Hezekiel Oira v Kenya Broadcasting Corporation & another [2013] KEELRC 830 (KLR)
The bottom line
#Kenya's Industrial Court ruled KBC unfairly fired its Corporation Secretary without a hearing and awarded him over Kshs.5.7 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the Claimant's employment was lawful and fair
The termination was unfair under Section 45 of the Employment Act, 2007 because the Claimant was given no opportunity to defend himself before suspension or termination, contrary to the law and the Respondent's Code of Regulations.
Section 45(2) of the Employment Act places the burden on the employer to prove a valid and fair reason and a fair procedure. The Claimant was suspended while out of the country, never learned the outcome of investigations, and his termination letter was delivered to his house girl. The Respondents' own witness did not know whether any hearing was held or whether the Code of Regulations' disciplinary procedures were followed. There was therefore no evidence of any hearing, breaching Section 41 and the Code of Regulations, and rendering the termination unfair.
Whether the Claimant's acquittal in the criminal proceedings vitiated the termination
No. Acquittal in a criminal case does not automatically immunise an employee from disciplinary action; the two processes are distinct with different standards of proof, and the sequencing of the termination before the criminal proceedings did not compromise the disciplinary process.
Applying its earlier decision in David O. Owino v Kenya Institute of Special Education, the Court held that criminal trials and internal disciplinary proceedings are distinct processes. The termination preceded the criminal proceedings, so the sequencing did not by itself taint the disciplinary process. The Court thus examined only the disciplinary procedure actually adopted by the Respondents, finding it wanting for want of a hearing.
Quantum of the award
The Claimant was awarded 12 months' salary as compensation for unfair termination, one month's notice pay, salary for the suspension period, travel allowance, 35 days' leave pay, MD acting allowances (limited to figures admitted by the Respondents), and a domestic allowance, totalling Kshs.5,742,410.
Salary was computed from the May 2010 payslip discounted by Kshs.17,100 Mtangazaji dividends, adopting Kshs.322,335 as monthly salary. Acting allowance claims for Deputy Managing Director failed for want of evidence, and the Managing Director acting allowance was limited to figures admitted by the Respondents since reliance on a third party's contract was unjustified. Reinstatement was refused as not merited and improperly raised in submissions.
Legal principles established
#- Acquittal in a criminal case does not automatically render an employee immune to disciplinary action by an employer
- A fair termination requires both substantive justification and procedural fairness
- An employee suspended pending investigation has a legitimate expectation of being heard before termination is considered
Court orders
#- 1.12 months' salary for unfair termination (Kshs.3,868,020)
- 2.One month's salary in lieu of notice (Kshs.322,335)
- 3.Salary from 23rd June 2010 to 6th September 2010, 71 days (Kshs.762,860)
- 4.2 months' basic salary for travel allowance (Kshs.294,670)
- 5.Allowances for acting in the position of MD (Kshs.64,467)
- 6.Domestic allowance (Kshs.54,000)
- 7.Pay in lieu of 35 leave days (Kshs.376,058.30)
- 8.Total award of Kshs.5,742,410
- 9.The Respondents to pay the costs of the case
- Jurisdiction invoked
- Employment and labour relations jurisdiction under Article 162(2) of the Constitution (Industrial Court of Kenya at Nairobi)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Hannington Kyengo Munyao & 213 others (all petitioning on their behalf and on behalf of 206 others as members of Africa Inland Church Muisuni) v Benard Nguyo & 9 others [2021] KEELC 4244 (KLR)[2021] KEELC 4244 (KLR)19 Feb 2021
- Henry Muema Kimanthi v Nairobi City Water and Sewarage Company Limited [2016] KEELRC 1393 (KLR)[2016] KEELRC 1393 (KLR)20 Jan 2016
- Wilfred Samson Mutua v Kenya Wildlife Service [2014] KEELRC 261 (KLR)[2014] KEELRC 261 (KLR)22 Sept 2014
Cite this brief
#Cite this brief
Caselaw, "Hezekiel Oira v Kenya Broadcasting Corporation & another [2013] KEELRC 830 (KLR)", Case Analysis (2013). Cause No 299 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/830/eng@2013-10-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.