Career advice · Updated October 2026

Summary Dismissal in Kenya: What Counts as Gross Misconduct and How It Must Be Handled

“You are dismissed with immediate effect” is one of the hardest letters to receive at work. Summary dismissal in Kenya is allowed, but only in narrow circumstances and only after a fair process. Section 44 of the Employment Act, 2007 sets out when an employer may dismiss without notice, and section 41 says the employee must still be heard first. This guide explains both, from the employee’s side and from HR’s.

What summary dismissal means

Section 44(1) defines summary dismissal as termination without notice, or with less notice than the employee is entitled to under the law or the contract. Section 44(2) then states the general rule: no employer has the right to do this, except as the section allows.

The exception is in section 44(3). An employer may dismiss summarily when the employee has, by their conduct, shown that they have fundamentally breached their obligations under the contract of service. That is a high bar. Lateness once, a missed target or a heated exchange will rarely meet it on its own; serious, deliberate or repeated misconduct might.

The seven gross misconduct grounds in section 44(4)

Section 44(4) lists matters that may amount to gross misconduct justifying summary dismissal:

1. Absence without leave or lawful cause from the place of work. Example: disappearing for three days without calling in or getting permission.
2. Intoxication during working hours that makes the employee unwilling or unable to work properly. A driver or machine operator reporting drunk is the classic case.
3. Wilful neglect or careless and improper performance of work the employee had a duty to do carefully and properly, for instance a cashier ignoring cash-handling controls.
4. Abusive or insulting language or behaviour toward the employer or a person placed in authority over the employee.
5. Knowingly refusing to obey a lawful and proper instruction within the scope of the employee’s duties. The instruction has to be lawful: refusing to falsify records is not misconduct.
6. Arrest for a cognizable offence punishable by imprisonment, where the employee is not released on bail, bond or otherwise within 14 days.
7. Committing, or being reasonably suspected of committing, a criminal offence against the employer or to the substantial detriment of the employer or its property, such as theft or fraud.

The list is not closed. Section 44(4) says it does not stop either side from arguing that the facts do or do not amount to lawful grounds, or that other conduct not listed does. So an employer can rely on other serious misconduct, and an employee can argue that what happened was not serious enough.

Suspicion is enough, but it must be reasonable

Ground 7 covers reasonable suspicion, and section 43(2) says the reason for termination is what the employer genuinely believed at the time. An employer does not need a criminal conviction to dismiss for theft. It does need a genuine belief based on reasonable grounds, which usually means an investigation and evidence the employee has had a chance to answer.

A hearing is still required

This is where most employers go wrong. Section 41(2) says that before summarily dismissing an employee under section 44(3) or (4), the employer must hear and consider any representations the employee makes, and those of a colleague or union representative the employee chooses. Section 41(1) adds that the reason must be explained in a language the employee understands.

So “gross misconduct” changes the notice, not the need for fairness. A dismissal that skips the hearing can be found unfair even where the misconduct was real, with compensation under section 49. Our guide to unfair termination in Kenya explains how courts weigh reason and procedure, and what awards look like.

A sound process for HR usually runs like this:

1. Investigate promptly and keep the evidence: CCTV, cash reports, emails, witness statements. A short paid suspension may be appropriate while you do.
2. Issue a written show-cause letter setting out the specific allegation and the evidence.
3. Give reasonable time to respond, and let the employee bring a colleague or union representative.
4. Hold the hearing, keep minutes and genuinely consider the response, including any mitigation.
5. Decide, and give the outcome and reasons in writing, with the right to appeal.

Employers with 50 or more employees must also give staff written disciplinary rules and grievance steps as part of their employment particulars, under section 12. Following your own HR manual matters, because section 45(5) looks at the employer’s previous practice and any earlier warning letters.

Absence and desertion: protect yourself in writing

Absence is the most common ground in practice, and the facts are often disputed. In Isindu v Lavington Security Guards Ltd (2017), a guard with about ten years’ service said he was told verbally that his job was over; the employer said he deserted. The courts found that he had deserted and dismissed his claim for compensation, noting that he had not made any immediate protest in writing.

The practical lessons run both ways. Employees who are sent home should put it in writing straight away: a dated email or letter saying you were told not to report and asking for the reason. Employers who think someone has absconded should write to the employee’s last known address, phone and email asking them to explain, before treating the job as ended. Genuine illness reported properly is lawful cause; see our sick leave guide.

What you are paid if summarily dismissed

Summary dismissal for lawful cause removes the right to notice, but not to money already earned. Section 18(4) says an employee summarily dismissed for lawful cause must be paid all moneys, allowances and benefits due up to the date of dismissal. That normally includes:

• salary for days worked up to the dismissal date;
• pay for earned but untaken annual leave (see our annual leave guide);
• any other benefits that had already accrued under the contract; and
• a certificate of service under section 51, which is not a reference and cannot include false statements.

Your employer cannot withhold earned salary as punishment. Deductions are limited to those allowed by section 19, such as up to one day’s wages for each full day of unauthorised absence. Check your final figures with the terminal dues calculator and read the payslip guide if the final payslip is unclear. Your NSSF and any pension savings remain yours; Business Radar explains the pension withdrawal rules when you leave a job.

If you think your summary dismissal was unfair

1. Respond in writing to the dismissal letter, stating your side and asking for the hearing minutes and evidence.
2. Use any internal appeal within the time your HR manual allows.
3. Lodge a complaint with the county labour officer within three months under section 47(1), which expressly covers summary dismissal.
4. Or file at the Employment and Labour Relations Court, generally within three years under section 89.

For a full overview of workplace rights, see our plain-English guide to the Employment Act, and for dismissal with notice rather than on the spot, read termination notice in Kenya.

Key takeaways

• Summary dismissal means ending employment without the notice the employee is entitled to, and it is only allowed for a fundamental breach of the contract.
• Section 44(4) lists seven examples of gross misconduct, but the list is open and both sides can dispute whether the facts qualify.
• Even for gross misconduct, section 41 requires the employer to explain the reason and hear the employee, with a colleague or union representative present.
• A summarily dismissed employee must still be paid all salary, allowances and benefits earned up to the dismissal date.
• Put everything in writing, especially if you are told verbally not to come back.

Frequently asked questions

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