47 of the Act.

- BDM v Kenya Revenue Authority (COA): the case sets out the issues of company policy
and procedures provided prior to termination of employment. BDM is a person who was
charged with a criminal offence which led to suspension from his employment. The letters
cited breaches of the code of conduct. Theft by servant was alleged to be contrary to their
code of conduct.
- A disciplinary hearing was conducted by KRA and a decision taken to dismiss him, and he
appealed in accordance with the code but the appeal was never heard.
- BDM was later acquitted of all criminal charges. He sought damages for unfair and unlawful
termination. The court held:
 KRA was bound to comply with the provisions of its own code which bound both KRA and
its employees. The employer should also abide by the policy and the code of conduct
 The provisions of the code of conduct obligated KRA to gather evidence and frame charges
against BDM reflecting violations of the provisions of that code
 KRA, having failed to do so by lifting the criminal charges and stating they offended the
provisions, violated the code. KRA was supposed to frame the charged related to the code and
not the criminal charges to dismiss – the person should have been suspended in determination
of the criminal case and when the outcome of the criminal case is determined is when it can
be determined the status of the employment.
- The COA said BDM was not accorded the opportunity to appear before the proper organ. The
dismissal letter was signed by a person who did not have the legal mandate under the KRA
Act and the failure to hear and determine the appeal was in violation of the code.

- This case shows that when there is a disciplinary issue, you have to give notice to give a cause
because everyone has a right to be heard. Therefore, they must have the right to be heard, to
face their accuser, ask questions or cross-examine their accuser and the right to make
statements in their own defence.
- Once they have been heard, the person has a right to have written reasons for a decision to be
made. If the person is unhappy, give the person an opportunity to appeal the decision. After
this, they can appeal to the Employment and Labour Relations court. The procedure must be
clear from the outset for every employee and to the employer.

One-pager: Can courts interfere with disciplinary proceedings in employment scenarios?

Contentious and Non-Contentious Termination Procedures

Non-Contentious Terminations

1. Termination by Frustration
- Frustration is something that renders the contract impossible to perform. A contract is
frustrated when performance of the obligations become impossible by unforeseen or
extraneous circumstances for which neither party is to blame.

2. Death of the Employer or Employee

- This is self-explanatory

3. Contract is Terminated by Mutual Agreement

- Both parties may not be willing or able to continue to perform their obligations
 - Both parties agree to part ways

4. Employee Voluntarily Gives Up the Contract

- For example, by resignation

5. By Operation of Law

- This happens in two scenarios:

 Effluxion of time: the contract expires. But this has the potential of being contentious. If an
organisations practice is to employ people with short-term contracts and they automatically
roll-over the contracts but if one person’s contract isn’t renewed and there is no particular
explanation, then it may be contentious.
 Performance: job is now done.

Contentious Terminations

1. Summary Dismissals:

- This is different from termination. Statute reflects the differences.

