The Court of Appeal (CoA) in Gogni Rajope Construction Limited & another versus Cornel Otieno Omondi (Civil Appeal No. 321 of 2019) [2025] KECA 161 (KLR) affirmed the High Court decision in Samuel G Momanyi v Attorney General & another [2012] eKLR. The High Court had held that Section 45(3) of the Employment Act is unconstitutional.
Section 45(3) of the Act restricted employees who have been employed for less than thirteen months from claiming that their termination was unfair. This meant that employees who had served for less than 13 months could not challenge unfair termination. Both the High Court and now the Court of Appeal are of the view that the provision was inconsistent with Article 22,24 and 27 of the Constitution which provide for equality before the law, right to equal protection and equal benefit of the law.
The judgment strengthens protections against unfair termination of employees, regardless of tenure. All employees are entitled to due process as provided for in Section 41and 45 of the Act. Section 41of the Act provides that an employer should hear and consider any representations which an employee may have on the grounds of misconduct or poor performance before terminating their employment.
Section 45 of the Act provides that no employer should terminate the employment of an employee unfairly. It further adds that a termination of employment is unfair if the employer fails to prove that the reason for termination was valid and in accordance with fair procedure.
Implications of the decision
- Employers should follow the due process as enshrined in Section 41 of the Employment Act, 2007 in terminating an employee’s contract.
- All employees, regardless of tenure can now claim unfair termination if due process is not followed. Employers cannot rely on Section 45(3) of the Employment Act as it is not aligned with the best labour practices and contravenes Articles 22,24 and 27 of the Constitution.
- The decision promotes fair labour practices as enshrined in the Constitution.
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