Peter Okumu Oloo v Simba Pharmaceuticals Ltd [2013] KEELRC 842 (KLR)
The bottom line
#A Kenyan court ruled Simba Pharmaceuticals unfairly sacked an employee without reasons or a hearing, awarding him damages, notice pay, service pay and a certificate of service.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal was procedurally and substantively fair
The dismissal was unfair in both substance and procedure: the letter gave no reasons, no hearing was accorded, and the alleged grounds (forgery, bounced cheque, poor performance) were unproved or legally untenable
The dismissal letter merely referred to an evaluation of work performance and attitude without stating findings or reasons. The Claimant was never told the reasons nor heard. Allegations of forgery were undocumented, verbal warnings were not recorded, the bounced cheque was a third party's obligation, and no evidence of poor performance or written warning was produced. The Respondent therefore failed to meet sections 41, 43 and 45 of the Employment Act.
Whether non-performance justifies summary dismissal
No; poor performance only supports ordinary termination on notice, not summary dismissal, which is reserved for gross misconduct under section 44(4) of the Employment Act
The court distinguished ordinary termination from summary dismissal. The grounds for summary dismissal are statutorily confined to gross misconduct under section 44(4). Poor performance requires proof and a process of warnings; the Respondent produced no evidence of poor performance nor any warning, so it could not invoke summary dismissal.
Whether the Claimant proved that the dismissal was motivated by his paternity leave request
The allegation failed for want of evidence: no letter requesting paternity leave or documentation of the birth was tendered
Although the Claimant testified that the Country Manager was displeased by his paternity leave request, he produced no application for leave or proof of the birth. The Respondent's witness also denied knowledge of the application. The court accepted the Respondent's submission that the allegation was unsupported.
What remedies follow from a finding of unfair termination
One month's salary in lieu of notice, unpaid salary for 18 days, service pay at 15 days per year worked, and compensation equivalent to two months' salary under section 49(1)(c), plus a Certificate of Service and costs
Having found unfair termination, the court applied section 49(1)(a) for notice pay given the contractual one-month notice, awarded the admitted unpaid 18 days' salary, service pay per precedent for one year of service, and assessed compensation at two months' salary considering the Claimant's short length of service and the manner of dismissal. A Certificate of Service was directed under section 51.
Legal principles established
#- A dismissal letter that does not give reasons or the result of any evaluation does not comply with sections 41, 43 and 45 of the Employment Act and the termination is unfair in substance and procedure
- An employee must be informed of the reasons for termination and given a hearing before termination
- Non-performance cannot be a ground for summary dismissal; it can only justify ordinary termination, and grounds for summary dismissal are the gross misconduct grounds under section 44(4)
- An employee cannot be penalised for a third party's bounced cheque
- An employer cannot condition payment of terminal dues on collection of outstanding debts that are not the employee's responsibility
- Service pay is provided under section 35(5) read with section 35(6) of the Employment Act and is set at 15 days salary per year worked
Court orders
#- 1.The Respondent to issue a Certificate of Service to the Claimant as provided by law
- 2.Judgment for the Claimant against the Respondent for Kshs.89,600/= (comprising Kshs.28,000 one month's salary in lieu of notice, Kshs.16,800 salary for 18 days worked, Kshs.14,000 service pay and Kshs.56,000 compensation for unfair termination)
- 3.Costs of the case to the Claimant
- Jurisdiction invoked
- Employment and labour relations jurisdiction over a claim of unfair termination under the Employment Act 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ochieng v Techno Service Limited (Cause 1506 of 2016) [2024] KEELRC 1161 (KLR)[2024] KEELRC 1161 (KLR)26 Apr 2024
- Samwel Chege Njogu v Easy Coach [2018] KEELRC 1561 (KLR)[2018] KEELRC 1561 (KLR)27 Jun 2018
- Simon Mule Mutua & another v China National Aero-Technology International Engineering Ltd [2015] KEELRC 267 (KLR)[2015] KEELRC 267 (KLR)5 Oct 2015
- Simon Mule Mutua & another v China National Aero-Technology International Engineering Ltd [2015] KEELRC 267 (KLR)[2015] KEELRC 267 (KLR)5 Oct 2015
Cite this brief
#Cite this brief
Caselaw, "Peter Okumu Oloo v Simba Pharmaceuticals Ltd [2013] KEELRC 842 (KLR)", Case Analysis (2013). Employment Claim dated 3rd May 2012, filed 21st June 2012 (Industrial Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/842/eng@2013-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.