- Section 44 of the Employment Act states:
(1) Summary dismissal shall take place when an employer terminates the employment of an
employee without notice or with less notice than that to which the employee is entitled
by any statutory provision or contractual term. (Summary dismissal is a scenario where
there is no notice or less notice than is statutorily provided. The reasons for termination
without notice are set out in statute).
(2) Subject to the provisions of this section, no employer has the right to terminate a
contract of service without notice or with less notice than that to which the employee is
entitled by any statutory provision or contractual term.
(3) Subject to the provisions of this Act, an employer may dismiss an employee summarily
when the employee has by his conduct indicated that he has fundamentally breached his
obligations arising under the contract of service. (Summary dismissal occurs when an
employee breaches the terms of an employment contract- the terms can be express and
implied). An employee can be terminated for an implied term if it is a repudiatory breach e.g.
failure to obey lawful and reasonable instructions is a repudiatory breach)
(4) Any of the following matters may amount to gross misconduct so as to justify the
summary dismissal of an employee for lawful cause, but the enumeration of such
matters or the decision of an employer to dismiss an employee summarily under
subsection (3) shall not preclude an employer or an employee from respectively alleging
or disputing whether the facts giving rise to the same, or whether any other matters not
mentioned in this section, constitute justifiable or lawful grounds for the dismissal if—
(a) without leave or other lawful cause, an employee absents himself from the place
appointed for the performance of his work;
(b) during working hours, by becoming or being intoxicated, an employee renders
himself unwilling or incapable to perform his work properly;
(c) an employee wilfully neglects to perform any work which it was his duty to
perform, or if he carelessly and improperly performs any work which from its
nature it was his duty, under his contract, to have performed carefully and
properly; (the question of non-performance is questionable- the standard of
negligence and carelessness- this may tie into vicarious liability- costs the
employer, you may
(d) an employee uses abusive or insulting language, or behaves in a manner
insulting, to his employer or to a person placed in authority over him by his
 employer; (the type of language, and who it is directed to- has to be someone in
authority)
(e) an employee knowingly fails, or refuses, to obey a lawful and proper command
which it was within the scope of his duty to obey, issued by his employer or a
person placed in authority over him by his employer;
- NOTE: If you are unwell, you have to inform your employer as soon as reasonably
practicable.
- Using abusive or insulting language to someone who is ranked higher than you will be gross
misconduct
(f) in the lawful exercise of any power of arrest given by or under any written law,
an employee is arrested for a cognizable offence punishable by imprisonment
and is not within fourteen days either released on bail or on bond or otherwise
lawfully set at liberty; (this is at the point of arrest, not conviction) or
(g) an employee commits, or on reasonable and sufficient grounds is suspected of
having committed, a criminal offence against or to the substantial detriment of
his employer or his employer’s property.
- Section 44(4) says these are some of the reasons why you may be dismissed but they are not
all the reasons as the employer and employee can decide what other terms can lead to
summary dismissal. So long as an employer can demonstrate that whatever was done still
amounts to gross misconduct.
- Summary dismissal occurs when there is gross misconduct. Note: Summary dismissal is
without notice or notice that is short of the statutory requirement.
- Section 41 must be read together with Section 44. There is a massive judicial debate on where
Section 41 lies. Section 41 states:
- Subject to section 42(1), an employer shall, before terminating the employment of an
employee, on the grounds of misconduct, poor performance or physical incapacity
explain to the employee, in a language the employee understands, the reason for which
the employer is considering termination and the employee shall be entitled to have
another employee or a shop floor union representative of his choice present during this
explanation..
(1) Notwithstanding any other provision of this Part, an employer shall, before terminating
the employment of an employee or summarily dismissing an employee under section
44(3) or (4) hear and consider any representations which the employee may on the
grounds of misconduct or poor performance, and the person, if any, chosen by the
employee within subsection (1), make. (if you are going to be terminated in relation to
misconduct, physical incapacity or poor performance the above section must be followed).
- Shop floor union representative is the person who is appointed to the particular office or
organisation.
- Section 44(4) is about what gross misconduct is. It envisions a scenario where there is no
notice or less notice
- Section 41 envisions a scenario of misconduct, but NOT gross misconduct.
o If there is a scenario of misconduct, poor performance or physical incapacity and you
are going to be terminated for this, you have to have a hearing.
- There can be summary dismissal which is lawful and summary dismissal which is unlawful
and that would amount to unlawful dismissal.
- Unlawful dismissal is different from unfair termination.
- Section 45 guides what unfair termination is.
- The legal question as to what lawful summary dismissal is in debate and Section 41 throws
the spanner in the works because some judges argue Section 41 does not apply to all of the
scenarios in Section 44(4) whereas others argue that Section 41 applies to all of the scenarios
in Section 44(3-4).

- John Rioba Maugo v Riley Falcon Security Services (ELC) (2016): cause no 7 of 2015:
question of a security guard who was summarily dismissed and then reinstated. Whether the
 summary dismissal of the claimant’s employment was fair. Look at the other important cases.
The case was determined in 2016.

The complainant relied on the case of David Gichana Omuya v Mombasa Maize Millers Limited
[2014]eKLR in which the judge held as follows:-

