Githaiga v Concordia Building & Civil Engineering Co Ltd [2025] KEELRC 2433 (KLR)

FACTUAL BACKGROUND

The Claimant was initially employed by the Respondent as a site engineer on a one-year contract for the Mitubiri Sanitary Landfill Project. The project was later extended. During the extension, the Claimant was redeployed to another project in Garissa. It was while working there that the Claimant alleged he received a text message from the Respondent terminating his contract. No reasons were given, and he was not afforded an opportunity to be heard.

The Respondent denied deploying the Claimant to Garissa, arguing that his engagement related only to the Mitubiri project and that his contract had ended by effluxion of time. However, the Respondent also claimed that its client had directed the Claimant’s removal from Mitubiri due to alleged defiance, contradicting its earlier defence.

Issues

1. Whether the Claimant was employed by the Respondent to serve in both the Mitubiri and Garissa projects.
2. Whether the Claimant’s employment was terminated by effluxion of time or was improperly terminated.

Court’s Findings

On the first issue, the court found that the Claimant was indeed employed beyond the Mitubiri project. The Respondent’s own admission that its client wrote on 24 July 2020 requesting the Claimant’s removal was proof that the employment relationship extended beyond the initial one-year contract.

On the second issue, the court rejected the argument of termination by effluxion of time. The Respondent had alleged misconduct (defiance of the client’s supervisor) but failed to subject the Claimant to any disciplinary process as required by section 41 of the Employment Act. The court emphasized that an employee must be given an opportunity to be heard before termination. The Respondent’s failure rendered the termination unlawful.

The court also noted that the Respondent failed to respond to the Claimant’s advocate’s demand letter—an omission that strengthened the Claimant’s case.

Key Takeaways

• While employers have the right to terminate contracts, termination must be both fair and procedural. Arbitrary termination without due process exposes employers to declarations of unfair termination and damages.
• Employers must respond to allegations of unfair termination, including through advocates’ demand letters. Silence may be deemed an admission of liability.