Termination of Employment in Kenya: Case law review

Kenyan courts continue to deal with the issue of termination of employment which remains a concern for businesses and organizations both locally and internationally. Recent jurisprudence on termination of employment emerging from the courts seems to be balancing the employer’s prerogative to discipline employees for misconduct and ultimately take decisions in the interest of the employer against the rights of an employee to fair labour practices guaranteed by the Constitution. More often than not, employers will be champing at the bit to ensure that serious misconduct such as fraud, theft and dishonesty by an employee is addressed with urgency and the employee is dismissed as quickly as possible – and justifiably so. However, the courts have continued to emphasize that even in cases of very clear and serious misconduct by an employee, the process of termination must be fair and in the event of a claim, the burden of proving both the validity of the reasons for termination and the fairness of the process shall rest on the employer. This was the case in Judicial Service Commission v Muraya & 4 others (Civil Appeal E002 of 2024) [2024] KECA 1599 (attached below) where the Court of Appeal described an employee’s right to fair process prior to termination as “inalienable” i.e., cannot be denied in any circumstances, and held that:

1.     Termination of employment is a two-step procedure. First, there must be a valid and justifiable reason for termination. Second, once the reason has been established, the termination must be done in accordance with the stipulated laid down procedure in the employer’s human resource manual where one exists and in accordance with the minimum requirement set out in the Employment Act.
2.     Prior to the termination of employment, the employee must be given an opportunity to be heard by being furnished with the charges he/she facing and afford him/her an opportunity to defend himself or herself. We emphasise that, it matters not if on the face of it, the employee’s conduct smacks of guilt and that he/she has a hopeless defence; the right to be heard is inalienable.

Employers must therefore be careful to ensure compliance with the requirements for fair termination before dismissal of employees even in cases of serious and seemingly indefensible misconduct.