Fanuel Ogutu Akali v Wameer Wholesalers And Distributors Limited & another [2013] KEELRC 769 (KLR)
The bottom line
#A Kenyan employer who used police arrest to force an employee to refund alleged shortages was ordered to pay a year's salary for unfair termination.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was unfairly terminated
Employment was constructively and unfairly terminated; the arrest was to intimidate the claimant into refunding alleged shortages
The respondents caused the claimant's arrest over alleged shortages without genuine intention to pursue criminal charges, aiming to coerce a refund. The claimant was entitled to consider himself terminated after the arrest and refusal to resolve grievances. No notice or hearing was given as required under section 41 of the Employment Act, 2007.
Limitation - preliminary objection under section 47 of the Employment Act, 2007
Suit not time barred; conciliation proceedings tolled the limitation period
The respondents argued the suit was filed outside the prescribed three years. Counsel did not submit on the objection, which the court deemed abandoned. In any event, the suit was filed shortly after the failure of conciliation ending with the Ministerial letter of 10.06.2011, so it was within time.
Remedies for unfair termination
Maximum 12 months' salary awarded (Kshs.120,000.00) plus one month's pay in lieu of notice and pay for 5 days worked
Given the gross abuse of the criminal justice process by the respondents, the court awarded the maximum 12 months' gross pay of Kshs.120,000.00, one month's salary in lieu of notice (Kshs.10,000.00) and Kshs.2,660.00 for 5 days worked in June 2009. Severance and unproved heads were refused.
Legal principles established
#- It is unfair labour practice for an employer to invoke the criminal justice process in matters falling within the administrative grievance management or disciplinary process
- Termination without notice and hearing breaches section 41 of the Employment Act, 2007
Court orders
#- 1.A declaration that the claimant's employment was constructively and unfairly terminated
- 2.The respondents to pay the claimant Kshs.232,660.00 by 1.11.2013, failing interest to be payable at court rates from the date of judgment till full payment
- 3.The respondent to deliver to the claimant the certificate of service by 1.11.2013
- Jurisdiction invoked
- Employment and labour relations dispute under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fanuel Ogutu Akali v Wameer Wholesalers And Distributors Limited & another [2013] KEELRC 769 (KLR)", Case Analysis (2013). Cause No 122 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/769/eng@2013-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.