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ELRCAllowedNot stated (Claim filed 23.2.2012)· [2013] KEELRC 803 (KLR)

Erick Achola Ombuoro v Chemilil Sugar Co. Ltd [2013] KEELRC 803 (KLR)

Industrial Court of Kenya
18 September 2013
HWHellen Wasilwa
1,332 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Chemilil Sugar had to pay an accountant over Ksh 692,000 because it fired him without notice or a hearing.

What this practically means

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Executive summary

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The claimant, Erick Achola Ombuoro, sued Chemilil Sugar Co. Ltd for unfair termination and unpaid employment dues. He was employed in March 2006 as an accountant and later promoted to Financial Accountant I, while also serving unpaid as secretary to Chemilil Football Club, a welfare activity of the respondent. Following the release of a player from the club on the advice of company management, he was suspended on 9.3.2010 and summarily dismissed on 16.6.2010 on grounds of gross misconduct. He contended that the dismissal, effected by the Human Resource Manager without board ratification and without a hearing or stated reasons, was unjustified, and claimed Ksh 246,438.48 comprising underpayments, unpaid June 2010 salary, unpaid notice pay and underpaid leave entitlements. The suit proceeded by formal proof as the respondent, though served, never filed a response. The court identified two issues: whether the dismissal was justified and what remedies were due. Applying section 41(1) and (2) of the Employment Act 2007 and Article 50(1) of the Constitution, and noting that ILO Convention 158's hearing requirement is domesticated in Kenyan law despite non-ratification, the court held the dismissal procedurally flawed and unfair, particularly as it stemmed from honorary welfare duties unrelated to his substantive appointment. The court declared the termination unfair and unjustified, awarded the claimed dues of Ksh 246,236/=, six months' salary (Ksh 446,076/=) as compensation, a certificate of service, and costs to the claimant, all subject to statutory deductions.

Key legal issues

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01

Whether the summary dismissal of the claimant was justified

Holding

The dismissal was unfair and unjustified because the claimant was dismissed without notice or a hearing in breach of section 41 of the Employment Act and Article 50(1) of the Constitution.

Reasoning

The court found the dismissal arose from welfare matters connected to his honorary role as football club secretary, not his substantive appointment as Financial Accountant. The Human Resource Manager dismissed him without a hearing and the board never ratified the decision. Section 41(1) and (2) of the Employment Act require an explanation and an opportunity to make representations before termination; these were flouted, also offending Article 50(1) on fair hearing. Though Kenya has not ratified ILO Convention 158, its requirement of a hearing is domesticated in Kenyan law.

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02

What remedies the claimant is entitled to

Holding

The claimant was awarded his claimed dues of Ksh 246,236/= plus six months' salary as compensation for unfair termination, a certificate of service and costs.

Reasoning

The claimant proved underpayments, unpaid June 2010 salary, unpaid notice pay and underpaid leave entitlements totalling Ksh 246,236/=. The court exercised its discretion under the employment law framework to award six months' gross salary (Ksh 74,346 x 6 = Ksh 446,076) as compensation for the unfair termination, together with a certificate of service, all subject to statutory deductions.

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Legal principles established

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  • An employer must, before terminating employment on grounds of misconduct, explain the reason to the employee and give the employee an opportunity to be heard, failing which the dismissal is unfair.

Court orders

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  1. 1.Declaration that the termination of the claimant by the respondents was unfair and unjustified
  2. 2.Respondents to pay the claimant Ksh 246,236/= claimed for
  3. 3.Respondent to pay claimant 6 months' salary as compensation for unfair termination, amounting to Ksh 446,076/=
  4. 4.Total awarded Ksh 692,312/= less statutory deductions
  5. 5.Respondent to issue the claimant with a certificate of service
  6. 6.Respondents shall pay costs of the suit

Authorities

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Legislation

  • Employment Act 2007Section 41(1)
  • Employment Act 2007Section 41(2)
  • Employment Act 2007Section 42(1)
  • Employment Act 2007Section 44(3) and (4)
  • Constitution of Kenya 2010Article 50(1)
  • ILO Convention 158, Termination of Employment ConventionArticle 7
Jurisdiction invoked
Employment and labour relations jurisdiction (Employment Act 2007); the judgment does not expressly cite the jurisdictional provision

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Erick Achola Ombuoro v Chemilil Sugar Co. Ltd [2013] KEELRC 803 (KLR)", Case Analysis (2013). Not stated (Claim filed 23.2.2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/803/eng@2013-09-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.