The end of an employment relationship can be tense for both employers and employees. The period leading to separation can be difficult to navigate, particularly where parties are unfamiliar with the Employment Act and its requirements. This often results in breaches of the law and employees’ rights.
Most employers do not set out to breach employment law. However, they often focus on why an employee should be dismissed and overlook how the dismissal should be carried out.
Under Kenyan employment law, a valid reason for dismissal is only one part of the test. Even where misconduct appears clear, an employee may successfully challenge a dismissal if the employer fails to follow a fair disciplinary process. The Employment Act, 2007 requires employers to justify the reason for dismissal and show that the decision was reached through a procedurally fair process.
Employers who understand and consistently follow the disciplinary process reduce the risk of costly litigation and promote accountability, transparency and trust within their organisations.
A. Why Due Process Matters
Kenyan employment law requires employers to satisfy two fundamental requirements before terminating employment:
• there must be a valid and fair reason for the dismissal; and
• the dismissal must be carried out through a fair procedure.
Sections 43 and 45 of the Employment Act require employers to prove that there was a valid and fair reason for terminating an employee and that the decision was made in accordance with fair procedure. Section 41 complements these provisions by prescribing the mandatory disciplinary process that must precede dismissal on grounds of misconduct, poor performance or physical incapacity.
Kenyan courts have consistently held that these requirements are mandatory rather than optional. In the case of Walter Ogal Anuro v Teachers Service Commission [2013] KEELRC 386 (KLR), the court established the now well-known principle that for a termination to be lawful, an employer must satisfy both substantive and procedural fairness. Possessing only one without the other is insufficient.
B. What Does a Fair Disciplinary Process Look Like?
A disciplinary process is a structured procedure through which an employer investigates allegations of misconduct, poor performance or incapacity, gives the employee an opportunity to respond, and makes an informed decision before imposing disciplinary sanctions. While every organisation may have its own internal disciplinary policy, the process must always comply with the minimum procedural safeguards prescribed under the Employment Act, 2007.
1. Conduct Preliminary Investigations
Not every complaint should lead to disciplinary proceedings. Employers should first establish whether there is a case to answer by carrying out impartial and confidential investigations.
This may involve reviewing documents, interviewing witnesses and gathering relevant evidence. The purpose of the investigation is to determine whether there is sufficient basis to commence formal disciplinary proceedings. Where the evidence is insufficient, the matter may be resolved without further action.
2. Issue a Show Cause Notice/Letter
Where the preliminary investigations disclose a prima facie case against the employee, issue a written show cause notice/letter. The letter should clearly set out:
• the allegations against the employee;
• the dates, times and particulars of the alleged misconduct or poor performance;
• the workplace rules, contractual provisions or policies alleged to have been breached;
• the evidence or documents the employer intends to rely upon, where appropriate;
• the period within which the employee is required to submit a written response; and
• a notification that disciplinary action, including dismissal where appropriate, may be taken if the explanation is found to be unsatisfactory.
General accusations such as misconduct or poor performance without supporting particulars rarely satisfy the requirements of procedural fairness before the law courts.
3. Consider the Employee’s Response
The disciplinary process should not proceed automatically. You must consider what an employee has to say about the allegation.
Upon receiving the employee’s written explanation, the employer should objectively consider whether the response satisfactorily addresses the allegations. In some instances, the explanation may resolve the matter entirely, making further disciplinary action unnecessary.
Where the response fails to adequately explain the conduct complained of, the employer may proceed to the next stage of the disciplinary process.
4. Invite the Employee to a Disciplinary Hearing
Where the explanation is unsatisfactory, the employer should formally invite the employee to a disciplinary hearing in accordance with Section 41 of the Employment Act.
Section 41 of the Employment Act, 2007 requires that before any disciplinary action is taken, an employee must be informed of the allegations in a manner they understand and be given an opportunity to respond. The invitation should specify:
• the date, the time, and the venue (or virtual platform);
• the allegations to be considered;
• the employee’s right to be accompanied by a fellow employee or a shop floor union representative under Section 41;
• any documents the employer intends to rely upon;
• the possible disciplinary outcome (including termination where applicable).
In the case of Postal Corporation of Kenya v Andrew K. Tanui [2019] eKLR, the Court of Appeal clarified the essential components of a fair disciplinary hearing under Section 41. The Court held that an employee must be informed of the specific allegations, be allowed adequate opportunity to prepare a defence, be informed of the right to be accompanied during the hearing and be afforded a genuine opportunity to respond before any decision is made.
This stage should never be treated as a mere formality. The purpose of the hearing is to ensure that the employer hears the employee before making a decision.
5. Conduct a Fair Hearing
The disciplinary hearing should be impartial, objective and conducted in good faith. Employers should approach the hearing with an open mind rather than a predetermined outcome.
In the case of Kenny Kinako v Ringier Kenya Limited [2016] eKLR, the Court observed that where a disciplinary hearing is conducted merely to rubber-stamp a pre-determined outcome, the process ceases to be fair and amounts to a sham.
The employee should be allowed to present their defence, respond to the evidence against them, call a witness, and make representations before any decision is reached.
Transparency is equally important. In the case of Akala v Kenya Commercial Bank Limited [2025], the Court underscored the importance of providing an employee with the material intended to be relied upon during the disciplinary process, including investigation reports, witness statements and other relevant documents. Additionally, the court opined that full and complete documents must be duly served upon an employee in good time to enable the employee to sufficiently prepare. A disciplinary process should not be a matter of ticking boxes, it must be shown to have been intended to hear the employee’s position on the charges levelled against him/her.
Employers should also maintain detailed minutes and records of the proceedings, as these may prove invaluable should the disciplinary process later be challenged.
6. Make and Communicate the Decision
Once all the evidence has been considered, the employer should objectively determine the appropriate outcome. Depending on the circumstances, the employer may decide to:
• take no disciplinary action;
• issue a warning or impose another appropriate sanction such as placing an employee on a performance improvement plan; or
• dismiss the employee.
Whatever decision is reached, it should be communicated in writing, clearly setting out the reasons for the decision.
7. Implement the Decision
Where the dismissal is warranted, the employer should comply with all contractual and statutory obligations, which include:
• issuing a written dismissal letter setting out the reasons for the dismissal;
• payment of terminal dues, including any accrued salary, accrued but untaken leave, overtime (where applicable), gratuity or service pay (as payable), and any other contractual benefits;
• payment of any outstanding pension or retirement benefits in accordance with the applicable pension scheme (if applicable);
• issuance of the requisite termination notice, or payment in lieu of notice where applicable; and
• issuance of a Certificate of Service under Section 51 of the Employment Act.
A good or fair decision reached through a flawed process may still be unlawful. Taking the time to follow the correct procedure is therefore not merely a legal obligation, it is sound business practice.
The bottom line
At Muthoga & Omari Advocates, we advise employers on workplace disciplinary procedures, employment policies and lawful termination processes. Whether you are handling a routine disciplinary matter or navigating a complex employment dispute, obtaining legal guidance early can help ensure compliance with the law while safeguarding your organisation from unnecessary legal risk.
Glossary of Terms
Gratuity – A lump-sum payment made by an employer to an employee upon termination or at the end of their employment, usually as a token of appreciation for long and dedicated service.
Gratuity pay is not automatic. It must be expressly provided for in an employee contract, or Collective Bargaining Agreement or company policy.
Service Pay – A benefit provided on termination or end of employment, which is calculated as 15 days of salary for every completed year of service/employment. However, if an employer has enrolled their employee for NSSF or a Registered Pension Fund, service pay is not payable.
Author: Emma Gloria Achieng, Advocate Trainee
August, 2026.