Corporate Case

Filing an unfair termination or dismissal case in the Kenyan Employment and Labour Relations Court (ELRC) requires strict adherence to both the Employment Act, 2007 and the ELRC Procedure Rules.

The process is structured to evaluate both substantive fairness (whether the employer had a valid, proven reason to dismiss you) and procedural fairness (whether they followed the correct steps, like a fair disciplinary hearing).

The essential steps, strict timelines, and required documents needed to build and file a strong case in Kenya are detailed below.

1. Required Documents

To file a case, your advocate will draft and assemble a bundle of pleadings and supporting evidence. The court relies heavily on documentary proof.

Legal Pleadings (Drafted by your legal representative)

• Memorandum of Claim (or Statement of Claim): The primary court document outlining your details, the employer’s details, the facts of your employment, how the termination violated the law, and the specific remedies/compensation you are seeking.
• Verifying Affidavit: A sworn statement by you (the claimant) confirming that the facts in the Memorandum of Claim are true.
• List of Witnesses and Witness Statements: Signed, written statements of what you and any witnesses will say during the trial.
• List of Documents: An index of all the supporting evidence you will rely on.

Supporting Evidence (The Exhibit Bundle)

• Employment Contract / Appointment Letter: To prove the existence of an employment relationship and outline the agreed-upon terms (salary, notice period, job description).
• Pay Slips or Bank Statements: To prove your monthly gross salary (critical for calculating compensation and unpaid terminal dues).
• The Show-Cause Letter: The initial written notice of allegations sent to you by the employer (if any).
• Your Written Response: Your written defense to the show-cause letter.
• Invitation to Disciplinary Hearing: Proof of whether you were given adequate notice and the right to be accompanied by a colleague or union representative.
• Termination / Dismissal Letter: The final letter stating the reasons for your termination.
• Certificate of Service: The statutory document your employer is legally required to issue upon termination under Section 51 of the Employment Act.
• Emails, Letters, or WhatsApp Chats: Any correspondence showing unfair treatment, discrimination, or a hostile work environment (crucial for constructive dismissal cases).

2. Step-by-Step Filing Procedure

1.Attempt Internal Grievance or Conciliation:Highly Recommended First Step.

Before rushing to court, you should exhaust internal dispute resolution mechanisms if they exist in your employment contract or HR manual. You may also lodge a complaint with a Local Labour Officer under the Ministry of Labour, who will attempt to mediate and issue a report.

2.Drafting and Filing Pleadings:Initiating the Suit.

If mediation fails or you choose to go directly to court, your advocate will draft the Memorandum of Claim, compile the supporting documents, and file them electronically through the Judiciary’s e-filing portal. You must pay the requisite court filing fees.

3.Service of Summons:Within 14 Days of Filing.

Once filed, the court issues a Summons to Enter Appearance. Your advocate must formally serve this Summons along with the filed Claim documents onto the employer (the Respondent) to notify them of the suit.

4.Employer’s Response:Within 14 to 21 Days of Service.

The employer must file a Memorandum of Defence (or Response to Claim) and their own witness statements within the prescribed time (usually 14 to 21 days depending on the specific summons). If they fail to respond, you can apply for a default judgment.

5.Pre-Trial Directions & Hearing:Setting the Trial Date.

Both parties appear before the judge or registrar for pre-trial conference directions to narrow down issues, confirm all documents are exchanged, and schedule a hearing date where both sides will testify and be cross-examined.

3. Strict Timelines & Limitation Periods

Under Kenyan law, delaying your claim can cause you to lose your legal right to seek redress entirely:

Action / Forum	Strict Deadline	Legal Basis
Filing with the Labour Officer	Within 3 months from the date of dismissal.	Section 47(1) of the Employment Act, 2007
Filing directly in the ELRC	Within 3 years from the date of dismissal.	Limitation of Actions Act (Cap 22) / Court Precedent
Constructive Dismissal Claims	Must be filed promptly after resigning due to the employer’s fundamental breach (delaying too long implies waiver of the breach).	Case Law / Section 49 of the Employment Act

💡 Critical Legal Note on “Minimum Service”

Previously, Section 45(3) of the Employment Act stated that an employee must have at least 13 months of continuous service to file an unfair termination claim. The Kenyan courts have declared this threshold unconstitutional. This means even if you are terminated unfairly during probation or after working for just a few months, you have the full right to file a claim in court.