''20 Section 41 of the Employment Act requires an employer to notify and explain to an employee in a
language the employee understands of the reasons it is considering for terminating the services of the
employee. The employer is also under an obligation to hear and consider any representation which the
employee may make before taking the decision to terminate an employee.
During the process the employee is entitled to have a fellow employee present and if a union member,
a shop floor union representative.
The requirements of section 41 of the Act have long pedigree in administrative/public law and are
usually referred to as the rule of natural justice. In employment law and practice, it is called
procedural fairness.'' [Emphasis added]
The Claimant further relied on the case of Anthony Mkala Chitavi v Malindi Water & Sewerage
Co. Limited [2013]eKLR in which it was held that;
'60. Section 41 of the Employment Act, 2007 has now made procedural fairness part of the
employment contract in Kenya. Prior to the enactment of the Act, the right to a hearing was not part of
the employment contract unless it was expressly incorporated into the contract by agreement/staff
manuals or policies of the parties or through regulations for public entities.
An employer was free generally to dismiss for a bad reason or a good reason but on notice or payment
in lieu of notice. The employer could even dismiss for no reason at all. There was no obligation to
notify or listen to any representation by the employee.
The law was very harsh on employees. I believe this could have been one of the factors which led to
incorporating what has long been referred to in administrative law as the rules of natural justice and
embodied in the Latin maxim audi alteram partem rule into the employment contract. Whatever the
reasons, the Employment Act, 2007 has fundamentally changed the employment relationship in
Kenya.
And what does section 41 of the Act require. The first observation is that the responsibility
established is upon the shoulders of the employer. In a claim for unfair termination or wrongful
dismissal on the grounds of misconduct, poor performance or physical incapacity, it is the employer
to demonstrate to the Court that it has observed the dictates of procedural fairness.
- The employer has to show that they had procedural fairness if the employee argues that there
was unfair terminsation
The ingredients of procedural fairness as I understand it within the Kenyan situation is that the
employer should inform the employee as to what charges the employer is contemplating using to
dismiss the employee. This gives a concomitant statutory right to be informed to the employee.
- The employer has the duty to be informed while the employee has the right to be informed

Secondly, it would follow naturally that if an employee has a right to be informed of the charges he
has a right to a proper opportunity to prepare and to be heard and to present a defence/state his case in
person, writing or through a representative or shop floor union representative if possible.
Thirdly, if it is a case of summary dismissal, there is an obligation on the employer to hear and
consider any representations by the employee before making the decision to dismiss or give
other sanction.”

- If you are to comply with Section 41, does this mean that judicial precedent are amending the
law to say that summary dismissal has to have notice? In what instances do you give notice
and in what instances do you not give notice in the context of summary dismissal?

