Show Cause Letter in Kenya: How Employers Should Draft One

When an employee challenges a dismissal, the first document the Employment and Labour Relations Court (ELRC) usually reads is the show cause letter. If it is vague, rushed or inconsistent with the eventual charge, the employer starts on the back foot, however strong its evidence. A good show cause letter in Kenya does three things: it tells the employee exactly what is alleged, it gives a real chance to respond, and it makes clear that dismissal is possible. This guide explains what the law requires, what the courts have accepted and criticised, and what to put in the letter.

What the Employment Act requires of a show cause letter in Kenya

The Employment Act does not use the phrase “show cause letter” and does not prescribe a response period. Section 41(1) requires the employer, before terminating for misconduct, poor performance or physical incapacity, to explain to the employee, in a language the employee understands, the reason it is considering termination, and entitles the employee to have another employee or a shop floor union representative present. Section 41(2) requires the employer to hear and consider the employee’s representations before terminating or summarily dismissing under section 44(3) or (4).

In practice the show cause letter is how section 41(1) is satisfied in writing. Section 43 requires the employer to prove the reason it relied on, and section 45(2) treats a termination as unfair if the employer cannot prove a valid reason and fair procedure.

The ELRC checklist for a show cause letter

In Bernard Ngugi v G4S Security Services Kenya Limited, the ELRC adopted guidance from an earlier decision that describes the notice in detail. It should give the employee, in writing and in a language the employee understands, the misconduct and full particulars of the allegations. It should state the time-frame and method for raising a defence, and warn that punishment, including termination or dismissal, is contemplated if the employee does not exculpate himself or herself. The guidance also expects an objective, factual investigation, an opportunity to be heard, call and cross-examine witnesses and produce documents, and assistance from a union representative or workmate. Aggravating and mitigating circumstances, including the employee’s record, should be put to the employee, who should then be told the findings, the decision and any right of appeal.

The same case criticised an employer that gave less preparation time than its own notice promised, and whose position shifted between a contractual termination and a disciplinary finding.

What to put in a show cause letter

The following is our recommended content, built from the checklist above.

The allegation, particularised. State what happened, when, where and with what amount or document. “Misconduct” or “lack of integrity” alone is not enough for the employee to answer.

The rule or policy breached. Quote the clause of the contract, handbook or code, and confirm the employee received it.

The evidence. Attach the documents you rely on or say exactly how the employee can inspect them, and identify any witnesses.

The response date and method. Say whether a written response is required, by when and to whom.

The hearing. Give the date, time and venue, and state the right to be accompanied by a colleague or union representative.

The possible consequences. Say plainly that dismissal, including summary dismissal if the allegation is gross misconduct, may follow.

Suspension, if any. If the letter also suspends the employee, say that suspension is neutral and not a finding. In Leopard Beach and Spa v Imbochi, the ELRC on appeal treated a show cause notice that doubled as a suspension letter as a common practice, and set aside a finding that it made the process unfair.

Plain language. Use the language the employee understands, and keep a signed acknowledgement of receipt.

How much time to give

The Act is silent, and the cases are uneven. In Onunga v Equator Bottlers Ltd, the employer’s notice asked for a response by the next day, a hearing followed six days after the notice, and the court found the employer had met procedural fairness because the employee knew the allegation, could respond in writing and orally, and was told he could be accompanied. In Rotich v Agricultural Finance Corporation, the employer’s witness conceded that hearing invitations were served on very short notice, and the employer’s witness said the employee attended three hearings and was given access to the records on the system.

We would not treat those outcomes as a safe harbour. Our recommendation is at least two to three working days for a simple allegation, and longer where the employee needs documents, as the extra hearing in Rotich shows.

Keep the charge and the decision aligned

The letter sets the boundaries of the case. If the investigation uncovers a new allegation, issue a fresh or supplementary notice and allow time to respond. A decision letter that rests on a ground the employee was never asked about invites a section 41 challenge, and a changed position can look like bad faith, as Bernard Ngugi shows.

Substance still matters

A well-drafted letter does not rescue a case that lacks evidence. In Onunga the court found the procedure fair, but the employer failed to put before it the CCTV footage it had relied on at the hearing, and the court drew an inference that the footage would have supported the employee. It held that the employer had not discharged its burden under sections 43 and 45 and awarded ten months’ gross pay in compensation. Keep the evidence file in a form you can produce.

For the investigation that comes before the letter, see our guide to investigating employee fraud. For what follows the hearing, see our guide to internal appeals against dismissal.