Almost every employment dispute starts the same way. The employer is convinced they did everything right. The employee is convinced they got robbed. And somewhere in the middle is what the Employment Act, 2007 actually requires — which, it turns out, most people on both sides have only a rough idea of.
The employment question
How do courts tell the difference? Mostly by asking who’s in control. Not who signs the invoice, who’s in control of the actual work.
Take John Wachira Githongo v Soyama Hardware Limited [2017] eKLR. The man had been sourcing hardware materials for a company, getting paid per completed job, and when the arrangement ended he sued claiming unfair dismissal as an employee. The court looked at the facts and said no, nobody at the company told him which suppliers to buy from, how hard to negotiate on price, or when deliveries had to land. He ran that side of things himself. Contractor, not employee.
What you call someone in a contract counts for very little if the reality on the ground says something else.
Termination of employment by employer
Once you’ve established someone is genuinely an employee, Sections 41, 43 and 45 of the Act boil termination down to two questions, both of which must exist.
Was there actually a good reason? Misconduct, poor performance, incapacity, a genuine redundancy — something real. And here’s the bit that catches employers out: it’s on you to prove it, not on the employee to disprove it. No proof, and the law just assumes you were wrong.
Was the process fair? This is where the vast majority of cases actually turn. Section 41 says the employee has to be told what they’re accused of, in language they understand, with the chance to bring a colleague or union rep along, this is the part most employers skip, actually given a real hearing before anyone decides anything.
In Kenfreight (EA) Limited v Benson K. Nguti [2016] eKLR, the court was blunt about it: paying someone in lieu of notice doesn’t magically make a dismissal fair. You still need the reason and the process. Galgalo Jarso Jillo v Agricultural Finance Corporation [2021] eKLR goes further and lays out what the process should actually look like — tell them the mistake, let them respond, let them call witnesses if it comes to that, tell them what you decided. Miss one of those and it genuinely doesn’t matter how bad the misconduct was. The termination falls apart on procedure alone, every time.
