Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 200 of 2011· [2013] KEELRC 915 (KLR)

Wilberforce Ojiambo Oundo v Regent Management Limited [2013] KEELRC 915 (KLR)

Industrial Court of Kenya
2 December 2013
4,631 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

#

A Kenyan court awarded a dismissed CEO over KShs 8 million because his employer could not prove wrongdoing and denied him a fair hearing.

What this practically means

#

Executive summary

#
The Claimant, Chief Executive Officer of Regent Management Limited on a three-year fixed term contract with a renewal option, was suspended on 17th August 2010 amid allegations of the loss of Kshs. 5 Million from the NHIF account, publicly disowned by notice in the Daily Nation, and after a contested disciplinary process summarily dismissed on 22nd November 2010. The Court framed the central issue as whether the summary dismissal was justifiable in both reason and procedure under Sections 41, 43 and 45 of the Employment Act, 2007. It found no valid reason: the forensic audit traced the funds to other staff, the Claimant never handled the cash, and the financial policies allegedly breached were never produced. Procedurally, the Claimant was denied requested documents, kept on unpaid suspension beyond its term, denied the chance to respond to adverse audit findings, and his salary was withheld pending a criminal case, tainting the whole process. The dismissal was held unfair and 12 months' salary in compensation awarded, together with three months' pay in lieu of notice, unpaid salary for the suspension period, pay in lieu of 50 days' leave (the Respondent having produced no leave records) and prorata gratuity. The claim for the contract's remaining value (specific performance), entertainment expenses, leave allowance and general damages were dismissed. The Respondent's counterclaims largely failed, save for two insurance premiums recoverable from the award. Costs went to the Claimant with no order for interest, the award being subject to statutory deductions under Section 49(2) of the Employment Act.

Key legal issues

#
01

Whether the Respondent proved a valid reason for summary dismissal

Holding

No valid reason was established; the loss of Kshs. 5 Million was not attributable to the Claimant, who never handled the cash, and the financial policies allegedly breached were not produced.

Reasoning

The forensic audit traced the funds to the cashier and another staff member, not the Claimant. The financial policies and standard operating procedures allegedly contravened were never availed to the Court, and evidence showed cash payments were not unusual in the Respondent's operations. Finance department incompetence could not be wholly assigned to the Claimant, who was not trained in finance.

p. 7
02

Whether the procedure adopted was fair

Holding

The procedure was unfair: documents requested were not supplied, the suspension lapsed and was backdated, salary was withheld pending a criminal case, and the Claimant was not interviewed on the forensic audit findings.

Reasoning

The Claimant was denied supporting documents needed to prepare his defence, kept on unpaid suspension beyond its term, and denied an opportunity to respond to adverse audit findings. Withholding salary contrary to the contract tainted the entire disciplinary process. The concurrent criminal case did not excuse these breaches of fair hearing.

p. 7
03

Whether the Industrial Court had jurisdiction over the alleged injurious public notice

Holding

The Court's jurisdiction under Section 12(1) of the Industrial Court Act extends to defamation arising from the employment relationship, but the Claimant having pleaded no particulars of defamation, the Court did not pursue the point; it nonetheless found the notice unwarranted and in bad faith.

Reasoning

Section 12(1) covers all disputes emanating from the employment relationship, including alleged defamation. However, since the Claimant did not plead particulars of defamation, the court declined to make findings on that head, though it observed the notice was published during suspension without evidence of breach of suspension conditions.

p. 8
04

Whether the Respondent's counterclaims were proved

Holding

The counterclaims for the Kshs. 5 Million loss, NHIF business loss, excess entertainment allowance and petty cash failed; only the insurance premium counterclaims succeeded.

Reasoning

The Court found no culpability on the Claimant's part for the loss of Kshs. 5 Million or the NHIF business loss, and the entertainment allowance and petty cash claims were unproved. The two insurance premium counterclaims were proved and ordered recoverable from the Claimant's award.

p. 10

Legal principles established

#
  • An employer must prove both the reason for termination and that a fair procedure was followed.
  • An employer need not await the outcome of criminal proceedings before completing disciplinary action, but equally cannot hold the employee's rights in abeyance pending the criminal trial.
  • An employer can only demand best practice performance from an employee if it embraces the same standard at corporate level.
  • An employee on suspension remains innocent until proved otherwise and has a legitimate expectation to respond to adverse findings from an investigation.
  • Where an employer fails to provide leave records under Sections 10 and 74 of the Employment Act, the Court invokes Section 10(7) in favour of the employee's claim.

Court orders

#
  1. 1.Award of Kshs. 3,975,720 being 12 months' salary in compensation for unfair termination
  2. 2.Award of Kshs. 993,930 being 3 months' salary in lieu of notice
  3. 3.Award of Kshs. 1,236,890 being salary for August to 22nd November 2010 (3 months and 22 days)
  4. 4.Award of Kshs. 552,183 being pay in lieu of 50 days' leave
  5. 5.Award of Kshs. 1,375,920 being prorata gratuity at 20% of basic salary (35 months)
  6. 6.Total award of Kshs. 8,134,643 in favour of the Claimant
  7. 7.Dismissal of the claim for value of the remaining term of the contract
  8. 8.Dismissal of the claims for refund of entertainment expenses, leave allowance and general damages
  9. 9.Dismissal of the Respondent's counterclaims for Kshs. 5,000,000, Kshs. 4,824,000, Kshs. 340,397.80 and Kshs. 2,000
  10. 10.Recovery of Kshs. 12,473 and Kshs. 117,867 insurance premiums for motor vehicles KAZ 234Z and KBJ 961H from the Claimant's Award
  11. 11.Costs of the case awarded to the Claimant; no order for interest
  12. 12.Award subject to statutory deductions in accordance with Section 49(2) of the Employment Act, 2007

Authorities

#

Legislation

  • Employment ActSection 43(1)
  • Employment ActSection 45 (2)
  • Employment ActSection 41
  • Employment ActSection 45
  • Employment ActSections 10 and 74
  • Employment ActSection 10(7)
  • Employment ActSection 49(2)
  • Industrial Court ActSection 12(1)
  • Penal CodeSection 282

Cases cited (2)

  • Alphonce Machanga Mwachanya Vs Operation 680 Limited
    [2013] eKLR
  • Hezekiel Oira Vs Kenya Broadcasting Corporation & Another
    [2013] eKLR
Jurisdiction invoked
Section 12(1) of the Industrial Court Act - disputes emanating from an employment relationship

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Wilberforce Ojiambo Oundo v Regent Management Limited [2013] KEELRC 915 (KLR)", Case Analysis (2013). Cause No 200 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/915/eng@2013-12-02

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