The Claimant relied on the case of Nicholas Otinyu Muruka v Equity Bank Limited [2013]eKLR
where the court stated that;
''...disputes of summary dismissal will always be subjected to the test of section 41 of the Act
whenever employees dispute and claim that the circumstances of the case did not give themselves to
reasons of gross misconduct.''
Drunkenness is a very shaky ground to found liability for purposes of summary dismissal. First,
drinking alone or smelling alcohol par se is not a ground for summary dismissal. Section 44(4) (b)
specifically provides that the employee is liable for dismissal if: ''during working hours, by becoming
intoxicated, an employee renders himself unwilling or incapable to perform his work properly.”…
- They should be unwilling or uncapable of performing the work and just being drunk is not
enough
Radido J. captured the principles in section 41 in the case of Mkala (Anthony Mkala Chitavi v
Malindi Water & Sewerage Co. Limited) when he stated as follows;
And what does section 41 of the Act require? The first observation is that the responsibility
established is upon the shoulders of the employer. In a claim for unfair termination or wrongful
dismissal on the grounds of misconduct, poor performance or physical incapacity, it is the employer
to demonstrate to the Court that it has observed the dictates of procedural fairness.
The ingredients of procedural fairness as I understand it within the Kenyan situation is that the
employer should inform the employee as to what charges the employer is contemplating using to
dismiss the employee. This gives a concomitant statutory right to be informed to the employee.
Secondly, it would follow naturally that if an employee has a right to be informed of the charges he
has a right to a proper opportunity to prepare and to be heard and to present a defence/state his case in
person, writing or through a representative or shop floor union representative if possible.
Thirdly if it is a case of summary dismissal, there is an obligation on the employer to hear and
consider any representations by the employee before making the decision to dismiss or give other
sanction.”
- Anthony was used as a guide in relation to summary dismissal in relation to Section 41 and
44.
Nation Media Group Limited v Onesmus Kilonzo (2017): “The Act in part VI stipulates the
manner of termination of various contracts of service and the respective remedies available to each
category of an employee in case of unlawful termination. Two of them, summary dismissal and unfair
termination are relevant to this appeal.
The general proposition of the law as stated in section 44(2) is that, no employer has a right to
terminate a contract of service without notice or with less notice than that stipulated in statutory
provisions or contractual term. However, section 44(1) allows the employer to summarily dismiss an
employee – that is without notice or less notice if the employee has by his conduct indicated that he
has fundamentally breached his obligation under the contract of service (S.44(3), or if the employee
has committed acts of gross misconduct as stipulated in section 44(4). Such an employee has no
right to be heard before summary dismissal. However, if the employer contemplates to summarily
dismiss an employee on grounds of misconduct or poor performance, the employer is required before
making a decision to summarily dismiss the employee to explain the reason, hear and consider the
employee’s representations (section 41(1) and 41(2)).
- It is the conduct of the employee that determines summary dismissal. The employer has to
prove that the employee did the things that amounted to gross misconduct which resulted in
summary dismissal.
- The court distinguishes Section 44(3) and (4) on gross misconduct from what is set out in
Section 41 on general misconduct, poor performance or physical incapacity. If it is an issue of
gross misconduct, you can dismiss without a hearing or notice but if it is the other, then the
person must be heard. This case can be contrasted with John Rioba Maugo v Riley Falcon
Security (2016).
“An employee who is summarily dismissed for a lawful cause is entitled to be paid all monies,
allowances and benefits due to him up to the date of his dismissal - (s. 18(4).”
- Summary dismissal does not amount to you losing all your money or pay.
“On the other hand, if an employee is summarily dismissed for unlawful cause, he has a right to
complain to a labour officer or file a suit in ELRC - Employment and Labour Relations Court -
(section 47 and 87). The remedies for wrongful dismissal are stipulated in section 49 and include
wages or salary for a period not exceeding twelve months (s. 49(1) (c) and, reinstatement (S. 49(3)]”
 - The court distinguishes between lawful and unlawful summary dismissal. If it is an unlawful
summary dismissal then you can complain, but if it is lawful, you can’t. An unlawful
summary dismissal is called a wrongful summary dismissal- it goes to substance, not
procedure.
“The requirements of procedural fairness in the special case where summary dismissal is
contemplated on grounds on misconduct or poor performance, or the fact that the remedies for
wrongful termination and unfair termination are similar does not transform a wrongful summary
dismissal into unfair termination. The two are distinct concepts. The respondent did not invoke the
provisions of section 45 which specifically deals with unfair termination. It is clear from the statutory
provisions that Section 45(3) applies to a claim for unfair termination and not to a claim for wrongful
or unlawful summary dismissal.”
- The courts have not streamlined the language they are using. There is no unfair dismissal, it is
only unfair termination, it is wrongful or summary dismissal – these are semantics.
- Dismissal can only be wrongful, not unfair unless it is within the special circumstances based
on Section 41.
- As a general rule, there is no procedure envisioned for summary dismissal as envisioned by
Section 44(3) and (4).
- The question of procedural fairness only arises with Section 41 because it requires someone
to be informed and to have a hearing. In all the other contexts of summary dismissal,
procedural fairness does not come into play. Is this in breach of Article 41 and 47 of the
Constitution?

