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.

 

 

Whether the transaction between the deceased husband and purchaser was lawful, and whether the purchaser was a bona fide buyer for value without notice of any adverse interest - The case of Margaret Akuku v Omollo & 2 others [2025] KECA 1170 (KLR)

Case: Juma v Omollo & 2 others (Suing as the Legal Representatives of the Estate of the Late Raphael Okoth Omollo) (Civil Appeal 232 of 2019) [2025] KECA 1170 (KLR) (20 June 2025) (Judgment)

PART I: Summary of the case

The Court of Appeal dismissed an appeal by a widow who was trying to reclaim land her late husband had sold to a third party. She argued that the sale was fraudulent and that she had a spousal interest in the property, as well as a beneficial interest arising from her financial contributions. She also alleged that the transfer was invalid for lack of spousal consent and approval from the Land Control Board.

The land had been mortgaged to a bank, and upon her husband's default, he sold the property privately in 1997 to prevent a public auction. The buyer took possession and began collecting rent. After her husband's death in 1998, the appellant discovered the sale and challenged its validity.

The Court held that although she was the deceased’s spouse, she had not shown that she had any registered, legal, or equitable right in the land that could override the title of the purchaser. The transaction took place before the enactment of the 2010 Constitution and the Matrimonial Property Act, which now provide stronger protections for matrimonial property.

While spousal rights can exist under Section 28 of the Land Registration Act, the Court emphasized that such rights must be clearly pleaded and supported by evidence—which was lacking in this case.

On the issue of Land Control Board consent, the Court noted that although consent is required for transactions involving agricultural land under Section 6 of the Land Control Act, both the seller and buyer were now deceased, and there was no evidence showing that consent was not obtained. The land records appeared regular, and the appellant failed to present sufficient grounds to invalidate the transaction.

Regarding the claim of trust, the Court reiterated that for a trust (whether express, implied, or constructive) to be upheld, it must be clearly pleaded and proven. The appellant only cited her marital status and financial input, which the Court found inadequate to establish a trust. There was no evidence of the husband intending to hold the land in trust for her, nor any customary or family arrangements to support such a claim under Section 28(b) of the Land Registration Act.

Ultimately, the Court concluded that the transaction between the deceased and the buyer was valid and that the purchaser was an innocent buyer for value without notice of any competing claims.

 

PART II: Legal Case Brief

Parties:

• Appellant: Widow of the late Raphael Okoth Omollo
• Respondents: Legal representatives of the deceased purchaser

 

Background:

• The appellant’s husband had charged land to a bank.
• Upon default, he sold the land privately in 1997 to avoid public auction.
• The purchaser took possession and began collecting rent.
• After the husband's death in 1998, the appellant discovered the transfer and challenged its validity.

 

Issues:

1.         Whether the appellant had a spousal or beneficial interest in the land.

2.         Whether the sale was invalid due to lack of spousal consent.

3.         Whether the absence of Land Control Board (LCB) consent invalidated the transaction.

4.         Whether the deceased held the land in trust for the appellant.

 

Holding:

The Court dismissed the appeal, finding the sale lawful and the purchaser a bona fide buyer for value without notice.

 

Court’s Reasoning:

1. Spousal Interest / Consent:

• Appellant was indeed the deceased’s wife.
• However, she failed to prove a registered or legally recognized interest in the property.
• The sale occurred before the enactment of the 2010 Constitution and Matrimonial Property Act.
• Spousal rights under Section 28 of the Land Registration Act must be pleaded and proven, which was not done.

2. Beneficial Interest / Contribution:

• The appellant claimed she contributed financially to preserve the land.
• The Court found no evidence of a beneficial interest or overriding equitable right.

3. Land Control Board Consent:

• LCB consent is mandatory for agricultural land under Section 6 of the Land Control Act.
• Both transacting parties were deceased.
• No conclusive evidence was provided to show consent was not obtained.
• The land register showed no irregularity.

4. Trust:

• The claim that the husband held the land in trust failed.
• Trust must be specifically pleaded and supported by evidence.
• Appellant’s reference to marriage and financial contribution was insufficient.
• No customary or family arrangement was established under Section 28(b) of the Land Registration Act.

 

Disposition:

• Appeal dismissed.
• Sale upheld as lawful.
• Purchaser affirmed as an innocent third party without notice of adverse claims.

 

Relevance of a Green Card Search in land transactions

What is a Green Card?

A Green Card is the original register maintained at the land registry for a specific parcel of land. It contains the entire history of the land, from the initial registration to the present day.

The Green Card search is a critical component in land transactions and due diligence processes in Kenya, particularly when dealing with freehold or leasehold titles registered under the Registered Land Act (Cap 300, now repealed).

Relevance of a Green Card Search

1. Verification of Ownership

• Confirms the legal owner of the land.
• Shows the chain of ownership (from the first registration to the current owner).
• Helps detect any fraudulent transactions or irregular transfers.

2. Check for Encumbrances

• Reveals any charges, caveats, cautions, or restrictions registered against the land.
• Ensures the land is not under dispute, mortgaged, or tied up in litigation.

3. Historical Due Diligence

• Essential in tracing the origin and progression of ownership, especially in areas with high land fraud risk.
• Useful in verifying whether transfers and subdivisions were done lawfully.

4. Required for Certain Transactions

• Necessary when preparing for:
• Land purchases/sales
• Transfers
• Subdivisions
• Land use changes
• Lenders may also require it before approving financing.

5. Protection from Land Fraud

• Since land fraud is prevalent, a Green Card search provides an official source of truth beyond what is shown in a Title Deed.
• Title Deeds can be forged, but the Green Card (held at the registry) is much harder to falsify.

 

The keys steps in Conversion Process of Land Titles and/or Procedure involved

Title conversion is the process of migrating land titles from old registration systems to the new system established by the Land Registration Act, 2012. The conversion of titles is a government-led initiative to migrate all land parcels from the old registration systems to a unified, secure, and digital system, streamlining land administration and enhancing security of tenure.

The conversion process involves several key steps:

1. Preparation and Publication
• The Survey of Kenya prepares cadastral maps and conversion lists, showing old and new parcel numbers.
• The Cabinet Secretary, Ministry of Lands publishes these lists in the Kenya Gazette and two national newspapers, notifying the public of the impending closure of old registers and opening of new ones after 90 days
2. Objection and Review Period
• Landowners or interested parties have 90 days to lodge any grievances using Form LRA 96 with the land registrar. If complaints arise, a caution is registered pending resolution.
• The Registrar reviews and resolves complaints within 90 days, with appeals permitted to the Environment and Land Court.
3. Public Notice for replacement titles.
• After the 90 days, landowners are invited to apply for the replacement of titles. Applications are made via the Ministry of Lands or the Ardhisasa portal, typically through an advocate, and must include:
• Completed application form (FORM LRA 97)
• Original title deed
• Identification documents (ID/Passport)
• Proof of payment of prescribed fees (No fees are charged for conversion)
4. Verification and Issuance
• The Land Registry verifies documents and may conduct site inspections.
• Upon approval, the old title is surrendered, and a new title deed (Certificate of Title LRA 20 or Certificate of Lease LRA) is issued within 21 days, reflecting the new registration details under the Land Registration Act, 2012

Special Cases of Title Conversion

• Lost Titles: Reconstruction under Section 33(5) of the LRA, involving gazette notices and verification.
• Succession: Heirs must present grants of probate or letters of administration to update registers.
• Court-Held Titles: Requires court orders for release, often involving advocates’ irrevocable undertakings.
• Sectional Properties: Must submit georeferenced sectional plans authenticated by the Director of Survey.