Philemon Wachara Obenge v Easy Mart Limited [2013] KEELRC 893 (KLR)
The bottom line
#A Kenyan court awarded a dismissed manager KShs. 671,000 because his employer had no written contract and never gave him a hearing.
What this practically means
#Executive summary
#Key legal issues
#Proper joinder of the Respondent given the name in the pleadings
The objection was dismissed as a mere technicality; the Respondent's identity and the employment relationship were not in doubt
The submission was raised late in final submissions, no documents proved the Respondent's actual name, the only missing word was 'Supermarket' in a business that was common cause to be a supermarket, and the existence of the employment relationship was undisputed. The court dispensed with the issue as a technicality and dealt with the case on its merits.
The Claimant's monthly salary
The court adopted Kshs. 70,000 as the monthly salary under Section 10(7) because the employer failed to comply with Sections 9 and 10 of the Employment Act
Section 9(1) requires contracts of service of three months or more to be in writing and Section 9(2) places that responsibility on the employer; Section 10(2) requires remuneration particulars. The Respondent failed to fulfil these obligations, so the court invoked Section 10(7) and adopted the Claimant's stated salary. The underpayment claim therefore succeeded.
Whether the Claimant was on probation
The employment contract did not meet the statutory definition of a probationary contract; the probation claim was misplaced
Section 2 of the Employment Act defines a probationary contract as one of not more than twelve months' duration, in writing and expressly stating it is probationary. The Claimant's oral employment contract did not satisfy these criteria, so the Respondent's contention that the Claimant was on probation at termination could not stand.
Validity of the reason for termination
The Respondent failed to advance a valid reason for the termination
The suspension letter gave no clear reason; the results of the investigation were never communicated to the Claimant with an opportunity to respond; termination cited gross misconduct but a detailed elaboration of reasons was only issued nearly two months later in a 'to whom it may concern' letter. Such a post-termination general explanation falls below the Section 45(2) bar.
Procedural fairness of the termination
The termination was procedurally unfair as the Claimant was never given an opportunity to defend himself
Following Loice Otieno v Kenya Commercial Bank Ltd, the doctrine of natural justice is an essential part of the employment relationship and section 41 procedures must be complied with even where summary dismissal is contemplated. The Respondent's own witness confirmed the Claimant was not given a chance to defend himself, so the termination was unfair within Section 45.
Legal principles established
#- Where an employer fails to draw up a written contract as required, the court may adopt the employee's stated salary under Section 10(7) of the Employment Act
- A probationary contract must be in writing and expressly state that it is for a probationary period
- An employee on suspension pending investigation has a legitimate expectation of being given an opportunity to respond to adverse findings; suspension is not a final disciplinary action
- A general explanation of reasons for termination issued post termination falls below the bar set by Section 45(2)
- An employer must comply with the procedures in section 41 of the Employment Act even where summary dismissal is contemplated
Court orders
#- 1.Salary underpayments (Kshs. 50,000 x 6 months) Kshs. 300,000
- 2.3 months' salary in compensation for unfair termination Kshs. 210,000
- 3.One month's salary in lieu of notice Kshs. 70,000
- 4.Salary for 1st-7th August 2012 Kshs. 16,333
- 5.Salary for the period of suspension (32 days) Kshs. 74,667
- 6.Total award of Kshs. 671,000 in favour of the Claimant
- 7.Respondent to meet the costs of the case
- Jurisdiction invoked
- Employment and labour relations jurisdiction under the Industrial Court (first-instance unfair termination and terminal benefits claim under the Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Philemon Wachara Obenge v Easy Mart Limited [2013] KEELRC 893 (KLR)", Case Analysis (2013). Cause No 2044 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/893/eng@2013-11-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.