Mary Chemweno Kiptui v Kenya Pipeline Company Limited (2014): held

“The industrial Court has now built firm jurisprudence on circumstances within which the employer
and employee relationship can be terminated or how the process of summary dismissal can be
conducted so at to meet the strict provisions of the law and to avoid making the same invalid. This
Court in the case of Kenya Union of Commercial Food and Allied Workers versus Meru North
Farmers Sacco Limited Cause No. 74 of 2013 held that whatever reason or reasons that arise to
cause an employer to terminate an employee, that employee must be taken through the mandatory
process as outlined under section 41 of the Employment Act. These apply in a case for termination as
well as in a case that warrant summary dismissal.
Section 41 of the Employment Act is couched in mandatory terms. Where an employer fails to follow
these mandatory provisions, whatever outcome of the process is bound to be unfair as the affected
employee has not been accorded a hearing in the presence of their union representative or in the
presence of a fellow employee of their own choice. The situation is dire where such an employee is
terminated after such a flawed process without a hearing as such termination is ultimately unfair. The
employee must be informed through a notice as to the charges and given a chance to submit a defence
followed by a hearing in due cognisance of the fair hearing principles as well as natural justice tenets.
Invariably therefore, before an employer can exercise their right to terminate the contract of an
employee, there must be valid reason or reasons that touch on grounds of misconduct, poor
performance or physical incapacity. Once this is established the employee must be issued with a
notice, given a chance to be heard and then a sanction decided by the respondent based on the
representation made by the affected employee. It is now established best practice to allow for an
appeal to such an employee within the internal disputes resolution mechanism and with due
application of the provisions of section 5(7)(c) of the Employment Act. Where this procedure is
followed an employer would have addressed the procedural requirements outlined under section 41
and any challenge that an employee may have would be with regard to substantive issues only.
Summary dismissal on the other hand is largely at the instance of an employer. The standard
applicable therefore are of a higher nature as this process is prone to abuse as the employer is in a
more superior position than an employee. Summary dismissal can take place when an employer
terminates the employment of an employee without notice or with less notice than that which the
employee is entitled by any statutory provision or contractual term. However, even in cases of serious
breach of a contract as under section 44(3) or on committing acts as outlined under section 44(4) of an
employee being absent from work, being intoxicated, negligence, abusive, failure to obey lawful
orders, criminal arrest or charges, suspect in a criminal case, all these serious acts, such an employee
is subject to be treated as under section 41 of the Employment Act with regard to being accorded a
hearing.”
High Court (Employment and Labour Relations Court) in this case disagrees on the question of
procedure with the Court of Appeal whose decision will stand.

Samuel Uche Ajaegbu v Eagle Vet Kenya Ltd (2018): look at this case

Bamburi Cement Limited v William Kilonzi (2016):

2. Unfair Termination

- Section 45(1) states “No employer shall terminate the employment of an employee unfairly.
- This should be read with Section 43 which states:
(1) Section 43(1) In any claim arising out of termination of a contract, the employer shall be
required to prove the reason or reasons for the termination, and where the employer fails to do
so, the termination shall be deemed to have been unfair within the meaning of section 45.
- The employer has to prove the reason for termination. The employer is the person who has the
power and because of this the provisions around summary dismissal and unfair termination
are put in place to protect the employee.
- Section 43 emphasises that the employee must be protected. If the employer fails to prove, it
will result in unfair termination.

(2) Section 43(2) - The reason or reasons for termination of a contract are the matters that the
employer at the time of termination of the contract genuinely believed to exist, and which
caused the employer to terminate the services of the employee.

- The test being established is not a test of reasonableness but one of genuineness or truth. This
is important for pretext- the reason they terminated must be that they genuinely believed that
the circumstances were there. The employer must lead evidence to show that there was poor
performance. You cannot approbate and reprobate (say one thing and then deny it). The
employer must have a reason and the reason must be encamped on a genuine belief that is
covered in the statute or contract. Pre-text is everything e.g. you cannot just terminate
knowing someone has HIV/AIDS.
Section 45:
(1) No employer shall terminate the employment of an employee unfairly.
(2) A termination of employment by an employer is unfair if the employer fails to prove—
(a) that the reason for the termination is valid;
(b) that the reason for the termination is a fair reason—
i. related to the employee’s conduct, capacity or compatibility; or
ii. based on the operational requirements of the employer; and
(c) that the employment was terminated in accordance with fair procedure.
You have to prove the 3 conditions – it is a conjunctive provision
(3) An employee who has been continuously employed by his employer for a period not less than
thirteen months immediately before the date of termination shall have the right to complain that he
has been unfairly terminated.
- Section 42 talks about termination of probationary contracts:
- Section 42:
(1) The provisions of section 41(on procedural fairness) shall not apply where a termination of
employment terminates a probationary contract.
 Procedural fairness does not apply if you are on your probationary period thus you can be
summarily dismissed if there is a valid reason. But if it is an invalid reason, then it can be
challenged.
 (2) A probationary period shall not be more than six months, but it may be extended for a further
period of not more than six months with the agreement of the employee.
(3) No employer shall employ an employee under a probationary contract for more than the
aggregate period provided under subsection (2). (You can’t be on probation for more 12
months)
A party to a contract for a probationary period may terminate the contract by giving not less than
seven days’ notice of termination of the contract, or by payment, by the employer to the employee, of
seven days’ wages in lieu of notice. Seven days’ notice if you are on probation – nothing less but
can be more