Analysis: Summary Dismissal and Procedural Fairness under Section 41 of the Employment Act – A Case Review of Gogni Rajope Construction Co. Ltd & Another v Omondi [2025] KECA 161 (KLR)

In the landmark decision of Gogni Rajope Construction Company Limited & Another v Omondi [2025] KECA 161 (KLR), the Court of Appeal of Kenya provided important clarification on the procedural requirements surrounding summary dismissal under the Employment Act, 2007. Specifically, the Court interpreted the scope and application of Section 41, which outlines the procedural safeguards that must be observed before an employee can be dismissed on grounds of misconduct, poor performance, or incapacity.

The facts of the case reveal that the Respondent employee was accused of misconduct and was called into a meeting where he was questioned about the allegations. The employer argued that this meeting fulfilled the statutory requirement to afford the employee an opportunity to be heard before termination, as required under Section 41. However, the Court of Appeal found that this process was insufficient and procedurally deficient.

The Court emphasized that Section 41 envisages a structured and fair disciplinary process, which cannot be reduced to an impromptu or informal meeting. It held that for the hearing to be compliant with statutory and constitutional standards of fairness, the employee must be:

1. Given adequate notice of the allegations,
2. Afforded reasonable time to prepare a defense, and
3. Allowed the opportunity to be accompanied by a fellow employee or union representative, as provided under the Act.

Furthermore, the Court stressed that the employer's failure to observe these procedural steps rendered the dismissal unfair, notwithstanding the substantive allegations of misconduct. In support of this conclusion, the Court referenced Section 45(2)(c) of the Employment Act, which requires that not only must there be a valid and fair reason for termination, but the process leading to the dismissal must also be fair.

This decision reinforces the principle that procedural fairness is a distinct and indispensable component of lawful termination. Even in cases of serious misconduct that might warrant summary dismissal, the employer is not exempt from following due process. The Court's position aligns with a broader constitutional commitment to fair administrative action, as enshrined under Article 47 of the Constitution of Kenya, 2010.

In academic terms, Gogni Rajope contributes to the growing jurisprudence emphasizing that substantive justification alone does not suffice in employment termination cases. The procedural dimension is equally critical in protecting employees from arbitrary or unfair dismissal and in ensuring adherence to the rule of law in employment relations.

 

Below is a detailed Case Brief: 

Case Brief: Gogni Rajope Construction Company Limited & Another v Omondi [2025] KECA 161 (KLR)

Parties:

• Appellants: Gogni Rajope Construction Company Limited & Another
• Respondent: Omondi

Procedural History:

The matter originated at the Employment and Labour Relations Court (ELRC), where the Respondent (employee) challenged his dismissal by the Appellants (employers) on grounds of unfair termination. The ELRC found in favor of the employee, holding that the dismissal violated the procedural requirements of the Employment Act. The employer appealed to the Court of Appeal, challenging the ELRC’s findings on both substantive and procedural grounds.

Facts:

The Respondent, an employee of the Appellants, was accused of misconduct. Following the allegations, he was summoned for a meeting during which he was questioned about the alleged misconduct. The employer did not issue prior written notice specifying the nature of the allegations, nor did they give the Respondent an opportunity to prepare a defense or be accompanied by a representative.

The Appellants argued that this meeting satisfied the requirements of Section 41 of the Employment Act, 2007, which mandates that an employee be given a chance to be heard before termination. They further asserted that the dismissal was substantively justified due to the alleged misconduct.

Legal Issues:

1. Whether the employer complied with the procedural requirements of Section 41 of the Employment Act prior to dismissing the employee.
2. Whether an impromptu meeting constitutes a fair disciplinary hearing under the law.
3. Whether the failure to follow the correct procedure renders an otherwise substantively justified dismissal unfair.

Relevant Law:

• Section 41, Employment Act, 2007:
  Requires that before terminating an employee on grounds of misconduct, poor performance, or physical incapacity, the employer must explain the reason for the intended termination in the presence of the employee and another person (such as a colleague or union representative), and give the employee an opportunity to respond.
• Section 45(2)(c), Employment Act, 2007:
  States that a termination is unfair if it is not conducted in accordance with fair procedure.
• Article 47, Constitution of Kenya (Fair Administrative Action):
  Guarantees every person the right to administrative action that is lawful, reasonable, and procedurally fair.

Holding (Decision):

The Court of Appeal upheld the ELRC’s decision and found that the Respondent’s termination was procedurally unfair. It held that Section 41 of the Employment Act requires more than an informal or impromptu meeting. The employee must be given adequate notice of the disciplinary hearing and a reasonable opportunity to prepare a defense.

The Court rejected the Appellants' argument that the casual meeting met the threshold of a fair hearing and emphasized that disciplinary processes must be substantive and structured, not ad hoc.

Ratio Decidendi (Legal Reasoning):

The Court reasoned that procedural fairness is not a mere formality—it is a mandatory safeguard intended to protect employees from arbitrary dismissal. The requirements of notice, disclosure of allegations, time to prepare, and the right to representation are fundamental components of a fair disciplinary process.

By failing to provide these procedural safeguards, the employer violated both statutory law (Sections 41 and 45 of the Employment Act) and constitutional principles (Article 47).

Even if the allegations of misconduct were valid, the lack of due process rendered the dismissal legally untenable.

Disposition:

• Appeal dismissed.
• The finding of unfair termination by the ELRC was upheld.
• The Respondent was entitled to the remedies awarded at the trial court (specific remedies not detailed in the excerpt).

Significance:

This case is significant for several reasons:

1. Clarifies the scope of Section 41 of the Employment Act by setting a high bar for what constitutes a procedurally fair hearing.
2. Reinforces the importance of due process in employment law, aligning statutory requirements with constitutional guarantees of fair administrative action.
3. Highlights that substantive justification alone does not cure procedural defects in termination processes.
4. Serves as a caution to employers to strictly comply with procedural requirements, especially in disciplinary actions involving summary dismissal.